New-York tribune., 1871-10-12

certain whether ho dccied the question or NOT ~ Inv u" d
~ The other c;rSe shall not attempt W o''''"''
MI Stonghton-Your Honor would not attpt ,Hs 10 pre o
CsonS WG Of WC S' jude. Of this court tna, either
one was right, We suppose that yo'H i ~
and hear 1t in that case Yuurse :, ,1ro parn,rd AZ
Judge Ina;rahain-I shall consult Judge bar"'fu' S'
A QUESTION or CoNsTiTUTIoNAIrY
r., IT, L.. ,,,,,or,on-As was about TO observe. this
,u r th case does not stand alone upon the decision
bny, inst read Your Honor will rccohect tne case III
which Baldwin and Cox wero concerned Inc COntrohcr
WAS authorized by tho statute to institute proceedings to
set aside GGsngG Sv asan an the he
& motion to sct aside the judgment in that
wa inserted provision The effect that the Counsel to
the OpOaOn should clone pear n GG ana ana, ta H
was Unconstitutional an " ourt of Appeals affirmed
that decision. And this exactly In point. There
Is ono distinction nOSeys yer e. The scton thcy seek %
The Object Of tho bill, in this case ia not,
as was back in that HDcS to pSHHt Seseo Ss Sas S
dcfraudcd Of Now according to the terms OF the
act Of 1864 If It be constitutional the paintii has the
this so that if this act be regarded as having
any binding force they stu do not maintain their posl,
advantage OF the remedies provided by sections S0 g
and 3sl of the code in one proceeding Section S OF the
at any time before trial. etc. the party to be
amned shall not bo compelled to attend in any other
county than that in which he resides. Sec
s Tine, S the who sssas Now nshep ssoSn
3l the two preceding sections have any reference TO
fo the discovery oOGSS G com
oernng that which says that the Court may OrdGr the
PaiS Pare 10 or G ana Teng se'
tion Now, rules have been adopted Dy the Judges vi
these sections which that the application for an
examination shall be upon affidavit disclosing the nature
Judge IngrahSm~T think the judges understood what
they were doing when they made these rules ~
Nn pIn nd In
whether rules ovcrrue the decision OF the Generh
Term. .,,.
and that there entries in the books and papers OF
which he seeks discovery" are sign Meant how; tte
meet the exigencics Of Rules IL and 49, disclosing the
in order to get discovery they to compel this
defendant 10 bring his books and papers into Court with
fcrrcd to- so far as this be regarded cxamina
ton trial. it is met by the objection that they can
not before issue Is joined The decision n the case
of Bell ag Richmond Barbour 57l meets this point
squarely and fairly, and disposes OF 1t.
WHAT CEsTUI QUE TRUST CAN DO
The speaker read from the affidavit Of Mr.. Havcmcyer
to show that nothing asserted in it except upon in
formation and belief Your Honor he continued, Ia not
informed that the facts going TO establish such be-
lief not informed that there facts In
other words. the affidavit does not meet single one Of
the requirements of that rule is pretended TO he
under IT, They sock ~ evadc it, and trust your Honor
will not counenance an attempt to accomplish their
section SS8 Of the Code is the only one which
provides that anything may be done & 70 enable tEa
fore, if they seek anything for that purpose, they
pursue the remedy under that section and under
sake argument that the statute Of 1864 is consttu-
tional, and that that section to be enorced then how
over the shoulders of a trustee only certain instances
First where trustee is in completely with % the person n
the trustee has neglected to bring an action
ST 1e after s facts G have To bis
And third where he refuses to bring an action having
cumstances within his knowledge upon which action
may be brought The case of Bate agt Gray Tin New
the authorities therefore are and stated them, that
the eest que trust cannot file bill in place OF he rns-
tee the trustee derect In his duty
The question here presented then i'll what respect thc
trustee in this case the Mayor Adermen n ana IN
duty and what evidence has your Honor OF that faeti
will refer to the only clause i'll the afhdavn on that
Mr.. Fullerton read from MT Havemeyers affidavit
Mayor and Aldermen and Board Of Supervisors had will
fully and eOusyey omitted and % to SSs Ssc ban @y
fraudulently paid to ngerso and CONTINUED Ine
whether any steps will be taken TO further this proceed
ing on ground that the Board Of supervisors and the
| omitted to take steps 10 recover back the money
said to he taken by lngersol Upon what would such
citizen but his judgment not to he substituted Tor the
Judgment Of the Court II he has ar eanf a
sufficient. Your Honor must determine that qucs,
tion-the must be laid before YOU ana you must
pass upon them udicaly and be forced TO the concu
sion that they have wifully neglected and omitted To
STnai that such thing is found and that Judicial action
is predicated upon IT, It must be based entirely npon the
that nfomation faa was. or upon what that belief
founded the world informed The trustee must be
cousi8ey Sf neglected to take any steps to perform
that duty and before this tribunal shall proclaim to the the
pervisOrs and Aldermen and Assistant Aldermen OF the
charge there ought to be some fact before the Court 10
warrant such conclusion The time mas not come
The tune has not come when we can compel men TO
into Court and testify in reference to ms private
upon the strength of what If found LII the COL
umns Of q lying and licentiOus newspaper
RUSHING WHERE o'GoRMAN FEARS 10 TREAD.
Mr. Havemeyer could have stated In what respect the
Aldermen and the Board Of Supervisors have been dere
ct and failed in their duty. He was not unaided by
counsel and had SO associated with him, all anxious to
punish individuals who had perpetrated fraud. He had
access to the Controllers books had the aid Of the
and Jealous Deputy Controller, and had everything at
had failed in their duty And II has found anything
to judicial action then why not state tf think
ciusion, that no such fact or circumstance ex;
have seized on it and placed it in that affidavit the
foundation OF the order instead OF mere mOr as raise
as place mentioned in polite society except by
cergynen stand here to protest against the POSITION
that man may be compelled to come into court to give
testimony III like this upon the information and
belief OF one who wthhods that information from your
Honor. The time has not arrived when such things can
be done. My learned friends, they are quntuple,
believe, who have laid aside as understand, all other
professional business in order TO hunt down men who
have perpetrated frauds upon the City Treasury and
hope they will meet with good success had the
books and to the files of the newspapers and
committee Of lesser numbers, and after investigation
from July last down to October what they
of My they are to tT cone into
nI @ s aeop and thew o1
want Of information Have they been derelict in
Ignorance, they turn. upon the corporation and
| say "you have not done your duty" and accuse
It of derelietion Of duty for mot doing every