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testimony, the charge, and the opinion of the Court, were the parts which it seemed most important to preserve entire. In preparing the different arguments, which are given at length, the reporter has received much aid from several of the learned counsel; and he would take this opportunity of tendering to them his grateful acknowledgments for the kindness with which they have afforded him every assistance in their power. This part of the work will be found to contain a full and correct exhibition of the argument, somewhat condensed. The phraseology of each speaker has been in a great measure preserved: the recollection of a mere listener would probably detect few verbal departures from the original. Still it is proper to say, what has already been intimated—that a verbatim report was not intended; and that the precise language of the counsel is not always given. The report is, in each case, from two-thirds to three-fourths in length, of the argument as actually delivered. It was originally proposed to give merely a synopsis of the arguments on the motion for a new trial. To have reported them also at length would have carried the work far beyond all reasonable limits; and, besides, each one of the counsel who spoke on both occasions, necessarily went over nearly the same ground in each case. It also seemed advisable to furnish the reader with a synopsis of the argument, after the same had been exhibited at length. Various reasons, however, induced a change of plan so far as regarded Mr. Sergeant’s speech. A report of this was taken for the purpose of separate publication; but after it was taken, several considerations appeared to justify its being incorporated with the present work. Mr. Sergeant had not addressed the jury at all, and some of the positions which he took were entirely new. Accordingly his argumentin full has been inserted. One speech, therefore, of each of the counsel, with the exception of Messrs. Randall and Hubbell, whose openings, only, are so given, is reported at length; and of the other speeches a mere synopsis is exhibited. The length of each opening and argument was about as follows:
JMr. Hubbell's argument 14 “
Mr. Sergeant's 104 “
Thus much in explanation of the character of the work. We propose now to give a brief account of the proceedings in the case preliminary to the trial at Nisi Prius.
Immediately after the events of the 7th of May, 1838, which resulted in the organization of two distinct Assemblies, the Rev. Mr. Squier, Judge Brown, and the Rev. Mr. Hay commenced the suits, which were given in evidence from the docket, on the trial. Post, p. 201. They were prosecuted no farther than the service of the summonses, and the entry of appearances for the defendants. On the 31st of May, while the Supreme Court for the Middle District of Pennsylvania, was sitting at Harrisburg, Chief Justice Gibson, with the concurrence of the whole court, allowed on special cause shown, the writ of quo warranto, which commenced proceedings in the case here reported, and the writ was issued on the 2d of June. On the 30th (the last Monday) of July, the case was brought before Judge Kennedy on a motion for a rule to show cause why the writ should not be set aside. The following report of the argument and decision then made is copied from the United States Gazette. “Mr. Kane (with whom were Chauncey and Bradford) moved the Court for a rule to show cause, why the writ in this case, should not be set aside, as having been obtained improvidently, inasmuch, 1st. As it is made returnable in vacation: 2d. As the suggestion filed is insufficient. And for an order that the rules entered by the relators (rules to plead) be in the mean time suspended. “Mr. Kane proceeded to examine the different Acts of Assembly, and the authorities on his first ground; and argued that the suggestion did not state that the relators were elected in the place of the defendants. “Mr. Meredith, on the part of the Relators, replied to Mr. Kane, showing that the writ in this case had been granted by Chief Justice Gibson, while sitting at Harrisburgh, with the approbation of the whole court—that a writ of Quo Warranto had issued in the same form in the case of the Ninth Presbyterian Church—that the law and the practice under it sanctioned this mode of proceeding—that even if it had been irregular, objection was waved by the appearance of the defendants, and could not now avail them. On the second ground Mr. Meredith replied, that the suggestion was in the usual form—that the title of the relators was stated only to show their interest in the subject-matter, and that though the fact were otherwise, it might be assumed for the purposes of this argument, that the relators were not elected in the place of the defendants. “Mr. Randall (on the same side) commenced by stating that they had no right to inquire into the motives of those who made this motion, but its practical effect was delay: if successful it would only postpone the issuing of the writ till next December. He had indulged the hope that both parties would unite in a prompt and speedy termination of the unhappy controversy. All such expectation he now abandoned. “Mr. Randall was then proceeding to cite authorities, when he was stopped by the court, who directed the other side to proceed. “Mr. Bradford then addressed the court on all the grounds, and to the suggestion of delay, replied, that the defendants were ready to meet the case, but would insist on its being conducted in a legal manner; if the proceedings were irregular, they ought not to wave any advantage it might afford them; that there was great justice in the science of special pleading, and if they could, they would in this case invoke its aid. “The case was continued until a late hour in the day, when the court refused the motion on all the grounds taken by the defendants.
“Mr. Kane then stated that the rule to plead would expire on the next day, (the 31st July) and successively asked the court to enlarge the rule till the 2d Monday in December, and the 1st Monday in September neart, both of which motions were also refused by the court, in the order in which they were made.”
The counsel for the defendants then filed pleas; and issue was joined between the parties on the 7th of November. The case was now put by the counsel for the relators, at the head of the trial list, for the second period of the July term of Nisi Prius for 1838, as a commonwealth cause, and therefore entitled to priority. But Judge Sergeant, who sat during that period, which commenced on Monday, November 26th, decided that it was not such a cause as could claim precedence, reading in support of his opinion Rule thirty-ninth of the Supreme Court. “If the Commonwealth is not interested in the event of a suit, such cause shall not be entitled to a priority in the trial to other actions, although the name of the Commonwealth may be used as a party thereto.”
On Saturday, December 29th, 1838, on motion of Josiah Randall, Esquire, the Court fixed the first day of the second period of the ensuing Nisi Prius, for the trial of the case by a special jury. Monday, March 4th, 1839, was the day so appointed.