Univ. ©f HI. Library 
 51 
 
 3433 " 
 
 — — 
 
 AN INQUIRY 
 
 Oak Street 
 UNCLASSIFIED 
 
 A 
 
 / 1 
 
 INTO THE 
 
 ALBANY & SUSQUEHANNA RAILROAD 
 LITIGATIONS OF 1869 , 
 
 AND 
 
 MR. DAVID DUDLEY FIELD’S CONNECTION 
 THEREWITH. 
 
 BY 
 
 GEORGE TICKNOR CURTIS. 
 
 NEW YORK: 
 
 D. APPLETON AND COMPANY, 
 
 549 & 551 BROADWAY. 
 
 1871 . 
 
/ • 
 
 
 
 > 
 
 
 
 
 
 
 
 
 • ; • . * 
 
 
 
 
 
 
 
 
 
AN INQUIRY 
 
 INTO THE 
 
 ALBANY & SUSQUEHANNA RAILROAD 
 LITIGATIONS OF 1809, 
 
 IR. DAVID DUDLEY FIELD’S CONNECTION 
 THEREWITH. 
 
 BY 
 
 GEORGE TICKNOR CURTIS. 
 
 NEW YORK: 
 
 D. APPLETON AND COMPANY, 
 
 549 & 551 BROADWAY. 
 
 1871. 
 
2 
 
 NOTE. 
 
 Ox or about the 10th of April last, I was requested by an intimate 
 friend of Mr. David Dudley Field, to examine the proceedings in the 
 Albany & Susquehanna Railroad litigations (in 1869) in connection with 
 the complaints made against him in reference thereto, in certain news- 
 papers and other periodicals, and to give my opinion upon the whole 
 matter. I considered this a professional service, especially because 
 from the nature of the subject the tribunal which I should have to ad- 
 dress would be mainly composed of the unbiassed and unprejudiced 
 members of my profession. They alone can properly define — each one 
 for himself — the true rules of professional conduct. To their individual 
 judgments, which will form collectively the judgment of the bar, and 
 be accepted by the lay portion of the public who may take the 
 trouble to understand the subject, I submit the following opinion in 
 compliance with the request that has been made of me. When I con- 
 sented to render this service I had not read any of the complaints 
 made against Mr. Field in the public prints, or the proofs adduced 
 in support of them, or his replies. Of course it became at once my 
 duty to read and to weigh them. I had not at that time any ac- 
 quaintance with any of the litigations to which those complaints 
 and proofs referred, nor had I ever seen, to my knowledge, a single 
 individual who was connected with any of those proceedings, except- 
 ing some of the gentlemen who acted in them professionally, on the 
 one side or the other, nor have I ever had any communication with any 
 one who stood to Mr. Field or. his partners in the relation of clients. 
 My investigations have embraced the records of the several litigations 
 in question, and such matters not therein exhibited as seemed to me 
 material subjects of inquiry. In regard to the latter, I have made no 
 statements which I have not personally verified by resorting to the 
 most direct and satisfactory proofs. 
 
 GEO. TICKNOR CURTIS. 
 
 New York, May 10, 1871. 
 
3 
 
 THE ALBANY & SUSQUEHANNA RAILROAD 
 LITIGATIONS OF 1869. 
 
 OPINION. 
 
 In order to a right understanding of the history of these 
 litigations, it is necessary to state the position and relations 
 of the Albany & Susquehanna Railroad. This road com- 
 mences at Albany and terminates at Binghamton, a dis- 
 tance of about one hundred and forty miles. It lies wholly 
 in the State of New York, and is a New York corporation, 
 subject, of course, to the courts of New York in relation to 
 all its corporate rights and duties. The corporation was 
 organized in 1852, and the construction of the road w^as 
 begun in 1853 ; it was completed and opened for traffic in 
 January, 1869. Albany is the eastern terminus of the great 
 trunk line known as the New York Central Railroad. 
 Binghamton, in the southeastern part of the State of New 
 ft York, lies on the Erie Railway, which is another great trunk 
 line extending from a point in Jersey City opposite to the 
 city of New York, through the northern part of New Jersey, 
 and above the northern boundary of Pennsylvania to Dun- 
 d) kirk and Buffalo on Lake Erie. It has access to and con- 
 nections with the great anthracite coal-fields of Pennsylvania. 
 
 In 1869, at the time of the opening of the Albany & Sus- 
 lf\ quehanna Railroad, the Erie Railway was under the manage- 
 : ment of a Board of Directors, consisting of Jay Gould, A. S. 
 
 Diven, James Fisk, Jr., Frederick A. Lane, J. C. B. Davis, 
 William M. Tweed, Peter B. Sweeny, Daniel S. Miller, Jr., 
 
 
 
4 
 
 Homer Ramsdell, John Hilton, George M. Groves, John 
 Ganson, Charles G. Sisson, O. W. Chapman, Henry Thomp- 
 son, and George M. Diven. The Albany & Susquehanna 
 Railroad was under the management of Joseph H. Ramsey, 
 Jacob Leonard, Jeremiah J. Austin, William A. Rice, Jon- 
 athan R. Herrick, Charles Courter, John Westover, John 
 Cook, Azro Chase, David Wilber, Eliakim R. Ford, Sam- 
 uel North, Ira E. Sherman, and Alonzo Everts. 
 
 The Albany & Susquehanna Railroad, from its position, 
 was, when completed, capable of being made a connecting 
 link between the Erie Railway and the city of Albany, and 
 from thence with the lines extending from Albany, north and 
 east, into New England ; or it might, by being kept from 
 close business relations with the Erie Railway, be kept as a 
 mere line of communication between the cities of Bingham- 
 ton and Albany, and the towns and regions lying between 
 those places. This capacity of the Albany & Susquehanna 
 Railroad to become an important link by which the coal of 
 Pennsylvania might be made to reach Albany, and thence 
 be distributed to the New England States, by means of a 
 close business relation with the Erie Railway, is an impor- 
 tant fact to be stated here ; because that relation is and has 
 been regarded as one of the main motives which are said to 
 have actuated the managers of the Erie Railway in their 
 efforts to assist those who wished to retain the control of 
 the Albany and Susquehanna Railroad. So far as this mo- 
 tive is an element in forming a correct opinion as to the 
 conduct of any person who may have been concerned as a 
 lawyer in any of the matters involved in the contest for the 
 majority of the direction in the last-mentioned corporation, 
 it ought to be distinctly stated that it was desirable to the 
 Erie Railway Company to have the Albany & Susque- 
 hanna Railroad become a connecting link by which the 
 anthracite coal from the great coal-beds of Pennsylvania 
 could be made to reach the coal-consumers of New England 
 more directly and cheaply than it otherwise could reach 
 them . 1 
 
 1 In 1869 the coal-traffic of the Erie Railway was 1,038,000 tons. 
 
5 
 
 But there is another fact which, with equal fairness, 
 ought also to be stated. Before the Albany & Susque- 
 hanna Railroad was finished, and, therefore, before it was 
 capable of becoming practically connected with the Erie 
 Railway, there was a condition of dissatisfaction among its 
 stockholders and directors, who were to some extent scat- 
 tered along its line, concerning its financial management. 
 At the election of its directors in 1868, by the choice of the 
 stockholders, a majority of directors, representing a decided 
 opposition to Mr. Ramsey, were chosen ; so that when the 
 election of 1869 was approaching, there was an open contest 
 between two parties in this corporation to obtain a majority 
 of the new Board of Directors, wholly independent of any 
 question of connection with the Erie Railway, and growing 
 out of differences that had sprung up within the corporation 
 itself as to the financial policy which had been pursued by 
 Mr. Ramsey in building and managing the road. Mr. 
 Ramsey and his friends were at this time a minority of the 
 board ; his opponents were the majority ; and each party 
 was anxious at the approaching election to secure the con- 
 trol of the new board. 
 
