him and which really stayed proceedings, and he so intimated to the Vanderbilt counsel. Progress, therefore, was made upon this day only on collateral and unimportant questions. With a curious forgetfulness of the fact that misdemeanors such as those charged against him were rather matter for the consideration of a High Court of Impeachment than for a petty jury at criminal sessions, Judge Barnard effected a little cheap display of offended virtue on this occasion by sending down to the grand jury all the affidavits and papers relating to the alleged conspiracy; apparently seeking to indicate thereby that he courted an investigation. The affiants were accordingly subpoenaed, but, upon appearing, were told that their testimony was not required; and the same evening the grand jury, more correctly instructed than his honor as to their proper province of duty, were discharged for the term. Matters rested thus until the 19th, the Erie party encamped with their spoils in Jersey City; the officers of the courts, with alias and pluries alias attachments in their hands, pursuing contumacious directors; the matter of the receivership hanging up between heaven and earth; and all parties equally confused as to what might now be the present position of affairs.

The Vanderbilt counsel finally cut the knot by filing a motion in the Schell case, which was now, through the action of Judge Gilbert, on the 18th of March, freed from injunctions, to have the matter of the appointment of a receiver settled by the court. Thereupon an order was granted by Judge Barnard, requiring the defendants to show cause why the order of Judge Clerke, staying the settlement of the receivership order, should not be vacated. Upon the appointed day the Drew counsel came into court and met this order with a bran new injunction from Judge Clerke. The venue in this new instrument was laid in the county of Steuben, and all the parties in all the previous suits, including of course George G. Barnard, were restrained from taking any further action in those suits, or from instituting new ones; they were further enjoined from entering or procuring to be entered any order for the appointment of a receiver of any of the property of the Erie Railway Company; Mr. Osgood also was enjoined from accepting the appointment of receiver; and, finally, the order proceeded, "The clerks of the Supreme Court are enjoined and restrained from entering any order for the appointment of such receiver." Generally, in short, the Vanderbilt faction was en

joined and restrained from doing any thing in the premises, and, by virtue of the closing paragraph of the order, the Drew faction was left pretty much at liberty to do any thing. In spite of this injunction, Mr. Clark opened the case on the part of the Vanderbilt party and read affidavits of Messrs. Schell and Vanderbilt, and of Judge Barnard himself, in denial of the facts alleged in the previous affidavits of the Drew party. In the affidavit of Judge Barnard all allegations of collusion in stock operations, or of any interest in the stock of the Erie road, or of any acquaintance with stock-jobbers, except Mr. George A. Osgood, "a gentleman whose relations with this deponent are exclusively of a social character," were explicitly denied, both in scope and detail. After a very long oration in praise of Judge Barnard, during the delivery of which that gentleman wept freely and evinced every symptom of the deepest emotion,- Mr. Clark closed some severe comments on the injunction just served, with these words:

"It is in your honor's power to strike down this order; and we claim that your honor shall protect us, and we ask that you protect your own jurisdiction and dignity."

To this Judge Barnard replied, "You will draw up an order returnable forthwith, and serve it upon Mr. Eaton as counsel, to show cause why the order granted by Justice Clerke should not be dissolved."

Mr. Fullarton. I

your

suggest that honor treat the order as a nullity. They have made your honor a party in the action, and tied your hands. There will then be no difficulty in the case.

Judge Barnard. - I issue this order because the judges associated with me said I ought to disregard it, or grant an order to show cause forthwith why it should not be vacated.

Mr. Field asked to have the affidavit of service of the papers in the receivership matter read.

When this had been done, Mr. Field proceeded thus:

"I have to say that these papers came into our hands about twenty minutes past ten o'clock this morning for the first time. We came here for the purpose of acquainting you with the injunction granted by Judge Clerke, and give that as a reason why any motion should not be made, and none entertained."

Mr. Field read an affidavit of service of the order in the new suit, and proceeded at some length to argue that the order of Judge

Clerke was issued in the ordinary exercise of the jurisdiction of a Court of Equity to restrain a multiplicity of suits :

"In short, every person is made a party, who has, or claims to have, an interest in respect to these different subjects. It was, as I believe, a proper and respectful, not to say entirely legal, proceeding, in which an injunction has been granted; an injunction which is not in any respect extraordinary, unless the gentlemen choose to say that the fact that a judge of the Supreme Court is a defendant makes it extraordinary; and I have yet to learn that a judge of the Supreme Court cannot be sued. They have been; they are parties like anybody else, whether truthfully or wrongfully made parties depends upon the ultimate decision. An injunction granted to stay other suits is not unusual. In one suit four hundred and fifty-five defendants were prohibited from suing. A receiver when appointed cannot be sued by anybody. The right to sue is not so much a right as the gentleman supposes. Now, having said this, our duty is done. We do not propose to take part in any discussion about the merits of either action. We have come into court to apprise the gentlemen of the injunction granted by Judge Clerke; and whoever proceeds against it violates the law; and, in a court of law, one would suppose that was enough."

