The New York herald., 1878-02-22
THE ERIE SUITS.
Argument on the Appeal in the
Receivers Case.
HIS RIGHT TO BAIL.
The Farmers Loan and Trust
Company Litigation.


Erie Railway Company, upon charge Of perjury
in an affidavit made by him verifying the annual re-
turn OF the company the State Engineer Tor the
year ending on the sOth Of September last. has
already excited q sharp legal contest
the courts, and there Is no knowing
whom the end will be reached. The matter came up
for argument yesterday before the Supreme Court,
General Term, Judges Davis and Brady being on the
bench, upon a writ OF certiorari reviewing the
action OF Judge Donohue directing Pohcs Justice
Morgan, alter Mr. Jewett had waived an az
animation and proiTered bail, to either commH
him. discharge or admit MIN TO BAIL Ex-Judge Full
lerron and Colonel John K Fellows appeared ON De-
half OF Mr.. Jewett aud exJudgo Beach and ex-As-
sistant District Attorney Anen in conjunction with
District Attorney Phelps. on bchalf Of The people
BEAca's ARGUMENT.
In opening his argument Mr.. Beach contended that
the questions presenting themselves for discussion
were-hrst, the writ OF certorari issued
by Judge Donohue within his judicial competence;
second. had the accused, under the statute entitled
s'Of the arrest and examination OF offenders; their
commitment Tor trial, and letting them to ball."
power at any time alter appearance under arrest Dy
magistrate of authority to take the examination OF fthe
complainant aud nis witnesses as directed by the sta
tules and, third ne had such power could he exert
demanding cxamip patlon under the statueY he
insisted that Judge Donohuo misnerpreied the spirit
and dsregarded the letter OF the statute under when
the Polce Justice acting; that the duty Of the
magistrale to take the examination OF the
painant and his witnesses In tho authoritative
mode prescribed is not made dependent upon any
election oy the accused, or upon any other contin-
tiLgency; that the statute gives the prisoner NO
power the proceeding; that he may waive
any privilege OF his but proceedings IN aid OF
public security and the administration OF Grim
fna justice do not depend upon bis volition,
that he may waive for himself, not for tho people;
that the right do does not spring from the statutes
only affect purely personal privieges tnat rs only
upon the assumption, upon which Judge Donohue
the benefit OF The accused, that his conclusion
be sustained That there IS nothing In It's prov-
SONS, in the system Of which II IS part to Justify
the theory; that 1t integral and essential els
the scheme of procedure established Tor the
detection and punishment OF crime; that this is IT'S
primary object, and that details Il scrupulousy
guards Individual right, but not to the Sacrifices
OF It's efficiency an agent IN the administration OF
criminal Justice. He insisted further that the
amnaIlon OF the and his witnesses is re-
Su TO reduce their evidence to an and per.
manent shape as pubic record, and that the return
showing that magistrate had perfect Jurisdictoht
ol the accused Judge Donohue had no power to In
teriere.
ARGUMENT OF JUDGE FULLERTON.
In reply Judge Fullerton contended that u was
the light Of the defendant the proceeding before
for his appearance al The next Court having criminal
jurisdicon, and alter that was done no examination
Uar, Of ns Revised sasu,es entitled of arrest and
examination OF offenders and their commitment" ho
Claimed, Is threeold-1rst, 10 ascertain whether an
offence has been committed; second, whether there
IL probable cause TO believe that the party
accused is guilty. OF that offence, and, third.
II tbere were such probable cause, then TO
hold the accused bail 10 secure his attendance
NJ the court having criminal jurisdiction to an
swer any Indictment which may DO founi against him.
he urged that when the party arrested profers
ball, all Iurher inquiry ss to The commission OF an
offence, the probable Cause lor believing the
inal the law is sAt.aed; that ,t%is part
oil the oueot OF the act " institute an inquision
after the accused offered bail, aud that the Of
Offering admits everything that could be effected
by an examination, und no CONSIDERATIONS OF public
policy viii Justify further proceedings In the
OF his iurlner argument he quoted articles OF the
amendment the Constitution o The United States,
which provides
In ali Grimm prosecutions the accused shall enjoy the
A .u ned pSss s % i'm S
commted which district snail have been viousy as
cause Of ths aceusaton to be confronted with sgs wit
saning witnesses in Ills favor and 10 have tho
counsel Tor his defence.
be insisted, the final trial before jury, aud pro-
vdes ,nat the accused upon such tria De confronted
with the witnesses against MIN. IL Is submitted that
this language Is not satisfied when the accused
person ~ confronted with the testimony OF
the issue invoved was m..era,ly different from
that upon the trial before jury. Not among the
fronted with his witnesses tho iact tbat the jury
see the witness who is produced against him, and
Judge OF his character and the truth OF what he
says by his demeanor when upon the stand; ahd
while It Is concoded that there are authorities
gong 10 show that Testimony upon "A preiin-
tnary examination may be read N evidence upon the
trial before jury yet rs submitted that that ques-
has received that careful consideration winch
Alter some further argument the Court TOOK the
papers ior critical examination OF the conflicting
points raised by the oppUsihg counsel
THE CASE BEFORE THE REFEREE
Judge Spencer. referee in some OF the Eric Rail.
way suits disposed yesterday morning oi several
points that were up before MIN ior decision. The
matter at issue was the case OF the Farmers Loan
and trust Company against. the Ere Railway, in a
suit forecoso the NTH mortgage Of this
corporation. The proceedings wero had IN the con-
pauy's Offices Cham ers street Mr. Arden appeared
as r..
Hepsnawe Tor the Loan and trust Company, and Ar.
Aterbury on bsnaif oi Receiver Jewett
Mr. Atterbury, IN presenting his written answer TO
the obJectous Raised last Monday by Sir. Arden,
made tne following points,
sented by the receiver are IN compliance
with forms as prescribed W the Supreme
in no different form from those heretofore
rendered by the receiver and passed upon by The ref
judgment creditors, hut also the reference. Ihird
whether It be false or true thut the re-
Slaced ia the mortgages, the referee is not
authorized TO inquire Into such question. Fourth.
the reerenee was not appointed Tor nat PURPOSE nor
assets OF the Erie Company or settle the
fights Of the respective a. mor,sssees%; % F,lsh 1.-THE The
Inferior 10 that OF all the mortgages In question;
aud tncy cannot avail themselves Of this to
mcnts; skin, the objection that OF
nortgagod promises arc situated 10 other
States, beyond the jurisdiction oil the Court, Is not
well taken by those whose equities accrued solely In
and by Judgment of such court
RRFEsEE's RULING.
The referee ruled as foiows:-
l am satisfied that have power Jurisdiction to
determine the set forth in the objections take
evidence OF this cnsracter or grant nor allow
the motions proposed. Therefore decide to
take the objections and request, aud the
Of md the motions with
accounting report the objections and &c to
the Court with sie to this ruling
with OF the accounts and accounting OF the
eeve contemplated by the order OF reference The OBJ
3ectors their remedies from the Court the
coming la vi report ON the whole matter and if the
Court decides In their asor and that the evidence should
be taken IL viii be the subject Of suppemc report
Court also make such further orders In regard
~ the manner o these accountngs, Dut they
be made ny the Court aud not by me a. referee.
Mr. Araen had no objections that the whole matter
should DO gwen to the public; IL was n public exam
tuation. Ho moved that the referee return the
In the form presented to him by the receiver,
30 that they might be separated IN such manner as
would accordny 10 his view, enabie hlm 20 protect