 The condition of the stock of the Albany & Susque- 
 hanna Railroad Company at this time was as follows : Its 
 authorized capital was $4,000,000 (40,000 shares). There 
 had been issued $1,723,800 (17,238 shares), which were un- 
 disputed. Of the original subscriptions, a considerable 
 amount had been forfeited to the company for non-payment 
 of assessments ; 1 and of this amount there were at least 
 $300,000 (3,000 shares) which were alleged to have been re- 
 issued to parties who had not paid more than 25 per cent, 
 of the par, and which were therefore disputed. Assuming 
 that no greater amount of the forfeited stock had been re- 
 issued, there remained in the hands of the company 19,762 
 shares. 
 
 The party desiring to oust Mr. Ramsey from the man- 
 agement (which for convenience may be called the Church 
 
 1 The original subscribers of this forfeited stock had paid, as required by 
 law, 10 per cent. 
 
6 
 
 party), 1 were obliged to rely upon wliat they beld or could 
 obtain of the portion of the stock (17,238 shares) that had 
 been previously issued, and about the issue of which there 
 could be no question. In such a situation, the attitude of 
 the two parties within this corporation would inevitably 
 lead to efforts on the side of the Church party to obtain the 
 right of voting on so much of the 17,238 shares of undis- 
 puted stock as they could command, and to watch and con- 
 trol any proceedings of the Ramsey party to make an im- 
 proper use of portions of the forfeited stock or of the stock 
 that had not up to this time been subscribed for. On the 
 other hand, the effort of the Ramsey party would be to in- 
 crease their ownership or control of so much of the 17,238 
 shares of undisputed stock as they could command, to add 
 from the forfeited stock (if it was rightfully reissued) and 
 from stock not as yet subscribed for, so much as might be 
 needful to secure a majority of the voting power, and to 
 watch and control any attempts of the Church party to vote 
 upon stock not entitled to be represented in the vote for 
 directors, or not entitled to be voted upon by the persons 
 who should undertake to claim that right. I state these as 
 the objects at which the two parties might be expected re- 
 spectively to aim, because they were on the one side and 
 the other lawful and proper objects in themselves. They 
 could be pursued by lawful, proper, and fair means ; they 
 might possibly be sought to be accomplished by unlawful, 
 improper, and unfair means. Whatever was the danger 
 arising from a temptation to use means that might be either 
 illegal or improper, any fair investigation into the conduct 
 of either of these parties must assume that there was a law- 
 ful and proper object which each could seek to accomplish 
 by lawful and proper means. The object of each party was 
 to elect a majority of the Board of Directors at the election 
 which was to take place on the 7th of September (1869); 
 and this could only be done by each party voting on all the 
 
 1 Mr. Walter S. Church was the leading candidate on the ticket for directors 
 in opposition to Mr. Ramsey, voted for in 1869, and was chosen President by 
 that board. 
 
7 
 
 stock on which it could lawfully obtain the right to vote, 
 and by each preventing its adversary from voting on stock 
 not entitled to be voted on, or not entitled to be voted on by 
 the persons who might undertake to use it. Moreover, in 
 such an investigation as I design to make into the proceed- 
 ings of these parties, I shall assume that each of them is en- 
 titled to the presumption, at the outset, that none but law- 
 ful and proper means would be used to accomplish their 
 objects. 
 
 Beginning then with the Church party, it is proper to 
 state here that at an early period in the preparation for this 
 contest, some of the leading persons among them, under the 
 circumstances hereinafter stated, sought the aid of Messrs. 
 Fisk and Gould, officers of the Erie Railway, to assist them 
 in acquiring the right to vote on so much of the 17,238 
 shares of stock, then in the hands of bona fide holders, as 
 could be commanded. This required a large amount of 
 money. "Was it a lawful and proper thing to be done ? On 
 this point no doubt whatever can be entertained, if it was 
 lawful and proper for the Ramsey party to obtain the con- 
 trol of any portion of the same stock, or of any portion of 
 the stock remaining in the hands of the company. It was 
 furthermore perfectly natural and right for the Church 
 party (if they considered it to be for the interest of the 
 Albany & Susquehanna Railroad, of which they then were 
 a majority of the directors, to bring about a close business 
 connection with the Erie Railway) to seek the assistance of 
 the leading managers of that road in accomplishing the ob- 
 ject which they had in view; just as it was, on the other 
 hand, perfectly natural and right for the Ramsey party, if 
 they deprecated any connection with the Erie Railway, or 
 for any other reason wished to prevent the Church party 
 from continuing to be a majority of the Board of Directors 
 of the Susquehanna Road, to use all lawful and proper 
 means to accomplish their objects. 
 
 In pursuance, then, of wffiat must be regarded as 
 in itself a lawful and proper object, the Church party 
 proceeded, with the aid of Fisk and Gould, to purchase 
 
8 
 
 stock of the Susquehanna Road then in the stock market, 
 and to obtain from individuals and towns on the line 
 of the road the right to vote on stock held by such in- 
 dividuals or towns, by obtaining either transfers or prox- 
 ies or pledges of votes. Among the directors who rep- 
 resented the dissatisfaction with Mr. Ramsey’s management 
 of the road, were Mr. Leonard, who lived at Albany, Mr. 
 Wilber, who lived at Milford, but whose place of business 
 was in the adjoining town of Oneonta, and Mr. North, who 
 lived at Unadilla. These two towns, Oneonta and Unadilla, 
 were on the line of the road, and both of them held stock 
 in the company. In the month of July, Messrs. Leonard, 
 Wilber, and North, in preparation for the election, applied 
 to Messrs. Gould and Fisk for assistance in purchasing stock 
 of the company. They represented that with the stock they 
 already had, and the stock of such towns as they knew to 
 be favorable to their views, they already had a majority of 
 the stock, but to guard against Mr. Ramsey’s proceedings 
 they considered it desirable to purchase more. They stated 
 to Mr. Gould that they could pledge the stock of Cobleskill, 
 Milford, and Unadilla, to vote for the Church ticket of di- 
 rectors. Mr. Wilber was one of the town commissioners for 
 holding the stock of Milford, Mr. C. Courter, another of the 
 directors in the same interest, was one of the commissioners 
 for Cobleskill, and Mr. Chase was one of the commissioners 
 for Maryland. Mr. North could command the vote on the 
 stock of Unadilla. They considered, therefore, that the four 
 towns of Cobleskill, Unadilla, Maryland, and Milford, vrere 
 sure to vote against the Ramsey ticket, as the tax-payers of 
 those towns had been opposed all along to Mr. Ramsey’s man- 
 agement, and were anxious, moreover, to avail themselves 
 of the first opportunity to have the stock of their towns sold 
 at par. Messrs. Leonard, Wilber, and North, represented 
 to Mr. Gould that although they believed that a decided 
 majority of the stockholders were opposed to Mr. Ram- 
 sey, they desired to place the election beyond peradventure 
 by purchasing stock which they did not then control. Mr. 
 Gould concluded, after deliberation, to assist them, and au- 
 
