The New York herald., 1871-03-30

aregular and proper manner. Arc those gentlemen
TO oe convicted by your Honor. as matter Of legal
toward the road by means OF paper OF mat klndi
This Is inference the Court cannot draw from this
have done their duty and nasmuch as the complain.
ants have not shown that these men would nave
violated the trust reposed IN them your Honor must
believe that had they been requested to take any
action In the matter right and proper and Tor the
general interest that they would have done their
not apply to have the remedial process taken out OF
the hands OF the board OF directors for the reason
that they made no application for relief TO the
BOARD Had this been done, and the boards refusal
to interfere amounted TO breach Of trust then the
present action would be legal: AND therefore tney
remedy against these three defendants against the
corporation and Its servants because they have laid
no foundation Tor their title OF relief from this Court
on the relusol OF the board on application made to
them to prosecute. Counsel concluded that the
party defendants to the charge Of breach OF trust
and an opportunity given them to defend them
70 That was se oaa h or Of as ss
that II ,,. Is not the right Of .he complain. Ia
but an answer under oath; that this Is what has
been required In this case. and when the defendant
comes here by demurrer on that account he comes
objection. II complainant valves an answer he
waves the only answer he is bound TO make. and
the defendant may come into court and say the only
answer am bound to make is waived and am not
bound 70 make any other answer to this bill. r.s
NOTION FOR AN INJUNCTION.
Mr.. Evarts said he now made motion for an In.
junction restrain the defendants, Fisk Gould and
the Erie Railway Company, from making any fur
ther issue Of stock.
This motion Is based upon an afndavit of Mr.. John
Swan, OF London, agent or Heath & Raphael, who
has arrived in New FORK, and who dcpOses upon in
formation and belief that Fske and Gould and those
acting with them propose to issue another large
amount OF Erie STOCK and that II this be done 1t will
result In great injury TO the company, as he esti-
mates that such Issue of shares must be sold at
twenty per cent below their value.
Mr.. StUughtOn replied that the law was that the
demurrer should DO first decided before the inunc-
ton could be granted.
Judge Blatchord inimated that he would hear
the motion.
Mr.. stoughton said that Mr. Lane, OF counsel for
the Erie Company was ready to stipuiate in open
court that there should be no issue 0f shares until
the demurrer was decided.
Mr.. Evarts-Why not consent to an Injunction
until the demurrer is decldedY
Mr.. Lane-No, no.
Mr.. Evarts-Because II the stipulation is violated
we cannot punish the party violating 1t for con-
tempt.
Mr.. stoughton-The aGldavits have been sent to
me, but as nave been so much engaged in this
Ihave not had time to examine. IL Mr.. Evarts In
ssts on an Injunction ! shall be prepared to argue
the case In the morning.
The matter was then adjourned, 1t being stated
that Mr.. Lane, on behalf Of the Erie Company, woud
submit this morning to the Court some stipulation
IN respect to the point above discussed.