The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-01-27
Inv a IsLAzD CASE.

ar.,an. 80. >ndnnts 10 Answer Certain
~, Tncro ~ a Reference 10 this Disposition
nua,.x p S4,SO0,0OO-Address by MIR. ID.
' 80 Sertsnt lawsuit, which has occupied 90 much
v A' s.tenson or The courts and which 10 assuming
~ portions emitting Il to Dc casssd among the canss
Sltres OF this city, will be again up this morning
eordiug TO adjournment whom Judge Cardozo will reu.
DER bs opinion 90 ono phnse OF the case The amount
involved Is 81 900. tho disposition Of which the
stockholders anxious 20 aacertsin. The suit u
brought TO cornpsl The dssndsnt John r. Tracy prss
dent Of the company Francis Tows. secretary, and
David Dows, Of tho Executive COMMITTEES OF said
company 10 produce tts books transfer certificates
&C, oil the company. with . view Of sscertsining
what has become Of this four million odd dollars and 10
coEpe them 30 certain questions with reference
lhereio. The reported exclusively in the
herald, and has created ntonse Interest anoag the
hnancers OK Wall s.sest. Tho case heard in su.
pteme Court, Chambers hoforo Judge Cardozo Sat.
nrday last, motion Of Mr. D. Dudley Field 10 compel
the defendants to mako adaviis 70 what has become
OF tho money and to produce the books, &c. The am
davit OF Mr. Charles R. Msryipa was pct In, In
which DO scta sogth thas no applied TO
By Tracy 10 alter certain accounts Of tbs
company, which he refused to DO. The court
room vas crowded by stockholders hackers capitalists
ana bnsuclers Interested hearing Nr. Field address
the court in suppors OF the motion. Tue principal
points insisted on IN the motion ara TO compel The three
Msryins 4 Benjamin. stockbrokers-,o answer certain
Questions IN The form OF afdayits 10 DO uaed in tho
three mn motions which will hs argued the Superior
Court, Chambers, on Saturday NEXT. viz:-F.rst
ton 10 continue this injunctior second 10 punish the
q s u.n ana a &c ,sas o
10 nearly 81 ooo 10 be deposited IN court placed
IN charge OF receiver.
Mr.. Dudley Field, having briefly opened tho motion,
addressed the court IS foows:rho defendants Tracy,
Dows and lows required to make ahoavits 10 be
used on these motions ia behalf Of the plaintiffs. They
attended, and made adavits 10 Part OF the matters
inquired OF them, but refused as the residue The
nrsI motion made y 20 compel them to answer NJ.
Narvine, broker to whom affidavit was rendered,
refused to swear 70 H. aud Ar BENJAMIN, another
broker, presented en- afidavit which deem !nsul-
cieni Tho second motion Is to compel them To
our questions Witnesses Ths matters In respect
ISSUING aud selling tho stock and the disposition
of the procesdx The wing sill serve ~ . sample
OF the questions and rel usals:-
The issue Of these shares upon / decline
:. sw s new 20
q decline s s Of 1s .es ne ssc ssaS ss
chicago for The Of IvIns The transfers made
NE BOOKS sen; TO Chicago a aeelins to answer @
seeds 4 he i.:as, dssns snsvs, que.
s s a Sss q
dealers IN s; . A. decline 70 snswen Do you
All these defendants wore required BY subpoena daes
scm TO produce the books OF tne company And refused
sr Benjamin was requested 10 make an AFFIDAVIT on the
following points viz--As TO Rock Island stock bought
or SO by him for account OF Mr. Marvne which
aciions the plaintiffs claim were made for the ring OF
| directoIs and he mado affidavit stating that he
would diynige nothing, because bis transactions
20 expose them Mr. Msryine at 1rss offered to make
and Wit, then declined, and At last, when
anime his books and then declined to swear TO II be-
cause ''ne could not ruthuliyn do 50. Tho following
10 tho sidsyit;--
Charles r. Msrvire, being required to make shi1rv
on esnalf q the plaintiff e =. used lreo motions
aecrs says that be I member Of toe er
employed " John Tracy e .en he stock o. ias
aud h. ses o. my aT1 and other Sr r began in
s.e. for and SONS time when the Tins
m 1 h e.. 2sss s s hey 80
sspr,d on tSs sits q Dses%ssr .s; he
O the stock were received from John = Tracy,
wa. 30 Tue power eoaarsea 90 scms %
ser 1 sssrs T s 70 The enss m co a MEM
s9renad 70 resa's tho sssx lent sy them After the
themselves brokers, buying stock
am IN wilsh arc eatersd dealings 10 the said stock KEEP. IN
sSy ss .sass
e he hrs, q the said account. ar. en,ere sales Of
SIXTY ,heu:snd shares were most o. them what called
lines. being . The
S 'o1 % Sepohen ~ a .nai ne was
Tracy who 1,qn.ssd him to alter hsse .cScp or some
II tho facts inquired about relevant to the motions
to be made eithsr OF thsm the plaintiffs have right
right is given by section 4oI OF the oods Two cbje6.
