Year: 1869




United States Circuit Court whether II 1t is that Court
power to stay the proceedings in the State Court
and whether II it has the power the circumstances war
its exercise up for argument yesterday before
Judge Bachfod pursuant to the arrangement made on
Monday afternoon


MessTs David Dudley Field. Z. W; st9ughton. and
Dudley Field appeared for Mr. Fisk and Judge Allen and
Messrs. s. J. Tilden, Charles Tracey W. W. Mcfarland
and C. A. Seward for the Company.


Mr. Seward recapulated the leading facts In the case
up the time OF its alleged removal TO the United states
Court and cOntended that the order made by Judge
the order by Judge Rosecrans removed the case as n
whole the United Court and that the order OF
removal The case involved the of act OF
Congress and should be heard its merits IN the United
States Court. The In any event. pending IN the
IT, s. Court until Judge Barnard revoked the order OF
Judge ROsecrans. But the order OF Judge Rosecrans
the effect OF the order Judge Rosecrans after this
latter order had been made although made eI ar and
recall the and take Jurisdiction after the making
and pronunciation OF the order OF Judge Rosecrans IL
judicial legislation when judicial Interpretation failed
This the United States Court and that
Court power issue order staying further
proceedings by the plaintiff, FISK, In the state
the United States Courts Of proceedings in the
State Courts, referred to proceedings only which
were lawfully pending a State Court, and not its pro.
ceedngs like this which had been removed legally into
the United States Courts, any further proceeding IN
contempt Of the United States Court tending sub
vert its Jurisdiction.


Mr. Dudley Field said the foundation Of argument
of Mr. seward was that the case was wholly in United
States Court. II the proceedings by the palntn IN the
NECESSARY for no harm could be The United States
Court could not interfere with state Court in case IN
relation 10 which concurrent jurisdiction existed, when
the State Court had first taken cOgnzance OF the case
In whichever court the was commenced that court
had exclusive jurisdiction until the final disposition Oh he
case by such court. =, ,


Mr.. stoughton said that 1t was due 10 the Supreme
Court OF the State OF NewYork that the United states
Circuit Court should presume that every step taken IN
the former Court in this case was properly and Justly
taken, until the opposite was positively shown The
granting OF order for stay urged on the ground
that things being done In the state Court IN
history OF the United States Courts for this District
that application for such an order as was now songt
had been made because the state Court thonght NJ
TO go on with a OF which II Thought
1t had Jurisdiction Notwithstanding proceedings had
hitherto taken TO such cases had often
been proceeded with TO completion In the state courts
in spite OF such proceedings, entirely ignoring them III
those cases were rlghfuy removed no harm was uone
and the proceedings In the State Courts were simply nu'
gatory and OF non-enect Zach court coulu move Mit
its own sphere, ignoring the action OF the Ote III Any
particular case, and none would ultimately be harmed ny
inrisSiction @ n wonld not he right for the
United States Circuit Court to assume exclusive
then have s action reversed by the supreme Court OF
the United States. The spirit OF the law OF the Uned
States prohibiting the United States Courts from enjon-
ing the action OF state covered the issuing OF the
order asked The relief sought by the plaintiff could
clearly be obtained in the State Court II was sought to
make the Credit Mober disgorge for the benefit OF the
Union Pacific Railroad Company and, incidentally for
frauded the Railroad Company The decision of
Judge Barnard denying the application for removal
the case The two Ameses defendants In the had
petitoned 10 Judge Sutherland for an order TO remove
inc case 10 the United States Circuit Court hpg their
petitions since the making OF the order by Judge Batch
ford declaring that the case was removed ana had then
stopped themselves from receiving the benefit they had
asked for on the original application for removal a.,
further hearing OF the matter adjourned 10 $3.50 r. M
tomorrow.


SUPREME COURT, SPECIAL TERM-MR. DURANT


DISCHARGED FROM EXAMINATIoN-THE SAFE


OF THE COMPANY TO BE BLOWN oPEN-THE


POWERS OF THE RECEIVER EXTENDED.


In the Supreme Court, Special Term, before
Justice Barnard the OF The People, rel Fisk and
Durant was continued The motion 10 commit Mr..
Durknt adjourned over from Monday, up at 10
a. m Judge Barnard announced that after examina-
tion pf Mr. Durants testimony he did not think he would
be Justified IN committing him for contempt since lac had
no Knowledge OF the combination OF the lock which was
III the possession OF one OF the Companys servants ana
other officers OF the Company. As Mt Durant had not
the power to open the safe he should not punish him for
to- should direct the safe 10 be broken open by the
Sheriff and the books 10 be produced In court -.


Mr. Durant then recalled To the stand 10 produce
st OF stockholders he handed two papers but could
not say whether either was perfect list samuel ".
Hooper another member OF Congress interested IN
uase BARNARD then directed Mr. Field to draw an
order that safe be broken open and its contents pro


MT Field then read proposed order reciting the pro-
ceedngs before taken and that the officers OF the Credit
Mobiler and OF the officers OF the Union Pacihc
Psiway had absconded IL continuing the Receiver aud
road COMPANY that hereafter come into the State
handed over 10 the Receiver and inquire into the
ceipts OF the Company from bonds and how II had as


After MT Field had concluded the reading Of the pro-
posed order Mr. Charles Tracy argued Tor tue
that this order was made upon notice and must
II granted ALL appear have been granted e1 parte
Then 70 the recitas they were most scandaous ana
outrageous There was ground whatever for saying
that any OF these gentlemen had abscOnded , mn.


Mr. Tracy said il was not. Mr. Dillon not the kind
Of a man TO abscoDd He had charge OF building two
roads-One In HewJersey further West-and he had
TO attend 20 them great part OF his time necessa
rly occupied with them. II was calnmny TO say OF
these men that they absconded IL seemed 10 be the
settled policy Of the plaintiffs 10 surround the case with


Mr. Bell stated that Mr. Dillon had been in this city
several days within tho last two weeks.


Mr. Field asked II the Sheriff could have found him
MT Bell answered yes, II he had gone where he was


MT Field said he had in his hands an alias atachmen.
returned by the Sheriff unserved As 10 the question OF


Its being ar port the order to show cause, made on sat
and this proposed order was directly within its scope and


Tie Court said that the examination OF Mr. Durant had
faed Tor want OF the production of the books but he did
not know that any Of these gentlemen had absconded
could not be found by the shef %lp sS stSte MI


MIR Tracy objected TO the scope Of the order of refer
The Referee to inquire into the receipts and
expenditures OF Company that had been IN existence
ssOOOOOOO 1t would take the Receiver five years and
whole Treasury Department OF clerks 10 20 through IT,
The Receiver had nothing TO do with what was already
| spent.


Mr.. Field said that they desired 10 inquire lnto now
much Of the stockhoders' money had been stolen and
among whom it was divided. A United States Commis
sioner had just reported that they had made $4,000 per
mile the road and divided among themselves. He
| thought they would probably find out how much had
been divided and among whom, and the parties would
| have 10 refund


Judge Barnard said that at the trial before Referee
Special Term, such matter would be properly In
quired into and therefore it proper IN this order
Mr.. McFarane objected to the order continuing Re
cever appointing Receiver at all OF the property OF


the Company. He would cite precedentthat OF the
Erie where the paintf In this case was sought TO
be restrained from ravage and pillage OF which he
thought he had shown him 10 be guilty In that case
receiyershp OF the railroad had been denied on motion
Was this yet unwhpt Of justice TO obtain an order


had haan al nm