9 
 
 thorized them to buy stock in the market for him, but not 
 in his name. This was done to some extent. As the con- 
 troversy became warmer, and there was reason to doubt 
 how the commissioners of some of the towns would act, 
 these directors urged Mr. Gould to furnish the funds neces- 
 sary to buy the stock of some of the other towns. This 
 was done with the stock of several towns, and the stock 
 was transferred on the books, but when the stock of the 
 town of Oneonta, purchased by Wilber, was presented for 
 transfer, the town commissioners being present, the treas- 
 urer refused to transfer it. On the next day an injunction, 
 obtained from Judge J. M. Parker, against its transfer was 
 served, and before this injunction could be removed the 
 books were clandestinely removed from the office of the com- 
 pany ; — they were hidden for a time in a tomb in a graveyard 
 in Albany, and were afterward carried from place to place, 
 remaining concealed for a whole month. Agreements were 
 then made by which the stock of Oneonta and Colesville 
 was contracted to the Church party, to be paid for when 
 transfers could be made. The stock of Davenport was pur- 
 chased, and the full amount paid for it, but the transfer was 
 refused. When the election came on, the stock of Daven- 
 port was voted on by Mr. Harris under proxies from Mr. 
 Gould and from the town commissioners. He also voted 
 on the stock of Oneonta (purchased by Wilber) under proxies 
 from Wilber and from the town commissioners. He also 
 voted on the stock of Colesville purchased by Horth, but 
 without any proxy from the commissioners. The stock of 
 other towns, Seward, Summit, and Westford, were pur- 
 chased, and transfers made to the Church party before the 
 books were taken away. The towns of Cobleskill, TJnadilla, 
 Maryland, and Milford, through their commissioners, gave 
 proxies to the Church party, and Mr. Harris voted on them, 
 the commissioners being present. Besides holding the prox- 
 ies, Mr. Harris also voted under an assignment of the stock 
 of these four towns embraced in their agreement to vote 
 for the Church directors. 
 
 It is now necessary to describe a movement made by the 
 
10 
 
 Ramsey party. That movement consisted in a resort by 
 Mr. Ramsey and his friends, to the shares still remaining 
 unissued and unsubscribed for in the hands of the com- 
 pany. On the evening of the 5th of August, Mr. Ramsey 
 assembled the minority of the then directors, at his house, 
 having an old stock subscription-book of the company with 
 him. They subscribed among them for 9,500 shares, on the 
 understanding that the subscribers individually were to 
 make no present payments, but that ten per cent, should be 
 paid in immediately, for which Mr. Ramsey was to pro- 
 vide ; the remainder to be called in when and as the board 
 of directors expected to be chosen by the aid of this stock 
 might direct. It was further agreed, that if any of the sub- 
 scribers did not wish to keep their stock, Mr. Ramsey 
 should take it off their hands after the election. Mr. Ram- 
 sey, therefore, had to raise immediately $95,000, to pay in 
 the ten per cent, on these subscriptions for 9,500 shares. 
 To accomplish this, he drew a draft for $100,000 on David 
 Groesbeck, who cashed it ; and to secure Groesbeck, Mr. 
 Ramsey deposited with him as collateral security $150,000 
 of the equipment bonds of the company, belonging to the 
 company , and which Mr. Ramsey obtained from the Treas- 
 urer for this purpose. The ten per cent, being thus paid 
 in, the 9,500 shares were credited on the books of the com- 
 pany to the supposed subscribers, and they gave their prox- 
 ies to Mr. Ramsey to vote at the coming election. 
 
 It has been said of this transaction, that while “ its 
 legality is open to criticism,” and “its good faith even 
 might well have been suspected,” it was “justifiable ” under 
 the circumstances. 1 The circumstances alleged in its justi- 
 fication are, that Mr. Ramsey “ was fighting men who had 
 set the most infamous precedents ever known for transac- 
 tions of a not dissimilar character ; ” that the “ positions ” of 
 “ these men in the community, their standing in the courts, 
 their financial and fiduciary relations, were notorious.” 
 The amount of these excuses is that Messrs. Fisk and 
 Gould were men whose reputations for fair dealing were 
 
 1 North American Review for April, 1871, Article “An Erie Raid.” 
 
11 
 
 bad ; not that they had thus far done any thing in regard 
 to this particular corporation that could be regarded as 
 fraudulent, but that they had set “ infamous precedents ” 
 in other affairs, that they might therefore be expected to 
 act like knaves in this contest, and hence that it was neces- 
 sary to fight them with weapons of the kind which it was 
 said they were accustomed to use. I presume it must be 
 unnecessary for me to say to any class of readers, whose 
 opinion is of the slightest consequence, that the alleged bad 
 reputation of the men Mr. Ramsey was “ fighting,” can af- 
 ford neither legal nor moral justification for any act of his, 
 that was either illegal or wrong in itself ; and that it is by 
 its own intrinsic character, that both the legality and the 
 morality of this transaction must be judged. If the kind 
 of justification or apology which has been set up for this 
 transaction, is to be admitted as a test of its legality or 
 morality, then the, same rule must be applied to any sub- 
 sequent act done by the opposite party, who must be ac- 
 quitted of wrong by the u precedents ” afforded by their 
 opponents. Ho such rule will be followed in the present 
 examination of these occurrences. 
 
 Up to this point, namely, the 5tli of August, there had 
 been sundry suits commenced. The first that was commenced 
 by the Ramsey party was a suit in the name of the town of 
 Oneonta, against the company and David Wilber, commenced 
 August 2d, in Otsego County, in the interest of the Ramsey 
 party, to restrain the transfer of 700 shares of stock pur- 
 chased of the town commissioners by Wilber, who was in 
 the interest of the Church party. 1 An ex jparte injunction 
 was granted by Judge J. M. Parker of the Supreme Court. 
 It was promptly dissolved, on the 5th of August, on proof 
 that Wilber had purchased the stock in good faith and for 
 full par value. 2 
 
 On the 4th of August two suits were commenced by 
 
 1 A suit instituted by Bush on the same day, will be described hereafter. 
 
 2 1 understand that no service of any injunction or other papers in this 
 case has been made upon any one excepting Phelps, the Treasurer of the com- 
 pany. 
 
12 
 
 David Wilber in the Supreme Court for the City and 
 County of New York. The first was a suit against the 
 Albany & Susquehanna Railroad Company, Ramsey, its 
 President, and Phelps, its Treasurer, to compel the transfer 
 to Wilber on the books of the company of the stock which 
 he had bought of the town of Oneonta (700 shares) and cer- 
 tain other stock which he had bought of the town of Wor- 
 cester. The plaintiff alleged in his complaint that he had 
 presented the certificates to Phelps the Treasurer, for trans- 
 fer, and that the transfer had been refused, on the pretence 
 that the plaintiff had not paid par to the towns for the stock, 
 ec which 'pretence ” the plaintiff alleged “ was untrue P This 
 allegation the plaintiff supported by his own oath, and of 
 course the fact was within his own knowledge. He also 
 alleged, on his information and belief, that Phelps, in refus- 
 ing to transfer his stock, acted in the interest of Ramsey to 
 prevent the plaintiff from voting on the stock at the ap- 
 proaching election. Whether this was true or not was not 
 material to the plaintiff’s right to have his stock transferred. 
 What it was material for the judge to know was, whether 
 the objection to the plaintiff’s title made by the Treasurer, 
 was true or untrue ; and he was informed that it was un- 
 true, by the oath of the plaintiff. Judge Barnard granted 
 an order (on the same day, August 4th) directing the de- 
 fendants to refrain from their refusal to transfer the stock, 
 and to refrain from their refusal to issue certificates to the 
 plaintiff, until the further order of the Court. 
 
