an independent proceeding, thereupon Mr. Field took a new ground and argued as follows:

"Then, sir, I object to the judge on the bench hearing the case. I do this with great respect, and only in discharge of my duty. It so happens, that there is a suit now pending in this court, in another district, in which a judge of this court is a party, upon an allegation that he is interested in this litigation. He is a party in that suit, and that suit is a part of this litigation. That makes him a party to this suit. Whether he be or be not interested, is another thing; that is not for me to decide at all. It is for another judge in another place. And therefore, both on the ground that it would be a direct violation of law, and a void proceeding, if it were carried on, I respectfully object; and I am sure your honor never would partake in a violation of that courtesy which should prevail in all branches of the court, and without which the administration of justice will fall into discredit. Now, sir, you know better than I can tell you, that it not only is a provision of the common law, but of the statute also, that any judge who sits in hearing in any case in which he is interested, is deemed guilty of a misdemeanor. And, with an extreme desire not to say any thing which would be in the slightest degree objectionable, I submit that every requirement of law prohibits this proceeding from going on here."

To which Judge Barnard replied, "Anticipating that these objections might be raised, the justice who is named as a party defendant in that proceeding commenced against him, and to which you refer, submitted the papers that were served upon him to a majority of his associates sitting upon the bench in this district, and they advised him, that, the injunction being granted upon information and belief, their advice was, first, that the injunction should be violated by him; and, second, to hear this matter regardless of the order, because nothing is charged against him, he stating to them that he is not interested in any way in this litigation, and never was so interested.

"Mr. Field regretted that any of the associates should give any such advice as recommending the court to violate an injunction. But that was a matter for higher authority to take notice of, and was not of any material importance to the case under consideration. He (Mr. Field) should have a remedy upon that question in its due and proper time."

Having thus disposed of the preliminary objections, Judge Barnard proceeded to the matter before the court. The returns showed that Messrs. Diven and Skidmore were present in court to answer for their contempt, and that the remaining members of the Board of Directors were not to be found. The next question was in regard to framing an order as to filing interrogatories to the

directors above named, and the fixing of their bail. For those who had voluntarily appeared, the court suggested a nominal bail; but for the others directed bail in the sum of $500,000. What followed was thus reported:

Mr. Field desired to know what authority there was for making the bail in the other cases $500,000. But before any order is made in this case, he wished to file his objections, which he wished to have incorporated in the order just read.

The court did not think that Mr. Field's objections should be incorporated in the order of the court, as they did not form any part of the order, but were exceptions taken to the proceedings.

Mr. Field here read his objections, and said, addressing the court, "That is all true, as you are aware, sir."

Judge Barnard. It is true, sir, that the objections have been made, but not that I have any interest in the stock [suppressed laughter].

Mr. Clark. We object, may it please the court, to the mutilation of

our order by the embodiment of these objections.

Mr. Field. Our order!-our order, does the gentleman say? Is this your order, or the order of the court? I submit that we have a right to have these objections filed. But, primarily, I insist that this whole proceeding is void; that it is good for nothing, and that every one is liable to arrest who takes part in the proceeding.

The Court. I think, Mr. Field, that if you will reflect in regard to your own practice, there is nothing unusual in this course. I have never known such a thing to be incorporated in an order. I will give Mr. Field a separate order.

Mr. Field.-Well, sir, that will do, and add to the other order the words "the court thereafter made the following order."

Mr. Fullarton. Now let us have a fair understanding on this. I want this to be decided according to the regular practice, but I cannot tell but what that order intends to reflect upon the justice before whom this proceeding is taken.

Mr. Field. -Oh, it is not in any way essential here, in the matter of making or framing this order, that the judge is interested in the litigation.

Judge Barnard here dictated the closing sentences of Mr. Field's objections, beginning with the words "the judge disclaiming," &c. The order and objections, as mentioned and modified, were then read as follows:

"The People, &c. v. A. S. Diven. The plaintiffs moving this day to proceed upon the attachment heretofore issued against the defendant for an alleged violation of an injunction, it was objected that the motion for attach

ment was made in violation of another injunction of this court; and, therefore, that no further proceedings should be had; which objection was overruled. It was then objected that the judge, now sitting, could not hear and decide on the questions upon the attachment, because he was party to another suit, being part of this general litigation, and was interested therein; the judge disclaiming that he ever had any interest in this litigation, or that he was ever interested in the slightest degree, either directly or indirectly, remotely or contingently, in the Erie stock, or any other stock, or ever has been; and thereafter an order is made, of which the following is a copy," &c.

This disposed of the matter then before the court. Mr. Clark, of the Vanderbilt counsel, then rose and referred to another matter pertaining to the case, which proved to be no less than an application for an order appointing a receiver of all the property, amounting to millions of dollars of stock, which had been issued in violation of the injunction. A difficulty at once arose about serving notice on the defendants. The Schell case was selected as the best to move in, as, the Balcom injunction not applying in that case, there was only the Gilbert injunction to violate by further proceedings therein. As there was no appearance in that case, it became a question whom the order to show cause should be served upon; which the counsel solved by proposing to serve copies upon the Erie directors there present and answering for their contempt, and upon the counsel then in court, "and this is the best service we can make." The following amusing colloquy, as well as extraordinary specimen of practice, then took place :

Mr. Field. This is an ex parte application, and we do not care any thing about it. The worse you make the case, the better it will be in the

end.