lions tasen-nrst that party cannot be required
quiree, an aidav, must s be drawn aud rendered to
him for bis oath Az 10 tbe nrs objection, upon
two grounds II Is said that the language of section $50
OF the code OF civil procedure prohibits the examination
OF an adverse party on motion. rnis IS however,
mistaken the prohibition is OF tho examination OF an
adverse party IN cheftha, H. the ssucs formed
/ by tho plead ngs except ~ the manner provided
by that particular chapter But nothing 10 the chapter
relates 10 "A AFFIDAVIT deposition be used upon q
motion. Tbsn It IL said that there is no authority ess
where for The sxsmina''sa Of party upon molten
the seventh subdivision OF section 40l, follows
when any parry ins-nds 70 make oppose motion
10 any court OF record aud sha be necessary for him
70 have the asiav, OF any person who shall have re-
fused to mako tho same such court may by order APP
point referes TO take the AFFIDAVIT or dep isiton
/ OF such person" This subdivision introduced
into the code In 1862. In order 10 make out
that this language does not inciads party u
Is necessary 20 interpoato tho words "oher taan
party" after the words "any person" 50 to READ
'iany person other than party" Tho Court has 60
authority to make any such Interpolation. Az 10 the
second objection therc is warrant or Il IN any re-
ported The objection would nuliy tue st..u,s
Who beforehand exactly the arloup. - know
edge which another person possesses Of transacon
]. would compel party seeking .n AFFIDAVIT to 90
offensive ,nlng-nsmely, make statement Tor another
70 swear TO, without his Sctasion or Instruction and
Spaso rs tn. 1h ssa.s sTs" RI. no. Question:. .s5
asked srs relevant 20 the motion to continue
illegally Or frsudueniIy issued or sod, or II tse pro.
ceeds have been msapped, or ore in danger OF msap
pllcation the Injunction should Dc eon'inue iadsed
OF the money for any purpose whatever should Tho
issue o. Tho stock DO aijudged Illegal, the money re-
ceved for II must DO returned to the purchasers II
the company suffered transfer tho stock they
will pc hspa DO estoppsd from slisgns the lnvaldiy
OF toe Tho issue OF stock IL suddenly sprung
upon the mercsntlls community. whero IL came FROM
Who managed It. what authority IL was
issued aud scd, what occasion shore MAS
for II, VIVA, the secret operations Of
the ihtc knot OF officials who brought
Is out howl really sold for and what has boon
done vita the money ell questions matsrsi 70 the
contnuauoe o. the injunction and tho other motions
Tho plaintiffs seek to fortify ,her by tho sdsvs
/ OF The persons Who know best AMI who can have no
inchnAious ID tho PLANTING favor n the Issue and
sale or The stock we're illegal OF fraudulent tho stock end
oil iis proceeds should be mpoupded In order 70 pre-
vent tho rights of third persons attaching and
the company from becoming thereby bound TO admit
the Nls9h or fraud ulsnt tasus. Whatever therefore,
I tends 70 prove tho ilisaality or the fraud OF
! tho Issue j. material TO tho motions. And FUR
tnsr u the issue and sails OF the stock shonld
pofchanee turn out 70 30 legal and honest STILL the
safety " the funda 10 mstsrisl to the sockho1ers