New-York tribune., 1874-12-29

matter what the decision of Honors may be upon
this question we are going TO this battle, and we are
going to Hght 1t out, II can only persuade the
But there part Of gentlemans concession to
us which beg leave respectfully to discaim He says
here. We beg to him, your HonOrs. that we 90
not think that client needs any vindcation. ana
take place in this tribunal or IN any earthly ui
hunnl make difference in the ultimate fae .,
client. We look back upon long line OF peeedens
OF this Find, and from the days OF Athanaslns who IS
considered the patron saint OF orthodoxy ana VINO was
accused In precisely the same way, we come Gown
through oug list U: b. liian names-fOr this has Deen
favorite charge against the Clergy from the beginning
OF Christendom To tue present tne-we look through
that long and We lind many who were aCr1Eei;
Judge jury that ever convicted a ciergyinah
who stood up for his own mame' , ana Ho,na,, nam
being innocent VINO was accused in rela,
ton with him; We find 70 case or a cierSf Sfs
Innocence aud whose people stood by hlm and VINO ha
faith his God. whose name does not sne brghtr ~
tempted to convict him. Aud we have no fear we say
it with all respect, Of judges or jnries We ask no
shall be the decision judge jury We know In our
hearts, client knows and God knows his inno-
n yindira,on' We SEEK 20 90 tnat duty which every
man. ccrgymen as well others, should do when called
INTO court Of justice We are pursuing on Oei'' w
pursuing the line which we should adopt in any case
We do the right hand nor TO the leIt us
vindcation has come HIS vndlcatlon III tne ne"tts
his people VINO be snaken by any adverse
result But your Hon0rs. they are perfectly correct ~
saving that they are defeated here tnug dc,
creed IN advance and hey hy their manner ana
by their uLwiliinGnrss 10 meet the issue IL uhuti
pioon the gentleman correctly. he maze he prl'mary
Objection that too late. th'Ik nave
hrar from one OF the counsel now present SOM t5
about skukins behind technicaliiies l. AN 'cV'
rect will refer To the report.
Mr.. Murris-IOu are correct, sir.
Nj. shearlnau-Yes, Sir; We have heard something
OF skuking behind techuicaites. To say that MOTION
which is month before the Trial Is heVtFil
less too late because made before notice OF
trial Scryri sllppJS", uOl hhIlhlIlE
any tcChncay whatever. rr question II III" tiiil "i
motion may not be ccnniclliCy. but nave always u
dcrstUod tat il Was havealWavs understood that that
objection had be raised In the COu below ana may
he mistaken bat nave verbatim report OF tue .isu
mem before Honor JidSe MrCue. and nave = the
slightest recollection. after reading Tar several times;
any SUCH Objection as ms as naue DeoW' alu
Will pass that without WASTING more u &C. "iHf'
then, the purely legal questions involved III ir cast,
respectfully snDhll ti't thc decl-Io oi lnc % va
Dorus-ne dee sion prOper-navng settled the y llrs'
tion the power OF the Court tc grant M b q" par
tIrlars. the opinion OF hs IL lhor ia ;Ie pan" ]
IN ny nal0ly oI tIit COuF'' ahi "n'o'
Was Ouiy dIsscnted from. 50 lar az an t4pI's'iun W
doubt uignt raise dissent. by hS li)n0r IniSc 'NeJ'
goes further than the decision ana SHOWS pin'J;
necessary ue". that 1t = not merri Il! I1 irT,. , w
this CO1rt 10 grant the oFurr "HI'i MS iio''t
McCuc has grained, h thII, "a INC eA EcIso ga d , ~
iudica. discretion IBIS tOurt Is 0odni u grant SUCH "
order. -
Judge Ncllson-T do wi1h TO lnierTup' your arg'
Den', hut i'm not prepared 10 peile'" t"i' ss W."
the Court OF AppcAN 10 inlhc ANY such uc'' 'l"'''"'
Mr.. Sntarmau-Nrl. propose 10 "E-di tA.'' . J.. !
understand that Your Hunors VIII lot hecc''A'y oe
convinced Uy everything tIat -ay.
