The New York herald., 1868-05-08

sworn, saith-l am an attorney and counsellor-at-
counsel behalf OF certain holders of convertible
bonds OF we Ere Railway Company, TO obtain a
mandamus ior the issue OF stock in place OF the
bonds i was informed that an Injunction had been
issued by Judge Barnard restraining the conversion
OF bonds into stock, and that the maniamas was IN,
tended 10 counteract the disastrous eects OF tnat
injunction. In pursuance Of such retainer, aiteI
having, on sundry occasions called on Mr. Justice
ing, called on him early on Monday morning anu
applied Tor the mandamus on behah OF Osslan ~.
Ashley In whom the title to many OF the conVertDe
bonds had become vested, as appeared by MS anu
davit
passed between the said Justice and myself on that
occasiOn:-On my arrival at his house on Monday
morning at halpast nine te Jnase ws nop oasy WIN
applications. l waited I'll they were through.
Judge Gilbert then stated shst ss ne rsuse e
remedy and 1t did not affect public interest; and
he referred me TO two cases. and l TOOK down the
said, without further examination:-'These cases
seem fatal to the application 1t is great hardship
that public corporation should have the power to
deny a right that is apparent on the face Of the
bonds.n We discussed the matter, and he then sug.
gested that mandatory Injunction would have the
same effect and would not be liable to the same OBJ
lection.
decision to Mr.. Field, and suggested that mandatory
injunction would accomplish the purpose Soon af
terwards the summons and complaint in suit
brought by William Belden against Cornelius Van
derbt and others, two afidavits, one of Mr.. Beden
and the other of Mr. Smith, an undertaking and the
Dudley Field. suggested that after what had just
passed between myself and the Judge | had perhaps
as we make the application without him, but he
had better go down with me- in case his presence
required. Wedrove to Judge Gilberts house. then
riage. Judge Gilbert was in the habit of holding
Chambers ut his house, and within the previous week
had, as ! understood, repeatedly granted er pd'te
The following is a precise statement OF all that
passed on that occasionl entered and told the Judge
was about to make an application about mat
ter somewhat connected with the one refused by him
that morning. l sat down and slowly and delibe-
rately read To him the whole complaint and the two
afidavits OF smith and Beden already alluded to.
In answer 10 the suggestion which l hear mas been
made that did not communicate the fact OF an out
standing injunction 10 the Judge, viii state that
the last clause OF the complaint states that the inunc
tion In the last mentioned suit uhat OF the Peopel
restraints the corporation nom converting said
bonds into stock and from issuing any new
stock, &c; ! had no thought, intention or
ing litigation from the Judge, or to suppress
any fact having any connection with the application;
presented the draft inunction; the Judge objected
TO portions OF II aud took IL and made pencil altera
tons; he said he would not grant any Injunction 10
Interfere with suits OF which other courts had OBJ
taned jurisdiction, neither would lac make any order
interfering win Judge Barnard exercising his ju-
dicial functions mentioned that Mr.. Field out.
side and he asked me TO bring hin In: did so and
we waited for about nteen minutes la another room,
when the Judge came IN and handed me the injunc.
ton, with his alterations, saying. There that will
do; We all went into the library, and while Mr. Field
pui into Ink the pencil alterations the Judge and
talked OF Indifferent matters; when he had done MIR.
Field read II aloud and then the Judge read II himself
and made some little alterations the Judge alluded
the fact ihat the papers were largely upon iniorma
ton and belief, 70 which or Mr. Field replied that it
was dlcut to swear positively TO u conspiracy. The
Judge then said 10 the mandatory Injunction, per-
haps ought to give an order TO show cause about
that, SO that notice can be given; but he finally signed
the Injunction Mr. Field wanted the Injunction made
SO as 10 stay all future proceedings the three pending
suits, but the Judge SAID he did not wish 10 40 that
said something TO the eject that Judge Barnard
might issue numerous nJunctions against the Erie
Company and the Judge remarked that we could not
reach Judges action by Injunction against him. |
mt hal thAraN nF1N in fl.n
against either Mr.. Beden or Mr.. Ashley In tis ga-
ton, and understand there was not and never has
been.
Being informed that 1t has been stated by Mr.. II.
+. Clark and A. Rapao, in argument before Judge
mised by Mr.. Field, aud that the fact tnat Judge
Barnard had enoined the issue Of this very stock
word OF truth in the statement. did not deceive
or misead Judge. Gilbert In any way suppress
| msled in any way l did nothing which seemed
then TO me Improper or which now seems 70 Inc "
| Upon being informed that Mr.. Clark and Mr.. Rs.
palo mad made the statements, both before Judge
Barnard and Judge Gilbert, that had intimated that
had been in some way misled or deceived at once
! applied to them personally, and they both denied 10
me repeatedly that they or either Of them had made
any statement or ntnation whatever 10 that effect
| q. T. JENKS.
Sworn before me this 2sth day of April, iSoS.--C.
| I. LOwBEY, Commissioner OF Deeds.
| THE AFFIDAVIT OF WILLIAM n. BOSYSGE
| was also filed. Deponent, together with Andrew
Devine took stenographc notes OF various proceed
ing before Judge Barnard In this litigation, and tes
fed 10 the accuracy OF volunnous transcrptons Of
said proceedings, la the course Of which Mr. Clark
and Mr. Rapallo had repeatedly argued thai the in
junction was obtained by fraud upon Judge Gilbert,
by misleading him In regard to the facts OF the
ut the time he granted tile order that the existence
OF Judge Barnards injunction In the Schel suit was
concealed from Justice Gilbert that application;
that the injunction obtained and the fsc repre-
sentatlons made to Judge Gilbert solely for the pur
pose OF specious pretence 10 enable the defend
ants 10 issue the new stock, &c.
After the 1ling Of these anidays tie court adj
Journed.
SUPERIOR cllIaI-TllAl Ifaa-pLbT