New-York tribune., 1874-12-03
THE COURTS.
TIE slit AGAINST ERIE.
A MOTION MADE FOR NEUTRALITY-SUSPICIOUS. on
W. W. MAcFARLAND, join L. HIIL, AND Ex-

Tho matter which attracted most attention
IN the soar.s yesterday next to the Tweed argument
was tho salt by John c. Augol against the Erie
Railway Company, IN Supreme Court, Cham
bers boforo Judge Westbrook THIS eano up
later 4. tho day. and drew crowd OF lawyers Tue
ease came I'D on the order show cause why receiver
sbould not DO appointed and the counsel present 10
argue it were exJudge Fullerton, Wn C. BARRETT ahu
John L. Hill for tho plaintiff. and Nj MacIar!ahu anu
Judge Shlpman for the Company.
Mr. Macfarand roso to begin tho argument, but was
checked by Mr. Barrett, who said he wished 70 say
word be fore the argument was begun.
Mr.. Barrett-My attention has been called 10 inc
AFFIDAVIT upon which your Honor modified the Injunction
YOU Of course ecOllect the Injunction was oDheu ny
me and my partner upon the 29h, ana In Tue alnud''
presented to your Honor upon which you thouSht III W
modify the Injunction hud tho statement made W r'
Jewet the President Of the Company, VINO says anon"
other things that Judge who granted was grossly
deceived and imposed upon by false' rauuueh'' anu
deceitful representations"
Judre Westbrook interruptine-I want to make
statement in regard TO that did modify the nlnnc
ton order, and the modification feierrru ~ ua'
allegation. did not however. act on thtt aIIrgdlIuI,
hut ON others which tho afl1ayit contained th0hght
il only ust to and yOnr associates 10 say tn't
think you gave mo the contents Oh your papers very
Mr. Barrett-That NAV be your opinion, but here
Sir characterize that statement In the atniavit as Ie'
I dou't care by whom made, and attn ljugn u naJ no
upon information and beIler chaTacteII%j t T
facts fairly "a could, aud my partner went over
them fairly and explicitly. -.
Judge WestbrOok-Lct state further that did NOT
act upon the suppOsOn that you had mlsled me at an
acted upon the suppositon that those bonds naynS
fsseI and being the Lands OF bona e holders,
they ought to be enjoDed from paying me interest
to such persons. That Is tue ground on "hch ar'ed;
M1cftrand-I do not stand here To-day, nor nave
hitherto attempted, TO mako any charges against tne
m - i'm the manner IN which they have The tine may
come when may deem II my duty TO speak, ana "heh
do then the gentleman mtyH ne WISHES sPcta ou t
yr
10 make charges or discalm any lne'p?J1
tion tlc gcn'eGan may see ~ TO put upon tmo ma
illeglble press copy. 1t a document servel
upon Wm. Batter Duncan, between 63 and OciocK On
Monday evening Ii is only cunlent that has been
served In TINS proceeding upon either the Efle h"ay
Company lis office, upon any other ptrsons coh-
neced with THIS document was served at the hour
meutlOn IN direct violation or the rules OF th' COurC
prohibiting the scrvlce and for the best reasons ia
10 this KIND stuff hO.dng tne eGDle cOp'l
II sufficient TO say In this connection that Ior t.e
only ufJrulon which We nave hitherto obtained as TO
what probably contained IN this dOctmeDC We are iu
dcbted public press tn which doubtless the better
copy sent II there be anytmng IN ths proceeding
character d you have seen In Mr. JowetPs amItVt
and justly characterized, az tulbA No sn'i'
be able TO snow, 1t is very grave tmls.
IL is remarkable how person claiming 10
have an interest, mlcrorcJpca and ihhht ;'A III tls
other people VINO are MOVING before you and are
well satisfied with the conduct OF the Company, comes
before you for singular and extraordinary reason
and with singular and Offensive ALLEGATIONS. ~ seehs
Vs. Sr. that IN view OF tue nature ana np9rttnS9 o.
