The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-10-09

Wssa-O1xsous s.a Interesting DIS u~sa0n
bsewvs. shs Rsoordsr and Ar. Wh'.iag ~
90 ths Qusssson sf Label.
oouxr OF szsUoNs-aHNERAL rsns.
Bsfors Recorder Saith
O T-Iu TIE matter q the motion, the par y The
prosscuiou 70 vaoase We order OF Cy Jadge so4-
NJ ohe complaint and recogniAnce IA tas case 70 re-
Surnsd 70 ~ magistrate for . preamnay sxaui. n.
Mr. James Whiting addreased the Court In oppos %
- motion. 10 said shaa Ne argumsns made On u, D.
ysot The other ds had nothing 10 Do with he q
w. merely intended ~ AstAuk-shlsldsd under qs
nrn Of ths noAsn-upoa the defendant psrsouai .aa
upon ths Judge who bad ssusd the order nov So. u
- - vHnAsed. He had suggested the pro, y
q diving Rotaoe 10 hat Judge of tbs attack al
b nads On ths purity q his motives; and II -
quite evident that one great object which -'
complainant had In ths matter was, mot only 70 give
ndulgng IN remarks, the severity and sarcasm OF wat
ns shosehs entirely out Of Pi.os and which he .house
(Nr Ws) business 70 defend Tho Uours from such On
isok, bat was his duty 10 defend himself and esson
COUNSEL ard defendant from lhs insinusons contained
thai argument II had nsvor entered into the heso (
either himself associate to select the Judge bsf re
whom . nal. the motioa n. only object vas 70 moss
fndaat and he would have made The motion before the
Recorder Just readily before the Osy Judge He
che interpretation Of the Court, By whomsoeyer held. The
papers had been placed on die surrepNuously they
oaos b. The intervention Of III The oompsinsns and
without any knowledge thereof the part OF defendant
ais oounse and without giving them an opportunity Of ap
were entitled 70 the order msde by the City Judge. He
would oonnne himself In hts remarks what legmatey
NO right 70 interfere With this mster, and th could
interfere unless violated every well settled prnci ole Of
~ soa Gently v na mt n0b % ~. o's
At honor over ~ ALI tho power the Court had TO
din ect she matnrae 10 return the and com
h<frw
yettrred-
The Rsoorder-Cas The Court compel tho masiitrsts 70
Mr. whung-Eo, but the parties Interested 10 the com.
plaint and the defence can compel him. he (Ar W. did
% Of
90 do his duty. he does not do Il he liable to ndct
mem. Be on } held also that there VI. nothing be
fre he Court on which hiS Honor could cot the rule
made By the CITY Juoge WAS, In matter entitled "rhe
Heops Of Ne Rste Of New York against James Gordon
suppos Of the motion NOT entitled In any cause,
asd how could the Court on soch papers, amend
10 snopos q S Oo.on nsa
point thai tse Court had power review the act
or deoasicn Of former Court; for such review would
power. he denied thai his Honor made order u this
Term h himseK could review ct the next
ssias. .ons :uS;so. - matter Il. Honor had
ths right 70 review IN order made By the CITY
A:s ss 10 % y sss II ss %
night mt the ON Judge ., the nsx term review
dis (be cordes ~ fereneos and orderss And 20 bosh
vosc be like flying block buckets in the @el con.
truay go:ss up and down the hold, wAsre both OF
would Inevitably DO swamped, and BY which The Court
denied the power Of The Recorder 70 review the order OF
City Judge, whether providsaty improvidenty L.
Sas an order Of lhs COURT binding the Court, but .
Decision made b. him ~ 70 the Admssby or evidence,
Or :. 70 vh.. cons: uses An cs.ee would nSs Be de-
Gallon bad been originally made before his Honor,
be would have made the same order q Jadse
MA Honor would act irresps ctye Of the parties.