 Was this a proper order to be granted? I can see no 
 reason to question it. It was, undoubtedly, an ex parte 
 order ; but the relief which it gave, was a relief to which the 
 plaintiff was instantly entitled, if the judge believed that 
 par value had been paid for the stock, and this he was 
 bound to believe on the oath of the plaintiff that the Treas- 
 urer’s assigned reason for refusing to transfer was untrue, 
 for all the purposes of the order which the order was made 
 to embrace. By reserving to the defendants an opportunity 
 to come in and ask for a “ further order,” the judge protect- 
 ed them in the right to contest the plaintiff’s title to the 
 
13 
 
 stock if they should choose to contest it. What he protected 
 the plaintiff in, was the right to vote on the stock, on the 
 title which he had shown, provided that the defendants 
 should not controvert that title. 
 
 The other suit by Wilber was a suit commenced in the 
 Supreme Court, in the County of New York, on the 4th of 
 August, in his capacity as a director of the company, mak- 
 ing the company, Ramsey, the President, and all the other 
 directors co-defendants. The complaint alleged that Ram- 
 sey, the President, had at various previous times issued 
 3,000 shares of the stock of the company to various persons ^ 
 as full-paid stock, when none of such persons had paid more 
 than 25 per cent, of the par value ; that he had ordered the 
 Treasurer not to transfer other stock to persons who had 
 bought it ; that he had caused collusive suits to be brought 
 for the purpose of preventing bona fide owners of a majority 
 of the stock from voting at the coming election of directors ; 
 that the transfer-books would be closed on the 7th of 
 August, and that Ramsey was seeking to prevent a fair 
 election ; that 44 shares of stock had been issued to one 
 Goodyear without payment of the par value by him to the 
 company, and solely on the false pretence that the company 
 owed Goodyear a debt : and that this issue of stock was in 
 fact made to Goodyear for the purpose of creating votes in 
 favor of Ramsey as a director. This complaint was sup- 
 ported by the positive oath of the plaintiff in respect to the 
 election, the closing of the books, and the wrongful issue of 
 stock to Goodyear, all of which allegations were stated by 
 the plaintiff as within his personal knowledge. In other re- 
 spects, the complaint rested on information and belief. 
 The complaint prayed for the removal of Ramsey from 
 the offices of President and director ; that he be suspended 
 from exercising those offices; that all the defendants be 
 restrained from issuing any stock of the company, except 
 upon subscriptions made in pursuance of a resolution 
 of the Board of Directors, and after public notice of 
 the time and place for making subscriptions, and on cash 
 payments of the par value or upward. Judge Barnard on 
 
14 
 
 the same day (August 4th) made an order covering but a 
 part of the relief sought. The order recited that it appeared 
 satisfactorily to the judge, on the complaint duly verified by 
 the plaintiff, that sufficient grounds for an injunction existed; 
 it directed that the defendants, and each of them, and their 
 agents, refrain from creating or issuing stock except upon 
 subscriptions made after public notice, and at or over the par 
 value paid in cash ; and that Ramsey ref rain from exercising 
 the offices of President and director, and from issuing any 
 stock, or in any way interfering in the affairs of the company, 
 until the further order of the court. This order was served 
 * on Mr. Ramsey on the 4th or the 5th of August. 
 
 Was this a proper order to be granted on this complaint 
 and its verification % The order had two branches. In one 
 part of it, it restrained every officer of the company from 
 issuing any stock, excepting in a mode of proceeding which 
 would in no way cripple the company in its efforts to realize 
 money on any of its stock yet unsubscribed for, and at the 
 same time it protected the company and the bona Ode stock- 
 holders from just such issues as those which were arranged 
 by Mr. Ramsey on the 5th of August, the very next day 
 after this order was made, and after it had been served upon 
 him. It is true that this occurrence had not happened when 
 the order was made ; but its happening within a little more 
 than twenty-four hours is a good illustration of the bearing 
 of the order on the interests of the company. It is true, 
 also, that the complaint gave the court no information that 
 those issues arranged for on the 5th of August were contem- 
 plated or threatened ; but it did allege positively as to a 
 part, and as to the rest on the plaintiff’s information and 
 belief, that wrongful issues of large amounts of stock had 
 theretofore been made, and the plaintiff thus attesting 
 his information and belief of this fact was himself a 
 director. Considering that a contested election of direc- 
 tors was approaching, I think that a judge exercising the 
 powers of a court of equity, when he went no further in 
 ordering a mode of proceeding in the sale and issue of 
 stock, than the protection of the company and the law itself 
 
15 
 
 required, acted wisely, especially as he reserved to the di- 
 rectors a power to come before the court, which was al- 
 ways open, and have the order modified, if it should 
 work any inconvenience. As to that part of the order 
 which suspended Mr. Ramsey from the present exercise 
 of the offices of President and director until the further 
 order of the court, it is to be remembered that this cor- 
 poration had thirteen other directors, among them a Yice- 
 President, who could attend to all the business of the 
 election, and all other affairs of the company ; that the order 
 in no way interfered witli Mr. Ramsey’s candidacy for a re- 
 election as director ; and that it simply created a practical 
 vacancy in the office of President, until Mr. Ramsey should 
 choose to ask to be restored to the exercise of his office. If 
 it is said that the judge should have required more positive 
 evidence of Mr. Ramsey’s alleged previous misconduct in 
 his office, and that it w T as improvident or improper to sus- 
 pend him from it on an allegation of facts supported only 
 by the information and belief of the plaintiff, I think that 
 the facts that the plaintiff was himself a director, that al{ 
 the other directors were made defendants, that Ramsey and 
 the other directors, or any of them, could immediately have 
 had this order rescinded if the plaintiff’s allegations were 
 not true, that there was a positive averment of a wrongful 
 issue of stock to Goodyear, and that the reelection of the 
 new board was not to happen for more than a month, 
 brought the application within the discretion which a judge 
 may exercise in granting injunctions, when he is not required 
 by statute to issue a notice to show cause before taking any 
 action. In this case, the discretionary power does not ap- 
 pear to have been exercised in a manner to do any injury to 
 the interests of the company. 
 
 But it has been objected to this order that it was granted 
 without proper evidence of Ramsey’s alleged misconduct in 
 his office, because the sole evidence in support of the com- 
 plaint was, as it is said, the oath of Wilber, the plaintiff, to 
 his “ information and belief” of the facts of that misconduct. 
 A proper analysis of the complaint and the jurat shows that 
 
