Groshon v. Lyon.

suits were for the same matter. If the referee should report that both are for the same matter, that ends the second suit, but if he should report that they are not, the plea is ipso facto overruled and the suit proceeds upon the other issues.

Such was the practice in the old Court of Chancery and is altogether the most convenient one to adopt in suits under the Code. The plea of another suit pending is to be determined by the record, and it is altogether more convenient that that defense should be disposed of and be got out of the way, before the parties are put to the expense of going down to trial on the merits.

Under the Code, the parties are allowed so far to plead double, that I think it very probable they may form at the same time issues of fact on the merits and an issue of another suit pending. If they may, it would be very mischievous and inconvenient to let both issues be carried down to trial at the same time and the whole merits be gone into, when the suit may be finally terminated on the plea of lis pendens.

The motion to set aside the report must be denied with

costs.

[NOTE-This case was affirmed at General Term. See 16 Barb. 461.]

Burning of the Henry Clay.

SUPREME COURT-AT CHAMBERS.

SEPTEMBER, 1852.

Before EDMONDS, Justice.

THE PEOPLE ex rel. DENNIS MCMAHON, JR., on behalf of JOHN F. TALLMAN, and others, v. THE SHERIFF OF WESTCHESTER COUNTY.

The intent to do bodily harm to some one out of a number of persons is necessary, under the second subdivision of section five of 2 Revised Statutes, p. 657, to constitute the crime of murder, even where the homicide is effected by an act imminently dangerous to others, evincing a depraved mind, regardless of human life.

Dubitatur whether there should not also be an intent to kill, though not aimed at any particular person. (People v. Austin, Ante, page 54, referred to and not dissented from.)

Deaths caused by the burning of a steamboat, which results from the making of excessive fires for the purpose of creating excessive steam, in order to out-race another steamboat, declared not to come under the denomination of murder, but parties held to bail for manslaughter in the first degree.

Where the offense was committed on navigable tide waters wholly within the State of New York, and the United States courts and the State courts assumed jurisdiction thereof, the former prior in point of time tc the latter, it was held on a writ of habeas corpus issued to test the legality of the latter arrest, that the conflict of jurisdiction could only be avoided by setting up a judgment pronounced in one of the tribunals, which, when obtained, would be a bar to the proceeding in the other.

It was also held to be by no means clear that the State courts had not jurisdiction over the subject-matter of the offense whereof jurisdiction had already been exercised by the United States tribunals. At all events, the question considered too important to be decided summarily on habeas

corpus.

THE relator presented, on the twenty-fourth day of August, 1852, to Mr. Justice EDMONDS, his petition, verified in due form, setting up that John F. Tallman, captain of the steamboat Henry Clay, Edward Hubbard, pilot of said vessel, James L. Jessup, captain's clerk, John Germaine, engineer, Charles

Burning of the Henry Clay.

W. Merritt, second engineer, or oiler, James Elmendorf, second pilot, were, together with Thomas Collyer, one of the owners of said vessel, detained in the custody of the sheriff of Westchester county, under an arrest made by him in pursuance of a warrant issued by John W. Mills, Esq., county judge of Westchester county, on a complaint made before him by Edward Wells, district attorney of Westchester county, charging the said parties with murder.

That such arrest was made in the city of New York, wherein the said sheriff then held them.

The petitioner further alleged that prior to such arrest, to wit, on or about the 4th, 7th, and 11th days of August, 1852, the said several parties had been arrested, committed, and bailed in the United States Circuit Court for the Southern District of New York, the said court having jurisdiction of the offense, on warrants issuing out of said court, on complaints made before George W. Morton, Esq., a commissioner of said court, having authority to entertain the same for the self-same offense with that complained of before the Westchester authorities. That the complaint in Westchester county, and that before the United States Court in this district, were based on the same alleged guilty and felonious act.

And the arrest, commitment, and holding to bail in the United States courts, were anterior in point of time to the arrest under the Westchester warrant, and the United States authorities were entertaining and holding jurisdiction of said offense.

