The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-01-08

The Discretionary Powers Of a
Judge Defined.
Liability of Sleeping Car Companies for
Stolen Property.
Opening OF the Madison Street
Homicide Trial.

The examin alton or candidates for admission TO
the Bar will commence on the 10th inst, in the
Supreme Court General Term Room.
the report OF the Commissioners of Estimate
and Assessment for opening ls5th street was sub
mitted yesterday In supreme Court. Chambers, to
Judge Donohue, and a molten made for Its con-
nrmauon. No one opposed the motion and the re-
port was confirmed
The owl suit brought BY the Countess de Bots
de Blanca against Carl vogt to recover money
and securities alleged to have been stolen by Vogt
from her murdered husband was on yesterdays
calendar, In Part Of the supreme Court, Circuit,
being held by Judge Lawrence. Application was
mace to postpone the trial, on the ground that 1t
was necessary first TO get the returns from COM
mission sent to Belgium to obtain evidence In the
case. There was a lengthy argument between
counsel at the conclusion or which Judge Lawrence
took the papers, reservng nis decision.
The trial Of the case OF the Russian Baroness,
olga de Mauta Fraor, Vs. The New York Central
and hudson River Railroad, was resumed ycster-
Gay In the common law branch oil the United
states Circuit Court. No additional Facts were
etcited. The case viii probably be given to the
Jury to-day.
In the United States Circuit Court yesterday
the trial OF Inspector Harris charged with being
implicated In the smuggling OF 10000 cigars
through the Custom House, the evidence taken
In which has been fully reported, was resumed,
counsel occupying the day in summing up. The
case viii be gwen to the jury by Judge Benedict
this morning.
POWERS OF A JUDGE DEFINED.
MEANING or THE TERM DISCRETIONARY
POWER"
At the General Term OF Common Pleas, before
Judges Daily, Robinson and Larremore, argument
was had yesterday IN the case OF Daniel O'Connell
W.. Schamu NJ. Moschcowitz. 1t viii be remem-
bered that the appellant was sued in the Third
District Court, before Judge Fowler, and after
Issue joined he rendered 10 the Justice an ''Un.
dertaking on removing cause to the Common
Pleas" aud proposed '-order for such removal. /"
IN pursuance OF the statute governing such cases.
The plaintiff, awaiting himself OF the practice and
decisions, required the sureties on said undertak-
ing to justify. and their examination was accord
ingly taken. Plaintiffs attorney making no Oh
lection as to their sufficency the Judge approved
the suffciency OF one OF tue sureties bat did not
approve Of the other and refused to ap.
OF removal. To this the defendant took
an exception, refused to furnish another surety or
undertaking, ella ming that the sureties were SUI
ncient, lett the Court room and took no further
proceedings IN the action. Tho plain TIN obtain ed
Judgment BY default for the sum or s1s5 l6 dam.
ages and costa: From this Judgment the de-
George +. Lsngbein, counsel for appellant.
ATgued that If the UNDERTAKING offered was correct
In form and the sure les therein were su0lcien 1,
Judge Fowler should have signed toe order or re-
moval that he bad No jurisdiction TO render judg.
men, or TO take any further acuon In the case,
that he was iunctus oici! and that bis isdction
was arrested except to ADJOURN. Referring 70 the
case OF hogan vs.. Deyln Il DAILY, 1S4,, he insisted
further that the Justice was bound to accept and
approve any one or more Responsible suret ties. and
that II the sureres were good In law upon the face
OF their sworn examination the Justice could mol
from mere wilIulness, caprice or whim object OIL
dis&pprOve OF them. This doctrine, he
Claimed. Ii conceded TO Do law In the
case OF Adams w. Ives 70 New York Supreme Court
Reports. Hun.), In the opinion OF Judge Tacott
The Justice was to exercise Judicial dlscre tion-
legal discretion to be exercised In discerning
She course prescribed by law. When that Is dts
cernsd 1t rs the duty OF the courts 10 follow It.
Is TO be exercised not 10 give eject to the Will OF
the judge but 10 that OF the law. "Trip vs.. c. OK
26 Wend. las, l52) II must be q sound discre.
tion,'i as SAID Judge Brady in the case OF Hogan
Va. Devlln.
Thomas Henry Edsall. counsel for RESPONDENT
argued that the Justice had right to satisfy him.
se and that In this case the Justice had srated ne
WAS personally acquainted with one OF the sure
ties, wnOln ne would not accept.
The Court unanimously reversed the judgment,
the ChleI Justice stating that the sureties being
sufncient In law, as shown BY then sworn exam
nations, the Justice was bound JudcIally 10 ap
prove the undertaking and sign the order Of re-
moval. He ADDS iurther that judge should have
no private reason IL must be Judicial reason,
and not an arbitrary, whimsical or caPricious req