The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1871-06-25
TIE ERIE RAILWAY WAR.
Motion to Compel Gould to Pay Up-Argument
Of Counsel.

Yesterday the case OF Heath and Raphael vs. Jay
6Ouid, Frederick A. Lane and James Fisk, Jr., and
the other managers and directors Of the road,
for argument before Judge Blatchford In the
United States Circuit Court The case was brought
on by motion on the part OF Heath and Raphael to
OblIge Jay Gould to restore TO the hands OF the
ceiver 10000 shares or Erie stock which, IL Is
charged, lie Illegally distracted from the receiver
ship and also To forbid the Erie company from en-
reinQ the registration OF this stock at the Farmers
Loan and Trust Company putting upon II certain
STOCK which was Improperly, ana, as alleged, fraud
uently issued IN connection with the abstraction
OF the Heath and Raphael stock.
Mr.. Evarts and Mr. Soutnmayd appeared as cOun-
eel Tor Heath and Raphael, anu Mr.. Stoughton Mr.
Mr. Beach asked for delay Of the motion, urging
that the original order or the Court Tor the absolute
handing over Of the certificates OF stock was after
wards modified, and the Master was authorized 10
ascertain and report as TO the validity OF the $4,000
shares alleged 10 have been issued by the Erie Com
registered OIL the basis OF so coo OF the 600
shares IN the hands oil the receiver. The reference
before the Master was not completed in the case OF
Heath and Raphael on Tuesday last. An application
had been made for leave to prove the ownership u
the stock in litigation; but this was not allowed.
HIS present motion was upon papers which had
been served upon him on Monday evening at six
O'Clock, and since then Mr.. Gould had had no oppor
tunity 10 examine them. Counsel urged the sus-
pen Of proceedings until the Masters report had
been sent in and read affidavits from Mr.. william
H. Morgan, attorney for the Erie Railway Company,
and Mr.. Gould. stating that the tame afforded for ex
merits OF the litigation were involved IN TINS notion
MIR. Gould had no desire TO delay hinder the trial.
but merely wished for time TO examine the papers
upon which the application was sought TO be suS-
MT soutnmayd said that the purport OF the appli.
cation was not correctly stated. IL was note mo-
lion TO compel Gould TO deliver up property which
he claims as his own. but 10 restore to the posses
OF the court So O0o shares or stock which were
IN Its possession, and which he distracted without
color OF excuse. Mr.. Gould must be familiar with
the contents of ali the papers, ana there was nothing
In the case but the naked Outrage abstraction
OF the stock from the receiver Mr.. Gould never
could realize any offence he had committed until he
was brought into court TO receive punishment. Mr..
Gould now found himself In q tight place. lie tried
robbed had some rights, and the court whose Dig
nity was outraged was bound TO look to the matter
al once.
MIR. Beach argued that there was no evidence to
show that Gould ever interfered with the stock IN
the possession OF the court He merely used 10000
shares OF stock IN the POSSESSION OF the Erie Railway
Company as the basis OF the registration for these
new certificates. The Erie company wanted 10 bring
the property back to Its true owners and prevent
Heath and Raphael from taking this stock TO Eng
land defiance OF the rights OF resident American
owners FISK and Could were owners OF a large
amount of this very STOCK, and they asked an Oppor
nifty TO assert their title TO IT, and for dong this they
are accused OF being robbers and thieves. lie asked
for delay 10 enable him 10 meet the motion pro-
pery and arrive az the truth at the bottom OF this
litigation.
cided that Mr.. Southmayd might make the opening
statement now Tor Heath aud Raphael and an ad-
tournment could be had until Thursday 10 near the
argument for the Erie company.
Mr. sontnmayd then read the opening papers for
Mr. Beach read af1davits from Jay Gould, James
Fisk and Justin ID. White. In the afidavit OF Gould
II was stated that an offer had been made by an
agent OF Heath and Raphael for settlement OF this
litigation and that after negotiation had proceeded
III regard TO this proposed settlement IL was broken
on.
Mr. soutbmayd said he should like TO know who
6he agent referred TO was.
Mr. Beach replied that the name OF the gentleman
was advsedly omitted from motives OF deDcacy.
The Judge-H the name is moi stated In the am
davit the Court viii pay no attention.
r. a Df
the gentleman ia Mr. James Thompson.
The sudge-fhe Court can take notice OF 10 I'M
less The name H stated In the affidayit
Mr. Southmayd then opened his argument for
Heath ana Raphael. lie said w hat was the status
0 iunds placed In the hands OF receiver appointed
by a court, ana what was TO be done with person
VINO rsuduentiy or inJuriously dealt WIN funds so
placedf he quoted opinions OF Chancellor Wal
worth bearing ON these points. Property was In the
hands OF a receiver. and II was taken out OF the re-
ceiVcrs hands upon distress warrant for rent As
che property was N the legal possession Of the
70 remove IT. and, though The landlord might have
been mistaken as 10 bis rights, the order of the
Court was that II should be restored within
twenty daye BY the party who took II, though
ne was not party TO the suit, yet
such property was Obliged 70 put il PACK again.
ANY man who interfered with property In the hands
OF court rendered himself liable for H. and when
ne was called upon to restore It he could not throw
himself back on hts common law right. II man
s6stracted properly property from ,, court and had fuel
years the wrong would last for long time; but the
would compel MIN to restore Ii 20 to prison
lousncss OF Mr.. Jay Gould litigation might be ex.
tended for Ave years Counsel charged that jay
Gould should be held personally responsible for the
abstraction Of this stock, which he had wrongfuly
mr. southmayd's argument was then, at four
O'Clock adjourned until Monday, win the under
standing thai the reference before the Master can
not be closed until the present motion shat 10 dis
bvsed Of.