The New York herald., 1875-07-14


them upon personal knowledge; that the am
dsvlts OF GarveY. Davidson and Keyser are MADE
they are, are entltIed to no credit wnatever, and
that the afidaviss OF Baxter, Lemare, BulL Tirrel
ana MasteIton neither give. nor pretend 20 give,
ant. HIS nfth point was tnat the complaint aud
amdavlts, u they were all taken as evidence OF
sas2 s5s 50, and that THIS IS the a total amount
the eeienaants hands. ais remaining points
were that no cause OF action exists In favor
OF the present plaintins; that the Court
OF Appeals in It's decision IN tie d st
case, sustaining the demurrer have DECIDED
tnat the people cannot sustain such an action
that the act or the Legislature ooss not Improve
the plaintiffs positioni that supposing tine action
well founded IN ali respects. snea an amount OF
OF the State; thar without reference, however, 90
the constitutional question: the BAN uf allowed at
aud finally that the order OF arrest should be
vacated or the bail reduced to moderate sum.
TIE ARGUMENT OF MR. PEoKHAM.
Mr.. Pecknam made lengthy argument In reply.
The motion, he began, was made on the papers on
which the order was granted and on tne papers
IN SUIT OF the recipe ys. Tweed. impleaded with
lngersoll. The only afidayit was by the attorney
oi Tweed In the lngersoh suit, TO the enect mat
the costs therein had not been paid or rendered.
In THIS connection ne read an afldavlt showing
that the costs mad been rendered since the order
was granted 20 show cause. The motion, he IN
sisted, was consequently MADE for alleged Irregu-
larltles, except 50 far as II Is motion TO reduce
bail. so far as that branch OF the motion WAS con-
cerned, he enntended tnat n Judge or court has
any discretion IN liking the amount OF ball. ~ Is
an appeal IRON the discretion OF one Judge 10 an
other-the practice anomalous IN this state. There
worthy wcrs sons of notice.. IL the year 1871 1871
once holding robbers had for years been system
atlcally plunderng the local treasury, tnat they
had control OF the Legislature and fashioned laws
TO suit their purpose and tnat they hadned both
the prosecuting ana judicial onlces with their
tools or az least then friends II was I'm Impossible,
source on behalf OF the public was the Attorney
General Tweed was the leader OF this band Of
booty and had welded the ''llo rs snaren OF the
power. As the corrupt Judiciary was overthrown
and not NOT % s1SserSient 6snds several OF the mare
prominent OF these pubic plunderers ned, not
daring to face the prosecutions instituted against
them. This defendant alone, with bold
ness and enrontery the onsprinE OF a
long career OF successful crime and an
Of irand ana rascallty. to defeat jushce deter
mined TO remain and TO contest the effort TO mete
The result was notorious, tie civil action failed,
because, as the Court or Appeals has declared,
tae people had no cause iof action. To 1weed's
amazement the criminal processing succeeded,
bat its moral eject has been substantially
destroyed through his recent liberation. Several
OF the judges or the Court OF Appeals regret his
liberation, and declare that IL Will only be
change nom tina Penitenrary on BacKwers
Island 10 Ludlow Street Jail.
Tne defendant has now been arrested in this
action and he asks this Court to vacate the order
plcation Without any denial OF his quit,
without q word OF contradiction Of the allegations
OF the complaint, without having returned
single dollar OF the stolen money, and relying
solely on the Leading tecnncalities Ut astute tech
meal counsel. In no seBss dId such application
commend itseI to a court OF justice. Every hon
est impulse Is against him. IL would never De
granted unless TO deny IT would be found In con-
iiict with some stern, well settled and tn1exIble
rule Of law to which morality itself must Yield.