Judge Barnard.-So far as the order of Judge Clerke is concerned, staying my proceedings, I have been informed by a majority of my associates that it is void, that I ought to disregard it. I did not disregard the first, but this I have deemed it my duty to disregard, one judge having no authority whatever to tie up by a stay of proceedings the judicial act of a co-ordinate judge acting within his judicial powers. This stay of proceedings will be dissolved, and the order will be proceeded with, appointing George A. Osgood receiver.

The order was then settled, and the day's proceedings closed with the following little passage at arms:

Mr. Field. - We have an appeal from that order, and upon that I ask to have a stay of proceedings until the appeal can be heard.

Mr. Field then read an affidavit by Mr. Eaton, stating that he was counsel for the Erie Railway Company; that any action on the order appointing a receiver would be a source of great injury to the interests of the company and its stockholders; that himself and associate counsel were of the opinion that the order was illegally granted, and that the company had taken an appeal from the order.

Judge Barnard.-Your defendants have been guilty of contempt of court, and resorted to practices which appear to the presiding justice not to be justified by the proceedings in the case, and he therefore denies the

motion.

Mr. Field.

All right, sir; we will see whether some other justice will

not grant a stay, then.

Judge Barnard. Then I will see if it may not be vacated.

Mr. Field.-Very well.

The court then adjourned.

Before proceeding, however, to demand the threatened stay from some other justice," Mr. Field made free use of the weapons already in his hands, and, within ten minutes after the order for the receivership had been settled, the county clerk, the Circuit Court clerk, the clerk at Chambers, as well as all their subordinates, had been served with copies of Judge Clerke's injunction, forbidding them to enter the order in their offices. So the war raged. Judge Barnard had issued his order in defiance of Judge Clerke, sitting, as it were, in a lit de justice; but now who was to record the order, and who was to certify it, and who was to act under it? These, indeed, were momentous questions, and yet not insoluble; for, late in the night, an adventurous clerk of the Supreme Court was found, to whom the inducements held out seemed sufficient, and Mr. Osgood, as yet unenjoined, became the duly appointed receiver. As all the property which Mr. Osgood was authorized to receive was safe in New Jersey, beyond the jurisdiction of the court; and as all the parties to this legal saturnalia had long since ceased to pay any attention to injunctions whatsoever, it is still a difficult matter to decide why Mr. Osgood was ever appointed, or why, being appointed, he objected to being enjoined. The only practical effect of either order or injunction. seems to have been, so far as reported, that Mr. Osgood strove for five days to avoid the inevitable service, and thereby, from his fear of satellites of the law in disguise, seriously inconvenienced his milkman and baker in their access to his kitchen.

The order of appointment of the receiver was settled on the 19th; and, of course, an appeal to the General Sessions was taken. Nine whole days now passed before a new enjoiner made his appearance, but those nine days were not idle ones; they were industriously employed both by court and counsel in the hunting down. and examining contumacious directors; and here the proceedings entered into a new phase, and found, indeed, below the lowest deep a lower still. Hitherto the struggle had meant something so far as the parties to the litigation had been concerned; from this point, however, it ceased to affect them at all, and became simply a dis

graceful free fight of bench and bar. The real struggle, it is true, had never been in the courts; but, though the processes of law had only been used by unscrupulous men, those men had at least been concerned in the strife. In fact, the saddest feature of the whole sickening farce was to observe how the judiciary of a great State allowed itself and its process to be made use of; justice to be perverted, and the law to be brought into contempt. A counsel, prominent throughout these proceedings, in giving recently his final conclusion drawn from them, remarked, that the moral of the whole thing was, that, in New York, if a man was driven to the wall, and utterly unable to fulfil his contracts or pay his debts, deserted alike by God and man, then he should go to the courts, and take out an injunction against fate and his creditors. In this case the great bull and the great bear of Wall Street had closed in fierce conflict; neither cared for the courts or for law or for justice; both wanted weapons and both wanted time, and, with these, a perversion of law might supply them. They wanted to prostitute the powers of the judiciary to their private ends, and the judiciary afforded them every facility for so doing. Thus it was that all this litigation was a sickening farce. "All those injunctions, attachments, precepts, and affidavits, which hurtled through the air, and served as texts for innumerable and ill-considered editorials, were employed by both parties, not because a great wrong had been committed, but simply as legitimate instruments for attaining a definite result. The suit of Work v. Drew, and als. regarding the issue of stock in the 1866 order, had been overhanging the latter for months, and could have been compromised at any time if the defendant had chosen to accept the proffered terms. The injunction restraining the directors from the ten million issue came from Mr. Vanderbilt, not because he believed the act was criminal or illegal, but in order to gain time for freeing himself from his terrible entanglement."

Injunctions, however, being, as it were, now "played out," bench and bar proceeded to devote themselves with great gusto to the scandal of the case. The contumacious directors were brought into court, and many edifying disclosures took place, interspersed with choice exhibitions of judicial courtesy and professional amenities. Some of these were worthy of congressional prominence: a few of them should not be lost. As the various witnesses in the contempt cases appeared in the proceedings before Judge Barnard,