Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1896-12-17
:. Sworn to and subscribed before me
the day and year aforesaid,
flames A. Smith.


'tNotary Public. "
AT the conclusion of the reading OF
tho affidavit Mr. Hayes said he did not
admit that the writ was supersedeas,
whereupon Mr.. Wolcott stated that he
ana bis colleagues thought il was, but
we're perfectly willing to submit to the
decision Of the court.
Chief Justice Lore informed Mr..
Hayes that the court was ready to
listen to argument, but it seemed to
the court that the matter needed no
argument
Judge Grubb read the following
opinion.
In the case of Knight & Kennedy
vs.. Ferris, little election case in
Wilmington brought before the court
OF errors and appeals by me on writ of
error, object Of bringing the writ Of
error was to prevent Ferris from acting
as inspector at the general election of
the year 1880 and to enable johnson,
to whom the certificate which WAS in
controversy, had been given. to hold
the general election. | brought tho
writ of error, believing that it would
be superHedeus of the peremptory writ
which had been issued by Chief Justice
ComegyH and Judges Houston and
Wales in Sussex county.
IF it had not operated as a super
sedas the object OF taking the writ of
error would have failed and Ferris
would have beid the general election.
| argued that case alone in the court
of errors and appeals. Two questions
arose. First, whether writ of error
would lie in the case when not returned
until after the Office had expired
second, whether it operated as super
sedeas in case the writ of error would
lie. | argued both questions ut great
length. The court at the conclusion of
my preliminary argument adjourned
over night and the next morning, hav-
ing considered it, they decided it. II
is true that they did not say what they
had decided, but they directed me
to 20 in my main argument. The
court in that case consisted of Chan
chellor Salisbury, Judges Comegys and
Wooten.
"Cbief Justice Comegys had sat be-
low. rendered the opinion awarding the
peremptory writ. / have talked with
the members of that court and it was
their understanding that it was
supersedeas know that Mr.. Brad
ford and Mr. Higgins, who argued the
question against me, never raised such
a question. / did, however, prepare it
in my argument They never doubted
it 80 far as could understand from
anything they said, certainly they
never attempted to answer that part of
my argument. Chief Justice Comegys,
who was great sticaler for the dignity
OF his own court and the rights of that
court, as we all know, laid great stress
upon matters Of that kind. and he had
great feeling and expressed it to me,
for ! entered the court of errors that
morning to argue that against bearing
that case or deciding it in the court of
errors. But the court unanimously, in
cluding the Chief Justice, il not OK.
pressly and impliedly recognized the
contention that made, both as to the
writ OF error lying and as to that being
a supersedeas. and if Chief Justice
Comegys had imagined that it was not
supersedeas, knowing the feeling he
had as TO the dignity of his own court
and respect due IL, rs we do, the per-
sons against whom the writ was issued
would have heard from him in the
superior court. ] myself have no doubt
upon this point have Just been
reading over the argument. or at least,
/ did last night, the very full brief or
rather argument, which / wrote in full
and l am convinced that "a writ OF
error is as much 'supersedeas in a
mandamuR case as in any other case.
'In the case of Saunders against
Union Church the court exploded the
theory that a writ of error in man
damus was different from writ OF
error in any other case. There the
court expressly decided that although
a writ of error would not lie at com
mon law nor be supersedcas in
mandamus case, yet in that Saunders
case tho court Of eirors and appeals
held that tine writ of error does not lie
by force of the common law in this
State, hut by the express language of
the Constitution OF our State. And so
a writ of error by the express language
of section 10, article 6, whore bond is
given, il becomes stay in the lam
guage of the Constitution, and because
writ of error was not 5upersedeas
at common law is nu reason why it
should not he by force of the Constitu-
tion. Ii q writ of error would not lie
at common iawin a nandamus case it
does in a mandamus casa in our State
by the force Of the Constitution. So
that the principal you suggest has not
been held in this State and | am opn-
fident from the conversation with the
Judges who sat in error in the Ferris
case, that they were of the opinion that
writ OF error was "a supersedeas and
also from tho subsequent omission of
Chief Justice Comegys is TO have pro
ceedings taken in his court against the
inspector and judges frr contempt in
not .obeying the writ of mandamus
when il was issued, we may fairly
infer knowing tho character of tho
Chief Justice. that in his opinion il
was supersedoas. -
Mr.. Wolcott cited a case of the same
nature which had bcen decided by
Chancellor Ridgely, and which proved
conclusively the correctness of his
contention.
Chief Justice Lore again informed
Mr.. Hayes that the Court was ready
to hear any argument, but instructed
him as to how the Court felt about the
matter; that the writ of error operated
as supersedeas whereupon Mr.. Hayes
declined to 90 into argument, stating
that if the law was such as had been
interpreted then thore was no use to
argue.
Judge Cullen explained that when the
writ OF error as issued nothing. further
could be done by the superior court
until the matter had been decided by
the court of errors and appeals. He
stated, however, that should the court
- a.ua,, un,J upuauIa tlanila tbat tho