The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-04-23

unrl we are ready. rms case must proceed by
Court to the District Attorney-we are ready to
hear any motion nom you. What Ii your motion
for the teoplef
assignment OF error on facts, on the ground that
the practice Is obsolete.
When the District Attorney had fairy com
menced his argument Old Mr.. Stokes drew MS char
TO the 'front.' near the counsel Tor his son, anu up
peared to listen eagerly to every word that leli
The motion as formally made by the District At
t0rney was to strike from the files an assignment
OF errors OF fact heretofore served by the plaintn
IN error and to vacate rule requiring the defend
ant in error to join in error.
Mr.. Phelps contended at great length That upon
an appeal on writ OF error no assignment OF error
jOinder OF error is necessary. Section % OF the
Revised Statutes provides that no assignment OF
errors or joinder In error shall be necessary upon
any writ OF error or certiOrari issued pursu-
ant to the foregoing provisions, but the Court
Judgment upon the record before Them Counsel
contended el0quently and at length that under the
wrs OF error and certorari which had been granted
to the plaintiff in error, and the bill OF exceptions
which had been allowed, every opportunity was
given TO him OF correcting Irregularities and amend
ing the Judgment OF the Court below.
The subject matter OF the assignment or error in
fact had been already presented In the Court OF
oyer and Terminer, and there disposed Of He
cted the Cancemi case and Others to show that
the assignment Oferror was abolished a useless,
cumbersome and embarrassing mode Of reviewing
decisions in criminal cases.
On the other hand, In the points OF the plaintiff in
error, IL Is stated bill or exceptions was settled
IN January by Judge BOardman, and upon that set
Element the plaintiff In error eDdeavored 10 retain
in his proposed bill OF exceptions allegations show
ing the absence OF the prisoner and the absence OF
the Judge during portion Of the trial; but they
were stricken out by Judge Boardman, on the
ground that they were not proper subject matter
for bill OF exceptions, but the truth OF the facts
was not controverted Upon the return 10 the writ
OF error being filed in the Clerks Office the plain
tin in error also moved In the Court OF oyer and
Terminer, inter aiid, to correct and amend the
Judgment record by inserting the above facts
therein and by attaching the aflidavits showing
such facts to the said record. which motion was
also denied.
on the = day OF March, 1873 the plaintiff in error
filed and served on the defendant in error an
signment Of errors in fact, setting forth the two
aforementioned facts, together with three GER
tain Irregularities committed by the Jury during
the trial. and also entered a rule In the Clerks
office requiring defendants In error to Join In error
within twenty days.
On the 9th OF April, 1873, the defendant In error
served the notice TO set the same aside as above.
In answer to the District Attorneys quotation
from section til rs 81 ne keysed +
only applies to general assignments OF errors Of
law and not of fact.
argument, said that when the plaintiff in error
was confronted by
AN IGNoMINIoUs DEATH UPON THE scArroLD
his counsel decided that three modes OF reviewing
the proceedings in the Court Of over and 1ermner
still existed. One was upon the bin OF exceptions
another TO bring up the outstanding branches OF
the records to see II they have been altered. dimn
ished or affected with irreguarity; the third by as
Segment OF error in fact either general or special.
The last named mode was found In every old law
book in the land, and had not been abolished. Mr..
Tremaln reviewed the various cases TO show that
it was an existing remedy UNAFFECTED by later legis-
laton.
After hearing Mr.. Tremain's argument the
Court conferred for q little time, and Judge
Ingraham said that decision would be given on the
motion at half past ten O'Clock tomorrow.
THE EFFECT.
The effect OF this motion OF Stokes counsel,
should 1t be allowed, will be to bring under the
consideration OF the General Term and the Court
of Appeals, II necessary, the irregularities above
alluded to in Judge Boardman's Court