16 
 
 a material part of the facts alleged were sworn to he 
 within the knowledge of the plaintiff. As to the matters 
 stated, and sworn to be stated, upon information and belief, 
 I am not prepared to admit that it was not proper for the 
 judge to regard’ at all what was stated on the plaintiff’s in- 
 formation and belief. If we concede the general principle 
 that an injunction is not to be granted on mere information 
 and belief, there was yet enough averred in this complaint, 
 on the plaintiff’s own knowledge, to support the injunction. 
 Thus, the facts that the plaintiff was a director, that Ramsey 
 was President, that Phelps was Treasurer, that there was to 
 be an election on the 7th of September, that the transfer- 
 books were to be closed on the 7tli of August, that 44 shares 
 had been issued to Goodyear without payment of the par 
 value, and that no debt from the company to Goodyear had 
 been audited by the board or their committee, having the 
 sole power to audit claims, were all averred positively in 
 the complaint, and were all within the general rule which 
 makes the plaintiff’s verification of facts so averred by his 
 oath to the complaint, sufficient evidence. Will it be said 
 that it was improper in the judge to connect these facts with 
 the facts averred and verified on the plaintiff’s information 
 and belief, respecting Ramsey’s complicity with this wrong- 
 ful issue of stock to Goodyear, and with his alleged wrong- 
 ful issue of stock to other parties ? That depends upon the 
 proper application of the general rule which declares that 
 mere information and belief is not evidence. Although, as 
 a general rule, information and belief is not legal evidence, 
 it may, under certain circumstances , furnish sufficient ground 
 for granting a motion. Thus, if the party against whom a 
 fact is sworn on information and belief must know whether 
 the allegation is true or false, and he is silent, there is rea- 
 sonable ground for presuming existence of the fact. 1 In 
 like manner, where the question was whether the defendant 
 had purchased certain stock with the money of an intestate 
 estate of which he was administrator, and the plaintiff, on a 
 motion for an injunction, made affidavit that, from his ac- 
 
 1 Oakley v. Aspinwall, 3 New York R. 559, per Bronson, Chief Justice. 
 
17 
 
 quaintance with the defendant’s insolvent circumstances, he 
 believed that he could not have purchased the stock except- 
 ing with money of the estate, and that he had applied to 
 the defendants stock-brokers to inform him of the truth of 
 the fact, and the information was refused , the Court of Ex- 
 chequer held that the evidence was sufficient to grant the 
 injunction, because the party whom the statement was 
 meant to affect had had an opportunity to deny it and had 
 not done so. 1 Let this decision be compared with one of the 
 allegations of this complaint, positively sworn to by the 
 plaintiff, who averred that he had been informed by the 
 clerk in charge of the transfer-book that the issue of stock 
 was made to Goodyear by the order of Ramsey, under pre- 
 tence that some indefinite amount of money was due from 
 the company to Goodyear. 
 
 The general rule that a bill or complaint, in order to 
 afford foundation for an ex parte injunction, must be sup- 
 ported in its averments by something more than the plain- 
 tiff’s information and belief, relates to cases where the bill 
 or complaint, in respect to all its allegations of fact, rests on 
 information and belief alone. Yet, in such a case, there 
 may be a temporary injunction, with an order to show cause. 
 In Campbell v. Morrison, 7 Paige, 157, 161, Chancellor ' 
 Walworth said : “ In cases of emergency, where serious in- 
 jury would probably be done to the complainant before a 
 reasonable time to show cause would expire, the master, 
 upon a bill thus framed [on information and belief alone\, 
 may allow a temporary injunction in the mean time ; wdiicli 
 fails, of course, when the time for showing cause arrives, if 
 not continued by the court.” This was precisely the char- 
 acter of the injunction by wdiich Judge Barnard suspended 
 Ramsey from the office of President, and, moreover, the 
 complaint was not founded on information and belief alone. 
 Indeed, it is the general practice to grant such injunctions on 
 information and belief. It will be seen hereafter that several 
 such injunctions were granted by Judge Peckham to the Ram- 
 sey party on mere information and belief. I have not heard 
 
 1 Scott v. Becher, 4 Price, 346-352; 2 Exchequer R., 137, 139. 
 
 2 
 
18 
 
 that the counsel who advised, or the attorneys who procured 
 them have been censured ; and yet, Field & Shearman have 
 been denounced as guilty of the grossest impropriety of pro- 
 fessional conduct for doing what the critics have overlooked 
 in their adversaries. I do not cite what was done by their 
 adversaries as a justification, if it was illegally done. But I 
 cite it as proof of a general and prevalent practice of the 
 courts to receive statements sworn to be made on informa- 
 tion and belief as evidence to be regarded in granting in- 
 junctions ; and I must add that, in the Albany proceedings 
 in these litigations, the practice was carried to a very great 
 length, for none of the jurats in any of the Bamsey suits (I 
 believe I have examined them all) made the allegations of 
 the complaints to rest upon any thing more than information 
 and belief. 
 
 It may be proper to state here, for the information of 
 those who are not familiar with the statute law of Hew 
 York, that this suspension of Mr. Bamsey from the exercise 
 of the office of President of this corporation, was the exercise 
 of a power vested in the court from which the injunction 
 emanated. By the Bevised Statutes, Part III., chap, viii., 
 Art. 2, § 33, it was declared : “ The chancellor shall have 
 jurisdiction over directors, managers, and other trustees 
 and officers of corporations, .... 3, to suspend any such 
 trustee or officer from exercising his office, whenever it shall 
 appear that he has abused his trust: 4, to remove any such 
 trustee or officer from his office, upon proof or conviction of 
 gross misconduct .” § 35. “ The jurisdiction conferred by 
 
 the preceding thirty-third section, shall be exercised as in 
 ordinary cases , on bill or petition , as the case may require, 
 or, the chancellor may direct, at the instance of the Attorney- 
 General, prosecuting in behalf of the people of this State, or 
 at the instance of any creditor of such corporation, or at the 
 instance of any director , trustee, or other officer of such cor- 
 poration having a general superintendence of its concerns.” 
 This ample jurisdiction passed by the Constitution of 1847 
 to the Supreme Court. 
 
 It is to be observed here that the orders hitherto made 
 
19 
 
 by Judge Barnard, two only, afforded to Wilber, tbe plain- 
 tiff, the provisional relief to which he was entitled, and, at 
 the same time, afforded to the defendants power to have them 
 rescinded or modified, whenever they should appear before 
 the court and offer proofs that Wilber was not entitled 
 to the relief which the orders had given him. If the allega- 
 tions of his complaints were not true, the defendants could 
 at any moment have shown that the orders ought to be re- 
 scinded or changed ; and, whether it can or cannot be said 
 that the order suspending Bamsey from acting as President 
 was improvidently granted, there can be no pretence that it 
 was void. It was therefore entitled to be obeyed. But if I 
 read the history of Mr. Bamsey’s proceedings rightly, this 
 order was not obeyed, although no attempt was made to 
 have it set aside or modified, nor was that part of the order 
 obeyed which restrained the issue of new stock excepting 
 upon certain terms and in a certain mode, nor was any 
 application made to the court to vacate or change it. 
 On the contrary, Mr. Bamsey proceeded on that day, Au- 
 gust 5th (no doubt under advice of counsel, but nevertheless 
 as it seems to me under a mistaken idea of what he could 
 lawfully do), to do acts which violated both branches of 
 Judge Barnard’s order of August 4th. These acts were offi- 
 cial acts as President, and the order had suspended him from 
 the exercise of that office. One of them consisted in taking 
 the subscriptions for 9,500 shares of stock, as above described, 
 on the evening of August 5th, and constituting the alleged 
 subscribers stockholders of the company. The other con- 
 sisted in instituting a suit in the Supreme Court in Albany 
 County of a retaliatory nature, in the name of the corpora- 
 tion, against four of the directors, Leonard, Herrick, Horth, 
 and Wilber, and making Phelps, the Treasurer, a co-defend- 
 ant. This complaint alleged, on information and belief, in- 
 ter alia, that the four directors named defendants had en- 
 tered into a wicked and corrupt conspiracy and combination 
 with Jay Gould and others, managers of the Erie Bailway, 
 to transfer the corporate property and franchises of the plain- 
 tiff, and its whole control and management, to the corpora- 
 
