The New York herald., 1874-04-24
TwEED's FoRLoRN HOPE.

AKR&AOS&nO. =
mus Against Judge Davis to Compel
Him to Settle, Sign and Seal the Same
Argument In the Case Before tho 6u-
preme Court, General Term.
while the internecine strife continues among the
Commissioners OF Charities and Correction as to
degree OF laxity or severity OF regime to be ex-
ercised toward the detnroned and ostracised
monarch OF the New York ssring,n and while they
are rancorously discussing whether he shall be
.cribbed, colned and connnedn In q convtct's
cell or be allowed the paiatial freedom OF deputy
wsrden's room, whether he snall wear this or that
suit, eat this that food, do this or that work,
the great Boss" true to his own instincts,
is striving his best to cut the gordian Knot
by Kidding these jealousy acrimonious public on
cials OF his presence altogether 1t s by steal
ing silently awayn he seeks 70 do this. or BY q
midnight railroad excursion, but by boldly and
openly invoking the courts in his behalf 1t Is
getting to be rather an OLD and somewhat monoto-
nous tight, but still his counsel Keep renewing it
at occasional intervals and with q vigor ana de-
termined energy worthy, as some might say, OF .
better cause. The last move in the legal pro-
gramme Is an application Ior peremptory man.
damus against Judge Noah Davis, compelling MIN
to settle. slgn and seal the bill Of exceptions 1t il
rather OF novel proceeding this mandamuslng
Q Judge Of the Supreme court; but Ar::
as afTecting the Interest Of their client demand
that such course should be taken The appllca-
ton was made 70 the supreme Court General
judges hearing the argument were Judge Brady,
who presided, and Judges Daniels and westbrook.
terest IN the fallen fortunes OF Tweed was shown
In the crowd in attendance. Among the specta-
ss and %0sr sssp Ss %
Graham u .. Bartlett Eilsha Root AND ana
the Celebrated esaase Fusrson
for some unexplained reason, being absent. On
the part Of the people e there % appeared the same
and District Attorney Phelps Discussing some pre-
hminary questions, reading the papers Of the NOV
ing partes and argumen. Of the merits Of the case
occupied nearly all day. The gist Of the whole Is
embodied in the subjoined epitOmized report.
GROUNDS OF THE APPLICATION.
There are two grounds OF the application for the
writ OF peremptory mandamus. me trst ground
relates to the exclusion OF Juror owen c. Owens,
Was challenged for principal cause oy the aeience
which the Court decided not true, and then chal-
e and havna
cause was overruled, but the juror was excluded
tied the bnl Of exceptions, the only challenge ap-
pearing to have been inte.posed Is that by the
prosecution 70 the favor. In the case OF James W.
Hay the principal challenge was 0verruled as In
terposed by each slde but Judge Davis excluded
the juror on challenge to the favor by the prosecu-
the whole out OF the Dill OF exceptions. The Sec
ond ground OF application relates to exceptions to
the charge. These excepnons have been dis.
allowed, as alleged, in one instance partially, by
cutting out matter necessary to explain and pre-
and in the other instances totally IN the settle
ment and resettlement OF the Dill OF exceptions.
ARGUMENT FOR THE MANDAMUs.
After Mr.. Phelps had raised various preliminary
objections, including one against the Jurisdiction
OF the Court, but winch the Court decided to be
m aYnDro n n n m nnfin
after the reading Of the moving papers and SUBJ
mission OF certificate OF Judge Davis, setting
forth SIMPLY tnat some OF the exceptions whtcn
counsel for MI. Tweed GAINED ought TO be inserted
In the bill OF exceptions were not according to his
recollection, taken on the trial and that others
&C length the basis OF the present application.
claimed that it ought to be shown to the
higher courts how the court OF trial can
OBJECT to ann. and incompesent wnen the prosecu
ton signify . dislike TO him, the facts and the
course OF the Court as to other jurors hardly war
ranting such decision. He coOtended Tor the right
OF the appellate courts to say what shall come be-
fore thein-wnat shall be the scope, what the value
view. He protested against any principle that
would smother point by holding that the juris-
diction OF the appellate courts should be limited
by what judge, IN settling q bill OF exceptions,
should be Wiling to allow 10 come before them.
Coming now to the second ground OF the applica-
ton, which relates 20 the exctslon OF exceptions
to the cnarge OF the Court inserted in the body OF
the charge and which In substance charges bad
faith IN Judge Davis, he insisted tnat it was under
su ystantially the requests TO charge" submitted
by him the defence should have an exception. he
charged that this understanding was violated by
Judge Davis refusing, after the jury had retired to
admit such exceptions, and that his refusal to ad-
without regard to when it occurred, sussian fiaiiy
deprives the reviewing court OF Its power OF re-
view. He submits further that the only question
In the body OF the charge, which they
claim were improperly stricken OUT, were
the sussc matter TO- Of Vaous 4
quests. II they were, then. he insisted, they are
directly within their rights, as they were reserved
their requests, on such subject matters. he con-
tended are plainly covered by their exceptions.
require exceptions to be presented shows, he con-
tended further. that the defence must lose the
beneft OF their exceptions 10 the charge IN this
unless they are set out under the par.
ticular sentences or portions OF the charge which
are claimed TO be the subject OF exception. He
spoke, in conclusion IN reference to the excep-
tions themselves which are inser ted In the charge
THE ARGUMENT IN OPPOSITION.
Mr. Peckham replied at considerable length, In
sstng that SO far as the exceptions to the charge
were concerned Judge DAVIS had really given what
did occur in the bill OF exceptions which ne had
technical ground that this writ could not ex.
cept where Judge had actually signed and sealed
an erroneous Dill OF exceptions or mad refused TO
sign any such bill. Bat, putting aside the mere
tecnnicalttes, he claimed that the exclusion OF
what occurred as to the empanelnng OF jurors. 80
far as 1t was tact, was right.
Mr.. Phelps followed. arguing that this was not
the tribunal decide this matter, since they were
asked to decide on one hand the fact and on the
other the meaning OF the fact, on both OF which
the Court below had the only real knowledge.
WINDING UP PROCEEDINGs
Subsequent speeches were made by Mr.. Graham
and Mr.. Peckham, but in the main going over the
same lines OF argument as given above. The dry
ness OF the technical dsputation was somewhat re-
lieved BY occasional indngences In slight per-
sonalittes but not OF q character by any means
giving promise OF ''cofree and pistols for two" Mr..
Graham INDUCED IN proiuse apologies for his
warmth, though. ior that matter, his warmth was
hardly noticeable and 1t was din1cult to tell why
he so profusely apoogized. Neither Mr.. Peckham
nor Mr.. Phelps were In an apO0giZing mood The
Court took the papers, and after the long and dry
argument. seemed glad to get them; and thus
ended the last great move OF Twced's cohorts on
the enemy'a works.
BUSINESS IN THE OTHER COURTS.