Mr. Rapallo. I ask your honor to make this order returnable on Monday morning.

The Court. I do not think it is necessary to wait until Monday morning. You had better have it made returnable forthwith.

Mr. Clark. We ask that that paper [the order to show cause] be served upon Mr. Diven, who is now in court. [Mr. Clark looked in the direction in which Mr. Diven had been sitting a moment before, and looked astonished also; Mr. Diven was not to be seen.] Is Mr. Diven in court, or has he gone into New Jersey also? [Laughter.]

Mr. Field. That is rather an extraordinary question. Mr. Diven is a gentleman without a superior in the State, and I think that there is no occasion offered here to make any imputation against him.

Mr. Clark. There is another one of the directors here in court, Mr. Skidmore; I want a paper served on him.

Mr. Field. I cannot see that there is any need for making this imputation against Mr. Diven.

Mr. Clark. Mr. Diven is a gentleman for whom I have the profoundest respect, and I had no intention of making any imputation, only that I found that just at that moment when we wanted him he was absent from the court.

Mr. Field. That is sufficient; but the gentleman might reasonably suppose that there are occasions when Mr. Diven might have reason to leave the court momentarily [laughter] without going to New Jersey. [Interesting tittering.]

Mr. Clark. If the court please, I now bring on the order, returnable forthwith, against the Erie Railway Co. and its directors, to show cause why a sum of money amounting to from seven to ten millions of dollars, which has been realized by some of these gentlemen, from sales of Erie stock, in violation of an injunction, should not be brought into court and paid into the hands of a receiver. The papers have, of course, not been considered or examined by counsel for the other side. I don't know that they feel any responsibility in regard to hearing this motion this morning, unless they were sent to them. But I do not propose to do so, nor do I propose to make any very elaborate opening regarding the extraordinary facts which these papers develop, unless my adversaries are prepared to go on. The papers which I hold in my hand set out the whole history of this litigation. They set out and show, between the third and the eleventh days of March, the issue of ten million of dollars worth of stock, in violation of the order made by your honor. It is now floating in the community, and is either in the pockets of these gentlemen, or under their control; although some of it may be out of the jurisdiction of the court. Judge Barnard. Is there any objection to this application?

Mr. Field sat smilingly in his chair, which was tipped back on its rear legs, and looked composed in the extreme, but made no response to the inquiry of the judge.

The Court. Draw up an order appointing Geo. A. Osgood receiver of this fund, with security in the sum of $1,000,000, and requiring these defendants to appear before a referee in regard to the matter.

Mr. Field (rising). The court will understand that this was ex parte.

Mr. Clark.

Mr. Field.

vice. This is ex

to see him do it.

We have given notice, and therefore this is not ex parte. There has been no notice given; there has been no serparte, and now if any one will enter that order, I want

Mr. Fullarton (excitedly and earnestly). I dare enter that order, and will do it with your honor's permission.

Mr. Field. May it please the court, there have been no papers submitted in this case, and no affidavits presented on which this order is made. You have made it upon blank paper, and in complete absence of any regular proceeding whatever. I wish to say, however, that just so sure as this proceeding is being taken in this form, a day of reckoning will as surely come, when these parties will have to answer before some one for this action.

Mr. Fullarton (in a decidedly animated tone). Let that day come, and there will be a reckoning that you will have to bear, and so will every one of those men who have been engaged in this transaction.

The Court. Let it be inserted in that order that as fast as these sums of money obtained shall amount to half a million of dollars, they shall be deposited with the Union Trust Company.

The complete surprise to opposing counsel; the utter disregard of form and practice; the eagerness of the judge outstripping even the demands of the advocate, were not the only or even the most singular features of this singular proceeding. The appointment of Mr. Osgood to the office of receiver was, under the circumstances, a most extraordinary one to be made, especially by the particular justice who made it. Mr. Osgood was the son in law of Mr. Vanderbilt. Considering that Vanderbilt was notoriously one party to the conflict, and considering also the charges of collusion with that party so openly and persistently made against Judge Barnard in his own court-room and to his very face, the appointment did seem to indicate a happy disregard of good taste, and a total ignorance of the proprieties of his position, not at all unworthy of Mr. Justice Barnard's previous reputation.

Naturally the appointment of a receiver, especially when that receiver was Mr. Osgood, scarcely met the views of the Drew interest. Resort was, of course, at once had to the usual weapon; -for, in New York, what matters an injunction more or less? This time Judge Clerke, a colleague of Judge Barnard, but then serving as a member of the Court of Appeals, was applied to, and he met the emergency by at once granting an injunction staying all proceedings in the matter of the receivership until the first Monday in April. This process was served by Mr. Field in person on Judge Barnard upon the 16th, when he took his seat on the bench for the final settlement of details in regard to Mr. Osgood's appointment. Judge Barnard seemed to consider that at last an injunction had been obtained which had some binding force upon