20 
 
 tion known as tlie Erie Railway Company, which last-men- 
 tioned Company it averred was managed and controlled by 
 Jay Gould and others for their own selfish purposes of stock 
 speculation and other private ends, and not in the true in- 
 terests of the said Erie Railway Company, and that the suc- 
 cess of the conspirators in transferring the plaintiff’s com- 
 pany to the same control and management would ruin it. 
 The complaint further alleged as acts of the conspirators, in 
 pursuance of their corrupt and wicked purpose, the com- 
 mencement of suits by Wilber, one of the defendants, on 
 false allegations, and the obtaining of an injunction issued 
 by Judge Barnard, ex parte, in the city of New York, where 
 none of the parties resided, suspending Ramsey, President 
 of the plaintiff corporation, from acting in that office, with 
 the purpose of preventing him from so acting at a meeting 
 of the directors to be held on the same day when the injunc- 
 tion was served, and to get the aid of Herrick as Vice-Presi- 
 dent, acting as President, in furtherance of the general object 
 of the conspiracy ; that the injunction was obtained by fraud 
 and falsehood; that the 3,'t)00 shares alleged in Wilber’s 
 complaint to have been wrongfully issued by Ramsey were 
 lawfully and rightfully issued ; that the other allegations of 
 Wilber in his said complaint were untrue ; and 'that the 
 Wilber suit was instituted and the injunction suspending 
 Ramsey from acting as President was obtained in pursuance 
 of the conspiracy to transfer the plaintiff’s property and the 
 management of its road to Jay Gould and others, etc. That 
 Phelps, the Treasurer, might, if not restrained, transfer stock 
 in plaintiff’s corporation under the order and direction of 
 the four directors named defendants. The complaint there- 
 upon prayed that the four directors be restrained and en- 
 joined from taking any farther steps in pursuance of the 
 conspiracy, and be removed from their positions, and in the 
 mean time be restrained and enjoined from acting as direc- 
 tors, and that Herrick be restrained from acting as Vice- 
 President, and that Phelps, the Treasurer, be restrained from 
 transferring any stock by order of these four directors, or by 
 
21 
 
 any resolution of the board carried by their votes, or either 
 of them, and for further relief, etc. 
 
 This complaint was sworn to by Mr. Ramsey, as Presi- 
 dent , on the 5th of August, before the Albany County 
 Judge; the affidavit being, that the complaint “ is true of 
 his own knowledge, excepting as to those matters therein 
 stated on information and belief, and as to those matters he 
 believes it to be true.” As the corporation was the plain- 
 tiff, there could be no allegation of knowledge made by the 
 plaintiff. Mr. Ramsey’s oath to the complaint, which as- 
 serted nothing but that the whole complaint was on infor- 
 mation and belief, was made in the capacity of President. 
 The Albany County Judge, acting in the Supreme Court, 
 granted the injunction prayed for on the same day, restrain- 
 ing the four directors named defendants from acting as 
 directors, and from voting at any meeting of the board, un- 
 til the farther order of the Court ; and restraining Herrick 
 from acting as Yice-President (without saying until further 
 order), and also restraining the Treasurer, Phelps, from 
 .complying with any direction or demand of the other de- 
 fendants with reference to the disposition or custody of the 
 books and papers of the company, or with any resolution of 
 the board carried by their votes, until the further order of 
 the Court. 
 
 Whether such a suit as this could be instituted in the 
 name of a corporation without a vote of the Board of 
 Directors or of its Executive Committee expressly author- 
 izing it, admits, of course, of the gravest doubt. 1 Whether 
 the President could have instituted it in his own private 
 name, although he was under an injunction suspending him 
 from the exercise of his office, is another matter ; but, in- 
 stituted in the name of the corporation, it was one of the 
 highest corporate acts that could be performed, and in so 
 instituting it Mr. Ramsey necessarily acted as President, 
 and he so described himself in the jurat. He could not 
 have determined to take this step without having deter- 
 mined to disobey the injunction of Judge Barnard, which 
 
 1 It was not authorized by statute. 
 
22 
 
 had suspended him from the exercise of his office ; and it is 
 a remarkable proof of such a determination, that all the 
 facts of conspiracy, etc., alleged in this suit, could, if true, 
 have been presented on affidavits to Judge Barnard, on an 
 application to vacate his order suspending Mr. Ramsey from 
 acting as President, and (if the order had been vacated) he 
 would then have been free to effect the removal of his four 
 co-directors from office, in his capacity of President, if there 
 were facts and law to warrant it. 
 
 The reader, therefore, who has thus far followed the 
 history of the two parties within this corporation, must now 
 observe that he has arrived at a period when the leading 
 person at the head of one of them has determined that he 
 will not obey an injunction issued by a judge of the Su- 
 preme Court, although he has an opportunity to apply to 
 have it vacated. Am I to discuss the question whether this 
 determination was made in reference to the orders of the 
 particular judge, and to enter into conjectures whether it 
 was due to a belief that J udge Barnard himself was a party 
 to the alleged conspiracy?.. Until I hear of an impeach- 
 ment of a judge and his removal from office, I will not so 
 disgrace the judiciary of the State as to inquire for any 
 man’s reasons for disobeying his official orders, or- seek to 
 know whether they are founded in scandal more or less in 
 general circulation. I know of nothing that can justify any 
 breach of a judicial order made by a judge in office; and I 
 beg to say to the public who may read these observations, 
 that when once it is supposed, for any cause, that the orders 
 of one judge are entitled to less respect than the orders 
 of any other judge, the orders of all judges may be set at 
 defiance by any party who does not choose to obey them. 
 But it is the less necessary to inquire whether Mr. Bamsay 
 thought that Judge BarnarJs orders could be disobeyed 
 with impunity, because he averred in this complaint that 
 Judge Barnard’s orders were obtained from him by fraud 
 and falsehood; not that they were made corruptly. If 
 the orders were obtained by a fraud upon the judge, they 
 could have been vacated on showing to him, or any other 
 
23 
 
 judge of the Supreme Court in New York County, that 
 fraud. To disobey and violate the orders of a judge, on the 
 ground that he was imposed on when he issued them, with- 
 out asking him , or any competent authority, to rescind 
 them, is an act without any excuse. 
 
 The reader has also now to notice the situation of this 
 corporation on the close of that day, the 5th of August. 
 Eamsey, the President, was restrained from acting in that 
 capacity or as a director. Leonard, Herrick, North, and 
 Wilber, four of the (Church) directors, were suspended from 
 their offices ; and Herrick, the Vice-President, was in like 
 manner prohibited from exercising in any w r ay the duties of 
 his office. Out of fourteen directors, therefore, there re- 
 mained eight having at that time a legal competency to 
 act. But neither the charter nor the by-laws made any 
 provision for appointing* an acting President in the absence 
 or incapacity of both the President and Vice-President. 
 Moreover, the management of all the business of the road 
 was in the hands of an Executive Committee of five direc- 
 tors ; and a majority of this committee were made incapa- 
 ble of acting by the operation of Judge Clute’s injunction. 
 Without violating an injunction of the Supreme Court, the 
 business of the company could not be carried on in the man- 
 ner prescribed by its charter and by-laws. Payments could 
 only be made by a warrant or check signed by a majority 
 of the Executive Committee ; and, besides all its employes 
 and servants, who were to be paid monthly, the company 
 had other large obligations falling due within sixty days. 
 
