The Washington critic., 1889-02-07
TILE Rinmr TO THY III
a Question of Jurisdiction Settled In
the Criminal Court.

n NNcstinn OF bufiNutfttOn Ncttlcu III
the Criminal Court.
In the Criminal Courtroom, where
Judge Montgomery has been holding II
sitting Of the Circuit Court, the case
of Avcrill against the Second National
Bank of this city was called up for
trial this morning. Mr.. Davis, who
represents the defendant, was asked
whether he was ready. He replied that
Mr.. w. f. Mattingly, who appears for
the other side, had some suggestions to
make which might postpone the hear.
ing, rs also the hearing of other cIses.
Judge Montgomery said that he
would hear Mr.. Muttingly, who pro-
cceded to say that, as DESTROYS rs he
was to give what little aid lie could to
the expedition of the business of the
Circuit Court, he had concluded, after
examining with some care the question
as to whether this court had iurisdic-
ton to try these cases, that the juris-
diction did not exist. lie did not
raise the point through any desire
simply to present question to this
court, hut from the best motives and
the best reasons. Judgments rendered
in these cases could be collaterally Mt.
tackled years after.
1t was to avoid any unfortunate re-
suits in this direction that he offered
motion that the Court do not proceed
in the trial Of the case. lie had con.
suited with number of his associates
AT the bar in whose Judgment he had
confidence, and they expressed this
opinion. The setting was held under
an act Of Congress of 1874, which gave
the Court authority to proceed in this
manner, but had been repealed by an
act of 1870, providing for the
constitution of second Circuit Court
when The business demanded it.
Mr.. Davis, who Appeared for the de-
PENDANT, presented his views to the
Court, coinciding in the main points
with those of Mr.. Mattingly.
Judge Montgomery said that counsel
on both sides agreeing, the motion in
the case would be granted as a matter
of coursc, although the Court was not
so certain as the counsel on both sides.
He felt clear that Judgment of this
sitting could not be attacked collater-
ally. Nobody would question tho
right of this court to hold a term over
across the hall. 1t would therefore
appear that the only question was rs to
the competence of the jury. The
eligibility of the jury could not be at
tackled colaterally; it could be done
by challenge. If the jury was un-
challenged he could not see why the
Judgment was not conclusive.
Mr.. Mattingly called attention to the
fact that the record in the case would
show that this Judge, sitting as justice
of the criminal term, was trying civil
cases with the criminal jury under the
authority of that law.
Judge Montgomery stated that his
opinion was necessarily somewhat
hnsty, MS he had not had the matter
brought to his attention before, but
this Court was or assumed to be sitting
in control Of a portion of the calendar
presided over by member OF the
Supreme Court.
The counsel in a number of cases
made similar motion. Mr.. Appleby,
who appeared for the plaintiff in the
case of Larrabee VS.. Simpson s. Guy,
suggested similar course in q case
which was to come in, but Mr.. Job
Barnard, who. with James +. Ell
wards, appeared for the plaintiff, said
that he agreed with the Court.
Mr.. .Appleby then challenged the
jury. on tho ground that it was sum-
moncd to try criminal causes.
The Court overruled the challenge,
and the trial proceeded.