Judge Nailsor-I dun'i tnnk the Court OF Amp as can
ute 10 Wal, t.ctIdc .I Vu'uV'
Of first resur: have iHe power IN tHr eN'I'' ~ = ~
discretion to grant, III All "ciiJns for tori'. inrnil3G
tins peculiar ease, parcuidt' Bat II WOuii not rest
WITH that Curt, whatever tje rcisohtH- OF H.'i"n
might in giving OF the opinion, tu instruct us maj
,,on was before the Cort Tnat 1oG h. drpr.v4ns
OF tnc very d.scrcti which t"ey dttIlDute 70 as
Mr.. SArarDi!n-May II peasc Your Ii mos. q" not
clam that the Court OF Aplt.s coui, OF ma % ""l
or should myself uI'rrI@e 10 establish thL1 al
Court DUdnd 20 mIEo a prcr 'rr hiI' 81 pt'i,h
lars III any case Ia whlGA l. was aipeu or ~ 'hs
gguuud-thAt l; satisfy y0u' IiInJr INA, 'h!' Is d vs
utlreiy within the linz OF prcrcnts thar thi1 j. case
IN which, by the unu!n prW lee ~ colr;S from wien
we derive our system OF pa rtcc-tidi briIE - ''c
winch me CIugt 1f Appeals nis recosihL ii ar hihi
ing upon TINS C"q:.; 80 idr Us II ,l.CS,Ou W Ui
power concerned, claim that wohd thrn y '.0 III
precisely position IN when would II were
every case grlntIAg Or refusing "f PRAYER or IN
Injunction rests III tnc sound discretion OF the Court
and would not come lHtU Cuurt and pI"'um" IL n'
tna simply bee made appilr','un Tor an III
Douu grdut BIt sIOdd INSIST, rr~pec' ANY, |
ma,ie uu IA for the granting oi an inJnncli"n sn-
lar tIosc IN "hcn III JcIJas n"d hVe huA A.'td lurs
before ren granted da1 never re. Std III av rriJ! "d
cast, thai YOUR HJndr5 we're NOR lily b0nnd 20 grant
mat ~ Junction. Now tl, "i't cdlm IA tir h1!4-
my brief: The People agi. Fne y; T. Central Kiiroad
speaking question OF pare discretion, t't the dis
crrtIun OF the Court IL not mcr" ariiy uIie@ icd
Crcto Judicial G!Ncr fn' To hc r&cE'l,:i hGl
certain tOus, and dcIcndius rtoh cSa principles
and rules Ii ii pea'o t'c tont' 'Ahl w. a tnnca
stronger case than the ow eirc yu, tf tlls red
son, an extra ailo"i.cc ~ cOst' IAc dh-l'Sr
Of ne Code Mer' M ~ Wy r .'i'i' al t,t me- me
Court may, IA iS GiStIr."u' RF"I liI.h"6 li6
d"hrS am% a. vas N 'T regard to io words that lie Cort Of
Appcas u,ci Ills t.u-la-c; sad Ia! 1t - Aut AZ
JT;ry unrcc':lded ilrt-ti"I' 1u lli'e', :.' l"'
to be exercised upJu certain In me cd'c
w." n%,. " ~ h. ,rr.tinn OF me CoG?: - su,,iy s..s
lac oar MAJ IN al Or,rr nl Oi i tic".'r~.
Tlr word =" rt""., -HJH..., c-:' i,h pr
snnt"I OF .scrriIo nat fc oirr section of me
CuIe actually put- tLC words n Is ~, t't.I ")
srIi there where ..s cacr"tlaa OF t.lc Cour vas
\.
only 4 lcga! dscret. g be- r"i'I ~ ac" !h't
IN the ruler. refer atiu nc opnon ~ 'r Court
liry pagc l52. wner, senator Brtaih citing airy
Jl,cr MIR, ,I.I ppruI.;ini t..at INC J"u-
cIAl Discretion 'hc arbitrary "i ~ nc
1rigc always al Gircrt iun tn % c+cFHtu III
!,crrnA. the cudr-e pcs r4Ded Oy AN. In@At re-
fer your HoYors 10 many cases IN whIrh t1c N"r
may" wueu Used in reference 20 prIvac f-hls' ''
born held 10 mean n.-t hot " must" II sGcA
strict sense that tny Court Cav ANY discretion"
bu: must IL such ,senHc tldt. uhc'S inc o".' 80
may be anled, that thea 1t mn t DC srdn"d % 'o"rT
AN spc;,Iug nLtieGs oi HuD7tdnt". llSht lu n.
eIrakug matters .Ikr Op"niaS default or Al" ""lh-
an ucntmeu To pleading atl0uGh, even III f"istoa'
OF aIncnduris OF plcidiI-' tIc .hrrI Iei .' e.,
recently declcd that those Orier> are hppeaa. Dl,,
furthermore II were mere matter Oi aiWtITf
discretion, that would D. at once the cnd oi 'hs '?
ana we should be entitled Ia dismiss the appeal. "eu
not make any motion for the reason tnt we a. NOT
brnrve that Judge MrCdc or any jad-e 1ti purely
arbitrary discretion 70 grant or deny tnis motlol'
THE QUESTION OF PRECEDENT.
We believe 1t must be granted accordance
with the examples OF the precrdents Now then, o"K
ing at the opinion OF the Court OF Appeals we ma ths
long ue OF prccedent part of which were cited 10 yon
Honor on previou OCCASION but which going 10 the
Court of Appeas were more than dOuDiedwc mud that
All those precedrnts cited authOtits Dnd!hR ON
the court the question or power, ana SHOWING nat
ney are cited with approval tue matter oi discretion
do within the range OF those authorteS OF 90
we NOT As to that not prepared 10 trouble your
Hunors brief this occasion having nndcrstood
this question was not To be ralsed 70 any extent or
this argument. But, nevertheless, may re,et mt
your H0nOrs TO few cases in a long anu