The petitioner therefore prayed that a writ of habeas corpus might issue to the said sheriff, commanding him to bring up the said parties before his honor, Justice EDMONDS, to do and receive what should then and there be considered concerning them.

Annexed and referred to in this petition, were the following documents, duly certified, viz.

The warrant of arrest on the charge of murder issued out of Westchester county by Judge Mills.

The complaints made before the United States Court in

Burning of the Henry Clay.

this district. The several warrants issued on said complaints by U. S. Commissioner Morton. And the bail bonds given by the several parties on their respective commitments under said warrants by the United States Court.

On this petition a writ of habeas corpus in due form, directed to the sheriff of Westchester county, and commanding him to bring up the said several parties before his honor Justice EDMONDS, at the city hall of the city of New York, on the th day of August, 1852, was duly allowed and served in the city of New York, on the sheriff of Westchester county.

And in pursuance of the said writ, the sheriff of Westches ter county returned that he held the said several parties in custody under, and in pursuance of the warrant issued by Judge Mills, referred to, and a copy of which was annexed to Mr. McMahon's petition, upon which return it was agreed by the respective counsel for the prisoners, and the district attorney of Westchester county, that the facts set forth in Mr. McMahon's petition should be admitted to be true for the purposes of the argument on the writ of habeas corpus.

The Westchester warrant, and the complaints before the United States courts referred to in detail on the argument of the habeas corpus, were in substance as follows:

The Westchester warrant recited that Edward Wells, district attorney of Westchester county, had made a complaint before John W. Mills, Esq., judge of the county of Westchester, that on the 28th of July, 1852, the steamboat Henry Clay, used and navigated on the Hudson river within the boundaries of the State of New York, for the conveyance of passengers, etc., while on her passage from Albany to New York with passengers on board, took fire opposite the county of Westchester, and was run on shore in the town of Yonkers, in said county,. and was consumed there by fire. That at that time divers persons whose names are given at length, or stated to be unknown, were passengers on said boat, and that said persons, excepting one John K. Symonds, by reason either of the shock of the collision of the said boat with the shore,

Burning of the Henry Clay.

were cast and thrown, or in their efforts to save themselves from destruction by fire, did cast and throw themselves into the Hudson river, and were suffocated, and drowned, and in consequence thereof died, and that John K. Symonds was burnt to death on board of the said boat.

That John F. Tallman was captain and one of the owners of the boat, and had part of the charge thereof. That Thomas Collyer was one of the owners, and had part of the charge of the boat.

That James L. Jessup was second captain, or clerk, and had part of the charge thereof; likewise Edward Hubbard, who was pilot, also James Elmendorf, the second pilot.

That John Germaine was engineer, and Charles W. Merritt second engineer, and had part of the charge thereof, and that a young man whose name was unknown, was bar-keeper and had part of the charge thereof.

That while the said boat was navigating the Hudson river on that day, for the purpose of excelling in speed a certain other steamboat called the Armenia, used also for the conveyance of passengers on said river, or for the purpose of increasing the speed of the Henry Clay, the said prisoners did create or allow to be created, an undue or an unsafe quantity of steam, and in so doing did make or cause or allow to be made upon the Henry Clay, excessive fires, and did not use ordinary prudence in the management of the same, and although remonstrated with on account of the same, by different passengers on board, did not for a long time abate the same, but for a long while continued the same, in consequence whereof, and of the culpable negligence, and criminal recklessness of the said Tallman, Collyer, Jessup, Elmendorf, Hubbard, Germaine, Merritt, and of the bar-keeper of the Henry Clay, did then and there take fire, and all of the deaths ensued as aforesaid. That the complainant has reason to suspect and believe that all, and each of the above named deceased passengers were murdered by an act perpetrated by the said Tallman, Collyer, Jessup, Elmendorf, Hubbard, Germaine, Merritt, and the bar-keeper, which act was imminently dangerous to others, and evinced a de