The New York herald., 1875-11-17
7WEED'S STRUGGLE.
Dismissal of the Appeals by the
Court Of Appeals.
DISCRETIONARY POWERS OF THE LOWER COURT.
The Act Of 1875, Authorizing Suits in the
Name OF the People OF New
York, Constitutional.
Albany. Nov. l6, 1878

decided The People or the state ol New ork,
respondents, vs.. william NJ Tweed, impeaded, &c,
appellant; David Dudley Field for appellant; Wheeler
H. Pcckham for respondents; Church, Chief Justice.
The questions presented on this appeal are:-
First-whethcr the defendant can be held TO bail n
second action commenced for the cause OF pre-
vious action discontinued The defendant invokcs tho
MAXIM "Nem0 dcJet bis pezdris pro una ct eaden.
eausa" g Moore 607) Assuming that this is for the
cause OF action as the previous action, Il is
always a question OF fact depending upon crcum-
stances whether tho second action is vcxatious Whom
such Is the fact the general rule that the defendant
shall not be again arrested, otherwise he may bo The
exemption is not matter OF legal right, but is to be
determined by the circumstances Chtty rcp 1o1-273;
X. b. Wilson, 3s1; . Stra, l2-l6 X. g., stra,
439; IA j. r., 346; sTanct 24). The first action was
discontinued upon the final decision OF this Court
against the right bring in the of the people
Of the State. special act OF the Legislature sub
equently obtained authorizing 1t, and this action
commenced in pursuance OF such act. The good faith
OF the former prosecution Is not questioned and the
circumstances repc the idea Of vcxation 1t is not re-
.civablc in this Court.
econd--The second point is that the first action was
not discontinued when the arrest was made and this is
affirmed upon the ground that the costs of the former
action had not been paid The action discontinued
by order of the Special Term and tho plaintiffs
ordered to pay the costs which offered TO be done
behalf OF the plaintiffs adjusted. We
think the order or tiscontinuancc was valid and
effected from the time it was served, and the plaintiffs
would not be in fault until the defendant procured
the costs to be adjusted and demanded,
which was never done. The question TO the remedy
of the party would have been presented to the Court
below is question of practice for that Court TO deter
mine.
Thrd-The point urged is that the order to hold
to bail should be vacated because the plaintiffs also
procured an attachment II docs not appcar
hy xIrtup
Of the attachment Besides, this Court has held
that order OF arrest and attachment may be had
Court 10 determine when both remedies may he re-
sorted TO. $50 \. T., 456l Being discretionary it is
not renewable here
Fourth-lt is also urged that the amount OF bail is
excessive This is clearly question of discretion with
The Court below and so not appeaabe There IS is no
rule OF law that party shall not be held to bail in the
sum OF IS, ,000, 000 especially where the
amount sought to be recovered is double that sum,
Fyh-The last question presented Is that the act OF
1875 authorizing this action is unconstitutional upon
the ground that the Legislature cannot inter
'cre and authorize the Attorney General to
prosecute for money belonging to the city or
county OF New York. We agree with the
counsel for the plaintiffs that this is question which
should bo litgaed the trial Of the action and
determined upon special motion, for obvious
urged by him. 1t is -aot improper, however, to say
that in the former action this Court while holding that
the action could not then be prosecuted in the of
the people of tho State ntated that the Legislature
no naa o SS
Lat purpose have examined tho brief OF
The learnM counsel and the opinion OF
Judge Cooley cited by him in Is Mich, 22S containing
able discussion OF the relations existing between the
State government of Michigan and municipalities
within its jurisdiction and the right of the former
control the local OF the latter and they have
failed convince that the Legislature OF this State
does not possess full power except as restricted in the
constitution to control by direct legislation the local
affairs OF public nature OF any OF the civil divisions of
the State This general proposition was affirmed BY
this Court in the People Flagg, i6 N. " 401. 1t
Is however, unnecessary to elaborate the question
definitely adudicatc it, as IL more properly belongs to
the trial of the action
The appeal must be dismissed
THE BILL OF NEUTRALITY-SUSPICIOUS.