this matter and that II may DO once lOr al ulSPo'eu
Of that It is much moro proper, that the Court
may understand tho cause better thah IL Olhef"lSe
would that the motion may Dc dlspOsed Vi upou ls uo
sautIa merits, to apPOint referee 10 take testimony
rather than that tho Application should De met oy ol
pJsng ailayIt5. | a therefore mere to-day 10 move
tuat III of your jurisdiction You VIII grant
an order to take testimony before referee ia
THIS matter We are ready ~ proceed with reference
JUG. Westbrook-I oueht to state further. in making
the order desirable to give yOI the earliest oppor,
rInty possible to argue the motion. also suggested
to the counsel that II urtuer time desired 1t should
Mr. Macfarland-We noticed the care you took to
mako the order returnable quickly, ana were grateful
for H. FOR II or the greatest moment TO US that t3
matter should be speedily aud ensctutly disposed or
Mr. Hill certainly wlll be permitted TO remark. Ia
reply the suggestions Ot adversary, first, Ia re-
gard 10 the character OF the papers Your Honor Will
rcollect that applied t. for the Injunction about
10 oc ock and very after news was receive OF the
death ot Mayor IGvemeyer when Iour Honor adjourned
cer S papers % Mere na tne on P1 39 gSpsa & as wen
existence was sorrod upo" MI Duncan as soon after
done, myself experimenting 1t. In regard TO the
lcgiby OF tho pIper, beyond tue rule ot the Court
upon the ject u serving press cO 81 have Oaly To
say this My friends seem 10 nave understood the
tents the papers well enough, and Mr.. Jewett and
Butler Duncan understood the contents well enough to
mako an atilayit OF the character which
associate has called your hCnors attention to, and
sull ltiently 10 apply to your Honor for modlh;anon
Of NJ but submit that before this matter goes TO
reference. before further step is taken In the
matter. that their Iapers-at least creating
unon fnc aiidayIts which nave been submitted by Mr.
Angeli-,hOuld be presented here, that We may
know the issues upon winch We are 10 he heard
enrr before your Honor or the referee think there
Will then sut lent time to determine whether
or not the matter should be referred to referee non
c5,sf1 the matter may entirely posed OF by your
Honor upon a similar view OF the matter. Ny own
view is that the answer have served IN the dis
posed Of large portion OF the issues. Foe instance We
aege tive distinct occasions and means by which
we say the Ere Railway Company violated It's
fundamental law by lssusas mortgage OF $4,000 OO
uy tne creation Of convertible bonds contrary 10
law. which they afterward covered By the $780,
Bulflo New York and Ere Railroad Company. by the
purchase of 81 900 worth OF coal lands the state
Pennsy ylyanl and by the declaration OF certain Ovid
distinctly, admits tao purchase of tho coal
need OF "a reference upon that. The admits the
purchase Of Buffalo New-YOrk and Erie stock, and
Justltes that and defends Il, sAying n was done under
the advice OF counsel; the answer admits tie deCara-
tion OF dividends upon the advice of counsel aud the
only question when arise upon that issue whether
the dividends were Justified by the financial
condition OF the Company. Then with reference ID
s3OOO0OO mortgage aud the prOpriety OF issuing
that we aoge that the articles of association prohibit
the Erie Company from making any mortgage except
where notice had been gwen III the public prints OF the
CITY OF New York for ten weeks preceding the annual
election Now we have mad that question up before the
Attorney General OF tho State, aud neither there nor
here Is tnere any pretenSe Of the publication or any
such notices. On the contrary tue answer, while
containing denial, winch IA perhaps bro sd enough by
implication to cover that question. this that
the Eric Railway Company was not restricted sug-
pesed IN the complaint, which allegation understand
to relate the charge In the complaint that they were
restricted I'm the matter OF making the mortgage aore
said 40 their allegation in answer is In avoidance The
charge and does not consist OF the denial OF facts
upon which IL Ia predicated. mention chose things or
the purpose Of showing that II We 20 10 referee now
in this stage Of the proceedings, shall DO without
knowledge OF tho issues before the reieree aud we
ought least TO know which OF the facts are to be
denied and they ought 10 be denied oatn, SO IA TO
provide those issues aud bring them down to as narrow
q compass possible.
Mr. Macfarand-The question Is not what shall be
done To against tho Erie Railway Company or its
officers upon tho trial OF this upon It's mer-
its. whehe their acts are not right that may be all
not. But It would by no means follow that this
plaintiff entitled to an Injunction receiver. aid
not suppose thls SUGGESTION OF the reieIeace
would DO agreeable TO my antagonists, but 1t
certainly an exceedingly proper and INST
lnr fn ale ftur
here and governed in great measure strict rule
but by that sound discretion which is IN very large
the authority and jurisdiction OF every magis
trate OF the facts IN the case. Let the case before
referee Will undertake to make issue enough Tor