Alter these general preliminary remarks ne took
the case strictly IN It's legal bearings. HIS first
point was that the supposed rule tnat no one
should be second time arrested by the same
plaintln for the same cause OF action II II could be
proven would have no application. He in
sisted that this was not the same cause
as ia that thai case the Court Of xppeals heid abso, @
lutely and finally that the plalnJin had no cause
OF action. .Tne present acton was brought under
favor Of the Mayor, &c. OF New York 30 the people,
An analogous case was tae rlgnt OF the Attorney
General IN England TO sue for incorporation OF
publc Iunds by public oncers OF municipal corpo-
rations. The Ingersoll SUIT was discontinued
prior 10 the arrest In this case, and prior TO the
commencement or this action There could be.
he urged, no question at this DAY that Defend
olsc ntinuance oil the first, provided only that
second arrest does not appear TO DC yexatious.
eral 'gS cases. In Brown vp vs.. Davis list entity
Report. 161, x. b. motion that BAH bond
the same cause had peen brought and comprO
missed. But that does not authorize the setting
aside or the proceedings in an action Instituted
Tor tue same cause unless the second arrest ap-
pears to have been made purposely TO aggrieve
the defendant In the case OF Bates vs. Barry q
ana at Issue OF paintr discontinued on
payment OF costs, having discovered that he
should have brought covenant instead OF case.
He then comm encea second action ana again
arrested defendant A motion was then made to
discharge from this second arrest on compen
was held that there was no intention 10 oppress.
Having elaborated this point At great length, he
urged his second point that twhatever lrregu-
larty may exist IN the manner OF verl1cati0n II Is
not pointed out in she notice OF motion required
by the Code and that there Is no rreRularty In the
yerincatIon. His third point was that the cause
OF action Is clear II The people have q rght OF
ton, which ne insisted they clearly have under
the law OF Marcn IL 1878; and, moreover, that In
pursuance to the opinion OF Justice Learned In
TINS motion the Court will not inquire INTO ques-
tion OF TINS kind. He raised as fourth point shat
arrest and attachment may coexI5t, and taar es-
pecialy is tdat so where, as Ia this case notnlag
next point was that the constitu tlonal provision
applies only 20 criminal cases, and tnat the rule
OF pail in civil acton was Dotk before aud since the
adoption OF the constitution tie amount oi plain
tll's demand.
HIS concluding point, and one urged al greater
length than any OF the previous ones. was t1at tue
bail Is not excessive, but, on the contrary,
tnat 1t is really too small. he claimed thit
there was no andavit that defendant was
unable 60 give tne bail demanded; that
1t was not denied that defendant intends 10 fee
the Jurisdiction OF the court; that tue Inevitable
in erence Is taat he wants tae bail reduced In
order 70 give and forfeit II and 1ee the Jurs1lc-
a Judgment FOR S7 900 90. bS Inc forIelture or I
snch small sum as ne can persuade the Court TO |
demand OF him, ana tnat the ordinary rule at
BAH OF course and without any iudge's order, IN
such sum as the plaintiff snouid Inoorse on the |
writ T0is practice led TO abuses and the PLAIN
tn was required TO make and file an aridavit OF |
oebt and was required 10 indorse the sum sworn |
70 on the writ ana ior that amount the defendant
was al ~ays ned 10 bail.
In actions on penal bonds a defendant could be /
held 10 oai not for the penalty, but enly for tue
sum secured, except In case Of breach OF promise |
10 marry, where tue penalty Is regarded assstated |
damages, when he may be held for 1t. In certain |
cases OF tort, he continued, where there was ne \
definite rule OF damages, assault aud battery, I
SANDER, DC, defendant could only be arrested |
on proper order, because IL would be unreason- /
aDle tnat defendant saould be arrested for what !
Damages the piaintin fancles he has sustained. |
Alter the statute the regular practice was for /
palntlu to indorse the sum sworn 10 10 the aGl- \
9aViL on tae WRIT aud Tor that gun TIE sheriff |
heid -fendant 10 ball. This Justification OF ban /
hau 10 oe IN double sworn TO. IAe same prac- !
tiee was provided Tor IN the Revised statutes \
Ol looJ. IL was thus seen that the
amouht Ior whlch the defendant Is held 20 ba1l is
and always has been the amount for which plain |
tu bhOWeu a cause OF acton. PlanLlfi. there |