The New York herald., 1868-03-15
NEW YORK CITY.
THE COURTS.
SUPREME COuRT-CHAMBERs.

SUPREME coURT-CHAMBERs.
Courts-The Diven Contempt Case-A Re-
ceiver Of the Proceeds of the New Issue Of
Stock Appointed.
Before Judge Barnard
The People 6c, Us. Alexander S. Dtpen.-Yester.
terday morning large array OF counsel appeared
IN this court in the matter Of the proceeding in at
tachment for contempt against Alexander S. Diven,
one of the directors Of the Erie Railway Com
pany. The alleged contempt consists in the allega-
ton that the defendant signed the certificates of
stock which were issued on Monday last to the
amount of about $4,000, 900, in violation of the in
junction issued by Judge Barnard in the suit Of
Richard Schell. Mr.. Diyen was arrested on Thurs
day night.
Mr.. william Fullerton, on behalf OF the people,
stated the case, and moved that the Sheriff make his
return and that the parties who had been arrested
under the attachment answer before the court.
Mr.. David D. Field said that before that was pro-
ceeded with he wished to state that the moving for
the attachment in itself violation of an injunc-
liable for contempt. lie wished to know whether
the court would now take any action upon it.
It was direct violation OF the injunction,
which required that the Attorney General
and his agents "do refrain from proceeding
under or upon the petition on the complaint
In the complaint mentioned, in which The People Of
the State Of New York are plaintiffs, &c. In that
suit they had moved for attachment and he
merely rose to inquire II the court had determined to
proceed.
Mr.. Fullerton-If the court please, SO far as am
concerned, the other gentlemen associated with
and who moved for this attachment quite will
ing to take the consequences Of acts. In the first
the wso ssea sat upon or
the purpose of having 1t modified, and we told
distinctly and emphatically that there was need
to modify it, as 1t was not the meaning intention
Of that Injunction to tie up this proceeding entirely
Where @ an order previously W granted should be vos
lated. The Injunction merely delayed all former
proceedings without invalidating or vacatng
that this Proceeding. against these direc.
OF court, Is q new proceeding, In the nature OF
cdpfas al respondenduna. The original action
titled The People Of the State Of New York against
the suit OF The People &c., against Alexander s.
Diven In that action an injunction was served and
ing punish for that violation, and is proceed
ing, though not proceeding within the meaning Of
Mr.. Heid-So far as the learned counsel refers to
any conversation with any justice OF q court we
have nothing to say But submit that this is not
understood that whatever Judge says in regard to
suit, unless Is in writing, is Of no sort OF
there we plant ourselves In saying that this is not
q proceeding In the original suit the gentleman is
entirely mistaken; and certainly 1t cannot under
any circumstances a new proceeding until the
attachment is returned before the court Mr.. Field
here read the titles OF numerous anidavits in the
case, and concluded by arguing that there was any
validity in the Injunction granted by this court the
subsequent injunction restrained 1t.
Judge Barnard-Before l granted this attach
ment was fearful lest might violate the in
functions granted by Justices Gilbert and Bal
com, and became satisfied, before taking action,
its present aspect. This contempt occurred after
those injunctohs were granted and do not see that
enjon proceeding that 1t was not, when they were
granted, known would ever be resorted to, or occa-
Mr. Field and Mr. Fullerton argued this question
at some length pro and con-, when
The Court remarked do not think it is neces-
sary to discuss this question any further. Mr.. Drew
the Attorney General have nothing to do with this
case, and desire now to hear whether any injunc-
Mr.. Field-The court does not initiate anything,
] hope.
Judge Barnard-The court does not initiate any
thing whatever but Is here to hear this motion,
which is Of itself an independent proceeding.
,Mr I oet @ TO the 1ae the
and only In the discharge OF my duty II SO happens
that there Is suit now pending in this court, in
court IS a party, upon an ailegation that ne .s
interested in this litigation. He Is party In that
makes him party to this suit. Whether he be or be
not interested s another thing; that Is not for
decide at all. 1t is for another Judge in another
place, and therefore both on the ground that II would
be a direct violation OF law, and void proceeding
n 1t were carried on, respectfully object; and
] am sure your Honor never would partake in q
violation Of that courtesy which should prevail in
all branches OF the court, and without which the
administration OF Justice Will fall into discredit.
Now, sir you know better than tell you that 1t
not only s provision OF the law, but of the
statute also, that any Judge who sits In hearing
any case In which he is interested is deemed guilty
OF misdemeanor. And with an extreme desire not
to say anything that would be In the slightest degree
Objectionable, I submit that every requirement. OF
law prohibits this proceeding from going on here.
Judge cBarnard-Anticpatlng that these objections
might be raised, the justice who is named AZ party
defendant In that proceeding commenced against
him, ami TO which you reier, submitted the papers
that were served upon him to majority OF his asso
ciates sitting upon the bench In this district, and
they advised him that the Injunction being
granted upon information and belief their
advice was, first, that the Injunction should
this matter regardless OF the order, because nothing
Is charged against him, he stating to them that he Is
interested In any way in this litigation, and never
Mr. Field regretted that any OF the associates shoud
give any such advice as recommending the court 10
violate Injunction But that was a matter for
higher authority to take notice OF and was not OF any
material importance to the under consideration.
He (Mr Feld) should have a remedy upon that ques-
tion In Its due and proper time.
Mr.. Fullerton called upon the Sheriff TO make his
return to the court on the warrants OF attachment
issued against the various parties
The Sheriff's officer then read as folows:-
/ hereby return that have arrested the within
named defendant, and herewith produce him before
this court. JAMES O'BRlEN, Sheriff.
ALEXANDER $. DEvIN, Defendant
MARCH Ia, 1868.
The officer then proceeded to make return OF the
James Fisk, Jr., Henry Thompson, ]. 3. Eldridge
and william B. Skidmore, stating that they had not
M. Rapalo moved In each case that an alias issue
against all these parties, which the court granted,
with the exception OF Mr.. Skidmore, whom counsel
stated appeared voluntarily and was then In court
Judge Barnard directed that pro forma service be
Tie Skerifrs officer then read also, as not being