 The only alternative was to place the road in the hands 
 of a receiver or receivers. It could not be run for a week 
 without being so placed. Accordingly, on the 6th of Au- 
 gust, a suit w^as instituted in the Supreme Court in the 
 City and County of New York by Azro Chase, a stockholder 
 and a director, against the corporation and all the other 
 directors as co-defendants. The complaint contained two 
 classes of allegations as the grounds on which the interpo- 
 sition of the Court was asked. One class of facts, averred 
 on the information and belief of the plaintiff, related to 
 
24 : 
 
 
 Ramsey the President’s alleged misconduct in issuing stock 
 unlawfully for the purpose of creating votes for himself at 
 the approaching election, and in obstructing the transfer of 
 stock on the books for the purpose of preventing a fair 
 election. The other class of facts, averred positively and 
 supported by the plaintiff’s oath as within his own knowl- 
 edge, related to the present situation of the company under 
 the injunction which had suspended four of its directors, and 
 that suspending Ramsey its President ; its incapacity to 
 make an acting President ; the fact that the Executive Com- 
 mittee were incapable of acting, and that the business of the 
 company could not be carried on according to its charter 
 and by-laws without violating one or more injunctions of 
 the Supreme Court, and the pressing nature of its business 
 engagements. The complaint prayed for the suspension or 
 removal of Ramsey from the offices of President and direc- 
 tor, and for a receiver of all the property of the company, 
 to administer the same under the direction of the Court, 
 with the usual powers, until a full and legal meeting of the 
 directors could act on the appointment of a new President 
 without violating any injunction. Under this complaint 
 Judge Barnard, on the 6th of August, made the following 
 order, the original of which is now before me : 
 
SUPREME COURT. 
 
 Azro Chase 
 against 
 
 The Albany & Susquehanna Railroad 
 Company, Joseph H. Ramsey, Jere- 
 miah J. Austin, Jacob Leonard, Wil- 
 liam A. Rice, Charles Courter, John 
 Westoyer, John. Cook, David Wilber, 
 Eliakim R. Ford, Samuel North, Ira 
 E. Sherman, Alonzo Everts, and 
 Jonathan R. Herrick. 
 
 On the complaint in this action and the affidavits hereto 
 annexed, and the consent of sundry defendants, I do order 
 that Charles Courter and James Fisk, Jr., be and they are 
 hereby appointed receivers of all the property, franchises 
 and effects of the Albany & Susquehanna Railroad Com- 
 pany, with all the powers and authority of receivers in like 
 cases ; that the said receivers file with the clerk of this court, 
 or deposit with a judge thereof, to be afterward filed, a bond 
 with two sufficient sureties, in the penalty of one hundred 
 thousand dollars, for the faithful performance of their duties ; 
 that they take immediate possession of the said property, 
 receive all moneys and make all payments necessary or 
 proper for the due operation of the road ; that they have 
 power to employ counsel and such assistants as they may 
 require ; that they pay for the legal expenses attending their 
 
26 
 
 appointment, and that they be empowered to do all things 
 which any or all of the existing officers, agents and servants 
 might lawfully do. That said receivers shall not be per- 
 sonally liable, except for their wilful wrongs or gross per- 
 sonal negligence. 
 
 And let the defendants show cause before me, at a Special 
 Term of this Court, at the Court-House in New York City, 
 on the 16tli day of August, 1869, at noon, why this order 
 should not stand, and a further order be made in the prem- 
 ises. 
 
 New York, August 6, 1869. 
 
 George G. Barnard, J. S. C. 
 
 We consent to the making of the annexed order : 
 
 New York, August 6, 1869. 
 
 Samuel North, 
 
 Azro Chase, 
 
 Alonzo Everts, 
 
 J. B. Herrick, 
 
 .David Wilber, 
 
 Jacob Leonard, 
 
 C. Courter, 
 
 The Albany <& Susquehanna R. R. Co. 
 
 J. B. Herrick, Y. P. 
 
 That this was an order proper to be made, under the cir- 
 cumstances set forth in the complaint and verified by the 
 oath of a director and his knowledge of the facts, seems to me 
 entirely clear. It will be observed that the order took no 
 action in regard to the averments made on information and 
 belief, as grounds for the removal or suspension of Bamsey, 
 but that it acted only on the receivership, the grounds for 
 which were duly verified. Those grounds being duly veri- 
 fied, the receivership seems to have been a necessity, pressing 
 and immediate ; and as the order directed notice to the 
 defendants to show cause at a Special Term in the City of 
 New York, on the 16th day of August, before the judge who 
 
27 
 
 issued it, why it should not stand, and a further order be 
 made, there can be no just pretence to say, as has been said, 
 that this receivership was obtained in order that by having 
 the control of the road and its property the receivers might 
 by means of that control fraudulently or unfairly carry an 
 election of directors that was not to be held until the 7th of 
 September. In fact, a similar charge is just as applicable 
 to a receivership obtained in Albany on the same day and 
 about the same hour by the Hamsey party, which will be 
 described hereafter, as it is to the receivership obtained in 
 the City of Hew York. 
 
 But there are circumstances said to have been connected 
 with the granting of this receivership by Judge Barnard, 
 which it has been a part of my duty to investigate, and to 
 which I now invite the reader’s attention. Many things 
 have been said or insinuated about this matter which are 
 entirely unfounded. The charge that has been made is 
 virtually, that Judge Barnard was acting collusively with 
 the parties who obtained this order, to assist them in carry- 
 ing out their unlawful conspiracy for obtaining the means 
 of effecting a fraudulent or unfair election of directors. He 
 has been called “the favorite judge of these litigants,” 1 and 
 it has been said that Field & Shearman, their attorneys, 
 must have known that he was so. In proof of this telegrams 
 have been hunted up and most improperly given up by some 
 telegraph office or operator, in shameful violation of the clear 
 duty of the telegraph, which have been published as proofs 
 that Judge Barnard was resorted to to grant this receiver- 
 ship, because he was “ the favorite judge of these litigants,” 
 and that as such he was very willing to aid them. This 
 whole matter is capable of a simple and natural explanation. 
 
 On the 6th of August, Judge Barnard was necessarily 
 absent from his official duties in Special Term at Chambers, 
 attending the bedside of a very near relative (his mother), 
 in Poughkeepsie, who was dangerously ill. In the early 
 part of that day, it appears from the published telegrams, a 
 
 1 General Barlow’s letter. 
 
23 
 
 dispatch signed by Janies II. Coleman 1 was sent to Judge 
 Barnard from the City of Hew York, informing him that 
 certain matters of business in which the City Corporation 
 counsel was concerned, had been postponed to the following 
 Monday, and ending with the inquiry, “ How is your 
 mother % ” About the hour of 5.30 that afternoon, Judge 
 Barnard answered this dispatch with the information that 
 his mother was “ very low.” At a later period in that even- 
 ing it appears from a dispatch that has been published as 
 “Ho. 3,” that the following was sent to Judge Barnard: 
 “ [Ho. 3.] Hon. G-. G. Barnard, Poughkeepsie. Come to 
 Hew York without fail to-night. Answer care 359 West 
 Twenty- third Street. 
 
 1. 15 I). H. Fisk’s pass 550. James H. Coleman.” 
 
