The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1874-05-30
THE TWEED BILL OF EXCEPTIONS.

The Apple n ton for Mandamus
Against Judge Davts-Denial or the
Application and Reasons for the
Denial.
Among the decisions rendered yesterday in the
Supreme Court, General TermJudges Davis,
Brady and Daniels being on the Bench-was one
upon the application for mandamus against Chief
Justice DAVIS. directing him to settle the Tweed
bin of exceptions. In the argument OF the case
Judge DAVIS OF course, did not SIT; but the same
was heard by Judges Brady and Daniels. The two
latter concurred In their decision denying the ap-
plication, Judge Brady writing the opinion set
ting forth the grounds OF the decision. The fol-
lowing is the opinion In FULL
OPINION OF JUDGE BRADY.
The rule established by the cases upon applica-
lions kindred TO this is that mandanus Will be
ordered, commanding judge TO sign Dill OF ex-
ceptions, but NOS to settle 1t IN particular
manner, where there is dispute as to the Incl.
dents OF the trial. The Justice VINO presided must
say whether or not an exception was taken, and
his return is controlling at least until further pro-
suggested remedy is by action. People vs.. Judges
OF Washington. Gaines, 5l1; People VS.. Judges OF
Westminster, John Cases, lis; Fists VS.. Weatner.
wax John Cases. 2l5i Skies vs. Ransom. John
Rep, 279; People vs. Sessions Walne Company. Is
How, 1893; Tedd's 903; Delavan vs. Boardman,
Wenn, 1921 But whether such remedy, in TACT,
exists-quere. tSee Weaver vs. Devendorf 5
Dance, 120.( In England, according to Tedd supra,
ii the alternative will not contain the surmise
OF an exception taken and overruled, the COM
mand is to sign the BILL QOd 81 fd est III IT be sol
but ii the Judge returns 1ttod non TIA est ut Is not
SOL an action lies at the instance OF the aggrleved
party. II he establish the fasity OF the return he
RECEIVERS damages, and the peremptory mandamus
goes forth because the jury have declared that the
exception was taken. In this State III one case IL
was SAID that referee would be compelled by
mandamus TO settle the case and settle 1t cor
rectly (The People vs.. Baker 49, Barbour, 1861 but
the writ was not issued OWING TO some inlormaty
in the proceedings. The decision was made at
special term and is predicated Of the cases In
Games, John and Wend-, supra; but an
examination OF these cases shows that the
proposition asserted is not warranted by
them and the case stands alone. / have not found
any case in which it has been declared that Z
mandamus could be issued against Judge. com.
manding mm to settle bill OF exceptions in a
was a dispute. There were no authorities TO that
a dispute as TO the correctness OF the bill, as
passed upon by the Presiding Judge, in reference
TO EXCEPTIONS and he cert1hes that It Is correct.
Although having directed 1t TO be engrossed, It
not yet been presented for his signature. There
seems 10 be q concession that an exception was
taken TO the exclusion OF the Juror Hayes, upon
challenge to the favor; but the Presiding Justice
c9rtifies that he was excluded for mental incom-
petence and IL was so understood. Upon q Careful
examination, not only OF the application, / have
arrived at the conclusion, tor the reasons assigned
and those presented by Judges Daniels ana West
brook, that the mandamus asked for should not be
be granted.