The People, respondents; vs. William NJ Tweed, i'm
pleaded &c, appclant-D D. Field, for appellant;
W. II. Pcckham for respondents. Miller Justice.
The questions arising upon this appeal purely
legal and must be disposed of according legal
rules As to that portion Of the order in relation
bill of particulars II IS sufficient to say that il
matter purely discretionary, recently held by
this court in the case OF Titon VS. Bcechcr
No question arises as TO the burden OF
proof, which presents an exception which takes
the out OF this general rule. The refusal
OF the Court to extend the time TO demur upon the de-
csions of the appeal from the order OF the Special
Term was, also, matter oi discretion with the
Of which this Court should not interfere. The
defendant could have demurred to the complaint in
the first instance had he chosen to do So and thus
have presented the question as to whether the city
was proper party as well as such others as could
properly arse IN that form AS he sought
by motion to have the pleading made
specific, he has no just ground for complaint that
the Court, in view Of all the facts compelled him to
Nor does the stipulation of the plaintiffs
torncy any way affect tho question il was super
cded by the order OF the Special Term which gave the
defendant time to answer or dcmur &c, until twenty
days alter the service Of the amended complaint When
hat order was reversed appeal the Court had full
powor 10 direct what terms should be imposed upon
The defendant The complaint does not contain separ
ate charge for neglect and another Tor conspiracy
II purports to give history Of the acts connected with
ration that the defendant and his associates we're
justly churgeabc with negligence well fraud in
the performance Of their official duty This clearly is
not separate and distinct clam for neglect of duty
q statement
fact auxiliary to and aid OF the general charge OF
conspiracy BY means Of which the money
OF tho alleged conspiracy and appropriately
inserted IN presenting ITS real character
against the defendant The question to compelling
an election, therefore, between the charges OF
spracy and the charge OF neglect does arise Even
did tho right TO compel an election would also bca
matter OF discretion Of the Court which the appica-
uon was addressed. The learned counsel Tor tho
defendant insists that the different OF fraud referred
10 IN the complaint and specifically stated the sohed
ules should be stated separately, in conformity with
section l67 OF the Code In this think he is entirely
In error. This position is based upon the ground
that each OF the items constitutes separate distinct
and independent transaction and therefore each one OF
them forms OF itself ono for action am at n
loss TO how such be the case in an action like
the present any than in a case where tho action
is brought upon account composed Of different
articles furnished at different times and OF yarous
amounts The peadcr here alleges that by virtue OF an
act OF the Legislature 1t enacted that all liabilities
against the county OF New York should be audited
by certain officers, who were named and be paid 10 tho
OF said officers That with the intent TO cheat and de-
fraud the defendant Tweed and one Watson did unaw-
fully and frauduently combine, conspire and agree
gethcr procure false and pretended claims to bc
up, allowed and paid formal compliance with tho
same act That these pretended claims, falsely alleged
and purporting TO be such Liabilities of the county,
amounting TO over S6,0OO,OGO, specified in
the schedule annexed, which was made part OF
the complaint were IN apparent formal compliance
with the certified TO- have been audited
and allowed when they not examined
audited, and only meeting OF nc Board Of Audi
lnlI lfcau etnffn lin
btics against The county presented or consid-
cred, any proceeding had thcrcat except that a
paper which is set forth, was subscribed by said Audi
tors; that said Watson or his assistants acted upon
said pretended accounts Of claims in the schedule and
attached certificates TO the same, and that they were
all false, fictitious and fraudulent and did not repre-.
sent any Liabilities against the county which were di-
rcctcd to DO auucd, provided for or paid within the
meaning Of tho act
Some other allegations arc made, not material TO DO
stated As the complaint alleges that all the items set
forth in the schedule fraudulent and certified ~
IL nnlnIll