Ills der or Judge Russell act OF pure discretion
purs dsOrsoa On The psrs Of any rats or any
subject 70 review, either By way Of appeal or writ OF
error Counsel supported his position on this point By co
334 vas oonteadcd he oher ssds, that inasnuoh
Mr.. Bennett had entered into . re,ognkanoe he had
thereby waived hs nigh. . preliminary examination,
ana that amounted 10 essop2eI. Nov he (Ar.
held that there such thing euoppel in criminal
sabec or crimas law, srospt 70 ropuoia.s saaa doc
trne doctrine Of essoppel applied only TO civil cases
No p,ansr !: e.0pPed q an Aci Of at, LOT Hs %ny q
right He might clsim bis right Il ali q mes aud in
was clear and Die that there was agree
msnt thai hearing would be denAnded and uoless me
no hoo tsss ibis was properly entered int,
Such waiver must be rnequvoca, clear and fully under
stood BY sss prsoSss giving But WI, was com plano n,
the othor side thai mis- pubic, no. pri
vale prosecutor the prosccain was not cused 70
notice, nor was the people entitled to notice. papers
come the records OF the court reguisy and In viola
cn o, the rights Of prisoner tba, prisoner may cSne
up any time and inform the Court and II the Csart,
aier an inspection OF the record be saii.Hed Of tie
truth Of the statement, can exercise in authority
ever the pspsss sT nero "',s oa.r, not Ony we 10
wnsi there IN this shi,n warranted the Dnricl
Ao ney 70 rend up 70 the ssh rate 10 gel tie paperi
sr more What rgnI there 10 the complAio ant 10
write x.er 10 the Justice askirg him 70 send down tho
papcs before the oom ole.edf Whs. right had
abe complainant 10 interfere with at oil Was moi that
On pavss Vas hat not motion made without the koow
lee re OF The DEFENDANT b, the mott made By III, de
fsIdsn. 70 g me rsn. q s..nlssson secured !, n% ey
would have been bound % grant The ordcr But he Aus
an ustrcs Attorney vas and wa. heard upon the
motion wss tsorc ay protenoo on The other side mai NJ
Bennett had 20, any naios hal The papers
c'n1Vy 70 the usual and uniform practce-.ee
any such nosoe HO~ did il oons 70 Mr. Ben ,e,rs
knoviecgef Only by the vigilance OF his counsel,
yoov - spa he osios Who wss durnr Nj thss
absest and Then accidentally learned, owing 10 his own
vigilance that the papers had bean sent 70 The Court OF
Hessioos other side had told the Court By
afndsvt Of the learned Dhsrc. Attorney that Judge Rp
sell hsd knowledge thai tho motion was 70 be made before
bin. aud he ntimaled that the 5ton was 10 be SUGGEST
full n made before hat Judge, aud charged the dscn-e
With having decline cd 10 wall 70 MAKE the motion before
this Court o. The grOund hi different secion us, 70 %
had made no sfndavn, and vocld make zone. he hal
s6ved Mr. Galbralh Fdday lha, he pa pcrs were On
back should be made without delay; and Il vas
utterly imnssersi 70 him whesher the Recorder
or Cty Judge presided. There was no co,flct
between Mr.. se6gwicaS and Mr. GsIbrath's statements
Mr Gaibrah The oloie OF The business The lad day
q tern ana openly iss ,aits Es q, p Nd
wrcns In thau Judge R1sssu heard and granted the
eon. me Assistant d aros Attorney couoe<ed that the
character OF The facts which the mo<7n Was buef
could be changed. Nor we're they changed. All
che sndsvib agree 70 the main FEC Of the case Jas
Goe Fandrean I'd not deny hAi NE defendant asked for
hsarng. All thai he decief Was, tnd he (,he Jusoe)
pledged himself thsi the defendant should have hesrng
" ell vss .hal pccsssaryf wers parties 70 deal With
magistrate ~ he we're . rogue or rascsn NJ Cal.
brsih Mr. Bsassu and Mr. Gaup say that wee proposed
% lnser IN TIE reooenz condition that the defend
should have preliminary hcanpg. and that Jussioe
Fandresu suercssed thsi thss was unneoessay jus
Cee FlArdresu does not deny that he said 50,
cod he could NOT hare sid uness was perfectly IN
ocrsocd mat keayicg was 70 be had WnAt ham cOold
DO The oonp dnant be examined before magistrate
Why va be On Nous 70 AVOID m
The Reoovdg-HN be oososdsd that This noel, US
Ne dv Of NE magistrate 10 nturn the papers here; and
vkai would be The Advantage Of On enminAuonf
NJ wnmns-hs merely for The purpose Of The argu