The New York herald., 1869-03-28
NEW YORK CITY.
Tue CslRrs.
un.r,D STATES CIRCUIT cruar.

The Union Pacific Railroad War-The Case in
the United States Couits-The Jurisdiction
OF the Court Decentralization to Supersede
the Writ OF nIandamus- Judge Blntchford
Holds the Writ 70 Have Been Obeycd-'rhe
Case Properly Before The Court-Psstpone-
nent.
Before Judge Blatchford.
The United States er rel. The Union Pacific Rat!-
road Company us. The Justices of the Supreme
court Qrthe STATE OF Ne.o York or the First judicial
Distsic.-On this case being called yesterday mo-
ton was made to auash the alternative mandamus
granted by Judge Batchford, removing the suit nom
the Supreme Court OF the State to the United States
District Court
Recorder Hackett appearing for Judge Barnard, 20
whom the mandamus OF the court was directed,
moved for postponement OF the case on the ground
that the papers relurnabse 10 the court at eleven
O'Clock had not been served on Judge Barnard tn
hali-past nine o'clock this morning. He had not
had time to institute comparison Of the matters
embraced In the Two orders and he hoped therefore,
tie case would be allowed 10 stand over.
Mr.. Field, on the same side as Mr.. Hackett, and
representing MIR. James Fisk, Jr., inquired from
counsel on the other side whether the two orders
were substantially the same.
Mr.. Tracy, who with Mr.. Barlow and Mr. Bell repre-
sented the company, said the papers were substan-
tally the same.
w. Field contended It was double proceeding
with respect to which they must elect as to which
they shall 90 upon. The suit In the State Court
against twentyseven defendants. petition was
presented by five or the defendants that suit for
the removal OF the whole SUIT from the state Court
into the United States Circuit Court. That petition
on argument was denied. Then several Of these pet-
TONERS applied Tor the first mandamus to compel the
judges OF the Supreme Court to change their deter
mlnaton refusing to certify the case here, and now
Others OF the petitioners apply TO remove the whole
suit here.
The Court-The first proceeding appears to be by
the company alOne the other proceeding s brought
hy three individuals. with Gholn were associated
Messrs T1lden and Allen. for the company.
MI. Clarence Seward submitted that there was no
return as yet made to the writ
Mr. Field said that the petition OF the Union Pacific
Company for the removal OF tue case to this court
was denied, and that then on the Esd OF March,
petition presented to the United sta District
Court for mandalnus to compel the removal OF the
suit here, and that again. the 25th Of March, ex-
actly the same petition presented by other petit
tioners, and these identical questions are presented
halfpast nine O'Clock this morning returnable at
eleven O'Clock. lie would ask was that proper
Judge BIatchford said he could not prevent any
person presenting petition to the Court but II the
spetlton was erroneous and not presented as mat
Ter OF right 1t would be denied.
Mr.. Fleld-Your Honor can compel them to make
an election
Judge Biatchford-T cannot compel an election
where the same parties are praying for two different
remedies; and II the prayers are The same and one
granted the other Is snpererogative.
Mr. Feld-The question here Is on the application
OF Mr.. llackett for pCstponement, whether on the
ground that the order OF anlamus to Judge OF the
Supreme Court served after nine O'Clock this morn
sisted on.
Judge Blatchford Certainly not; sufficient time
must be granted.
The hearing on the second mandamus was then
adjourned TO Saturday next, at eleven O'Clock.
ceeccd with.
Mr. field said he thought the idea Of the Court was
that both questions should be argued together.
Judge Blatchford- idea was that if argument
be had IN this case argument in the other may be
unnecessary. II appeared to him thar there was a
dierence between the two cases on the legal ques-
tons and, therefore, II counsel desire It, he dis
posed TO hear it and decide It.
Mr.. Seward wanted to know whether Judge Bar
nard makes a return to the writ.
Mr.. Field-Wnen you move on that we will answer.
native mandamus Is for the party getting the man
damus TO show that 1t has been served the person
TO whom 1t was directed and then to show that it
would necessarily be for peremptory mandamus,
and the answer to that is for the other side 60 show
cause why peremptory mandamus should not be
MOTION TO suPERsEDs THE WRIT
Mr.. Fteld-My first motion Is to supersede the
writ AZ being impr0vidently granted. Here is q
Court accept the service Of the writ and grant the
moved into the Circuit Court and that the Supreme
Court proceed no further in the suit. That is the
Mr.. Tilden, opposing the motion for quashing the
writ hoped they would he allowed to proceed as
early as possible TO present tne grounds on which
they could not deny Mr.. Field the privilege which
belongs to every counsel OF skirmishing in advance
but they were anxious preserve the unity OF the
drama and to get possible TO the points
which thus case Ia to be decided
Mr.. Field contended that there could not be two
orders to remove one case. One order would not be
valid alter the other had been made. The gentle
men themselves had destroyed their own case They
had got mandamus against one Judge and then
they to another judge and get the very thing they
wanted this court to do The case s now out Of the
Supreme Court and Is here.
Mr.. Tilden-Does counsel admit that the case Is
removed to this courti II So no order can be made
N tn Gh q NUrlt
Mr.. Fied-I would like to see the law for that.
Anything that shows motion should be quashed is
Controversy between different judges They get
mandamus against Judge Barnard TO compel him TO
remove case % ,s c9ars ne % refuses aney 20 then
they want Judge Barnard to accept the order OF
Judge Rosenkrans. No Judge Is pound to DO that.
that was not for them 10 say. NY motion rs, your
Honor. to supersede the writ; but It has already
been superseded by acss Of counsel subsequent to
Ihe presenting OF the papers your Honor when you
Judge Blatcnford-it appears to me that when an
alternative mandamus II returned for non-c0m-
piance It ought to be presented by some authen-
&c communication that can be recognized from the
must be return so to speak, to show cause Tho
Judges of the supreme Court act by their clerk and
:a 'SI e
cannot be removed Tor the reason that the case Is
aeady removed the TN or, moon lot ~ % s
from the supreme Court. from whom the nlandamus
Ii addressed.
Mr.. Field-Thc mandamus Is addressed to the
Judge Of the court and ID IL not proper for the party
70 come into conrt and suggest that this mandamus
has been improvidently granted, and therefore that
It ought to be supergededf viii put the motion Ia
shape that win admit OF no objection. In behalf II
the plaintin, James Fisk Jr., and without sub
hitting myself TO the jurisdiction OF the court,
the plaintiff that the wrn be superseded. And fur
iher, your Honor, | may say here on behalf OF Mr..
FSAx that w0 do not intend TO submit to the juris-
diction by this court In the case. say. In the Ian
gsiagy OF the supreme Court OF the state OF
Is not an inferior 10 the District Court OF the
Unted States, and We will mos obey any
mandate issued By It. add, however, that ~
thing coming from the Court with entire respecL I
again press my motion to quash the writ, on the
ground that being granted ON eL purte representa-
lions 1t was lmproyidenily issued. And with all
respect TO your Honor say that there Is no jursdc
ton In this Court to issue msndamus 10 Judge or
Judges Of the Supreme Court
Iilduc BlafchInrtl-Thaf mat the nue1fion Hanf