"Because the first and fifth counts are double.
"Because the alleged order of May 25th, referred to therein, was a void and illegal, order.
"Because, if the alleged warrant was served as therein alleged, said Watson Freeman did not, and by law could not thereafter, hold the person described therein, under any process or order.
"And because the same do not set forth and allege fully and specifically the acts charged to be offences against the statute, so as to inform said party charged, of the nature and cause of the accusation.
"6. Because the warrant set forth and referred to therein was void on its face, and issued from and ran into a jurisdiction not authorized by law, and directed the arrest of a person without legal cause, and because said indictment is otherwise bad, uncertain, and insufficient."
Mr. Wm. L. Burt commenced the argument of the motions, and presented several of the points. He was followed by Mr. C.M. Ellis, J.A. Andrew, and H.F. Durant, who severally discussed some of the grounds of the motions.
Elias Merwin, Esquire, and Mr. Attorney Hallett, replied.
The Court stated that they did not wish to hear Hon. John P. Hale, who was about to rejoin and close in support of the motion, and decided that the allegation, on the indictment, that Edward G. Loring was a Commissioner of the Circuit Court of the United States for said District, was not a legal averment that he was such a Commissioner as is described in the bill of 1850, and therefore the indictments were bad.
The Court said they supposed it to be true that Mr. Loring was such a Commissioner, and that his authority could be proved by producing the record of his appointment; that they did not suppose the absence of this averment could be of any practical consequence to the defendants, so far as respected the substantial merits of the cases; and it was true the objection to the indictment was "technical;" but they held it sufficient, notwithstanding the averment that the warrant was "duly issued," and ordered the indictment against Stowell to be quashed. On every other point, save that that the Court could properly construct the Jury roster and return the Jury from a portion of the District, the Judge said they would express no opinion.
Mr. Hallett insisted on his right to enter a nolle prosequi in the other cases; and the Judges decided that, though all the cases had been heard upon the motion, yet as it could make no difference whether an entry were made that this indictment be quashed, or an entry of nolle prosequi, the Attorney might enter a nolle prosequi if he chose to do so then, before the Court passed any order on the motions.