 The obvious construction of this dispatch, as Judge 
 Barnard must have read it, was, that his friend Mr. Cole- 
 man meant to inform him that there was urgent judicial 
 business requiring his presence in this city that night, and 
 as he was the judge assigned to hold the Special Term 
 during that month, and, as he understood that all the other 
 judges were absent from the city, he felt bound to comply 
 with the summons. But comment has been made on the 
 fact that this dispatch went under Mr. Fisk’s pass, and that 
 Ho. 359 West Twenty-third Street was “the house of Mrs. 
 Mansfield, where Mr. Fisk was a frequent visitor.” a I do not 
 perceive that the fact that Mr. Fisk paid or franked the dis- 
 patch, is in any degree material, or that it should have at- 
 tracted Judge Barnard’s attention, if it had been on the copy 
 that was delivered to him. But it was not on that copy. 
 If it had been, it could not have affected his construction of 
 the dispatch ; and as to the house to which he was requested 
 to send his answer , it will be seen presently what that has 
 to do with the matter. J udge Barnard’s answer, published 
 as Ho. 4, was the following : 
 
 1 Coleman was an intimate personal friend of Judge Barnard, in no way con- 
 nected with these litigations. 
 
 2 General Barlow’s letter. 
 
29 
 
 . “ Poughkeepsie, August 6th. 
 
 “To James H. Coleman, care No. 359 West Twenty-third 
 Street. I will be there, if sent by you. 
 
 “ Answer. 
 
 “ 9. Col. 30. G. G. Barnard.” 
 
 The meaning of this answer was, “ If you, Coleman , 
 have sent for me, I will be there / ” not at 359 West Twen- 
 ty-third Street, but in the City of New York. Whether 
 any more dispatches passed, the telegraph-office has not 
 enabled the searchers to state ; but the fact is, Judge Bar- 
 nard came to the city that evening at a late hour, and the 
 order was signed as he was on his way from the Hudson 
 River Railroad Station, which is in Twenty-ninth Street, to 
 his own house, which is in Twenty-first Street between the 
 Sixth and Fifth Avenues. 
 
 But it has been insinuated that Judge Barnard signed 
 the order appointing Fisk and Courter receivers, at the 
 house of Mrs. Mansfield, where it is argued or surmised he 
 was found by Mr. Sterling, a partner of Field & Shearman, 
 who proceeded with the papers of the application from Mr. 
 Shearman, who had prepared them at a room in the Opera- 
 House, on the corner of Twenty-third Street and Eighth 
 Avenue, between the hours of 10.20 and 10.35 p. m., to find 
 Judge Barnard. But the fact is that Judge Barnard did^i^ 
 sign the order at Mrs. Mansfield’s house, or at any place 
 where it was improper for him to transact such business ; 
 but he was met in the street by Mr. Sterling, went into the 
 nearest place then open, which appeared to him to be a real- 
 estate office, there examined the papers of the application, 
 heard Mr. Sterling’s statements, and signed the order where 
 he happened to have stopped on his way to his own house, 
 after leaving the railroad station. What is stated about it 
 here is stated upon the authority of Judge Barnard himself, 
 of whom I thought it my duty to make inquiry. 
 
 It is shameful to be obliged to discuss such details, but 
 the reader will perceive that the discussion has been made 
 necessary by the charges, insinuations, and surmises that 
 
30 
 
 have been made respecting this order: To be sure, the 
 insinuations have not been very consistent. It has been 
 suggested that the order was signed at a certain house, in 
 order to give color to the charge that Judge Barnard was 
 “ the favorite judge of these litigants.” Again, it has been 
 darkly insinuated that there is a mystery about this order ; 
 that it never was signed at all ; in order to give color to the 
 charge that the attorneys falsely pretended that a receiver- 
 ship had been granted. Having seen the original order, 
 and knowing Judge Barnard’s signature, I may expect at 
 least to be considered as having put an end to this part 
 of the insinuations ; and having been informed by Judge 
 Barnard that it was signed in no improper place, and was 
 not signed at the house supposed, I may be thought to have 
 disposed of another part of these imputations. 1 
 
 It has also been said that four of the directors who 
 signed the consent to this order — North, Herrick, Wilber, 
 and Leonard — violated the injunction of Judge Clute, which 
 had restrained them from acting as directors. This is true. 
 But it in no way affects the validity of the order — 1st. Be- 
 cause an act done in violation of an injunction, if otherwise 
 valid or material, is not void or immaterial because the 
 party doing it has exposed himself to be punished for a con- 
 tempt; 2d. Because the recital of the order that it was 
 granted on “ the consent of sundry defendants,” even if the 
 consent of North, Herrick, Wilber, and Leonard, had not 
 been given, was supported by the consent of Chase, Everts, 
 and Courter, who were under no injunction. Moreover, the 
 order was also granted on the facts alleged in the complaint 
 and verified by the oath of Chase, the plaintiff, respecting 
 the situation of the company. It was upon the same situa- 
 tion of the company that the Albany receivership was ap- 
 pointed on the next day, but with, perhaps, less propriety. 
 
 It is now necessary to follow this order to Albany, where 
 
 1 For the benefit of readers not familiar with the practice in this city, it 
 may be stated here that the judges of the Supreme Court in this county are by 
 law empowered to perform such judicial acts as signing injunctions and orders 
 wherever they are and at all hours. 
 
31 
 
 it was taken by Mr. Sterling on that night, accompanied by 
 the receivers, Fisk and Courter, for the purpose of demand- 
 ing possession of the office, books, and other property of the 
 company in that city. On the morning of the 7th of 
 August, Mr. Sterling learned in Albany that at some time 
 on the previous night, Judge Peckham, of the Albany Su- 
 preme Court, had signed an order making Robert H. Pruyn 
 receiver of the road, on a complaint made by John W. Yan 
 Y alkenburgh, General Superintendent of the road , against 
 the corporation ; and that the possession of Fisk and Courter, 
 as receivers, who had already taken possession of the office of 
 the company, would be resisted by force. This information 
 was promptly communicated by Mr. Sterling to Mr. Shear- 
 man by telegraph. Rival receivers being thus appointed 
 by the action of the Supreme Court in different counties, it 
 necessarily became a question to be fought out by further pro- 
 ceedings, as to which of the opposing receivers should be first 
 put in possession of the whole property by the process of the 
 law. The collision of authorities was direct. There could be 
 no solution of the difficulty, if the contending parties did not 
 agree to put an end to it themselves, excepting that one of the 
 courts should yield to the other, on the ground of priority of 
 jurisdiction attached; and even this question could not be 
 raised and solved, excepting by putting in motion, on the one 
 side or the other, the appropriate process for enforcing the or- 
 der that one or the other of the courts had made. When such 
 process had issued to enforce either order, a proceeding in 
 the other court to control the execution of that process, on 
 suggested grounds of superior equity or legal right, would 
 raise the question of priority of jurisdiction or superior right 
 or equity, and present the propriety of vacating the receiver- 
 ship granted on the side of those who might seek to control the 
 process. In no other way could the dead-lock be dissolved. 1 
 
 Accordingly, Mr. Shearman proceeded, on the 7th of 
 August, to make and file a supplemental complaint, in the 
 Supreme Court in the County of Hew York, in the name of 
 
 1 All applications by either party were required by law to be made in the 
 district where the original order obtained by such party had been made. 
 
32 
 
 Chase, on whose original complaint Fisk and Courter had 
 been appointed receivers. This supplemental complaint set 
 forth, among other things, the superior equities and rights 
 which the plaintiff claimed for the New York receivership 
 over the Albany receivership. It claimed, as was strictly 
 true, that Fisk and Courter had been appointed receivers on 
 the 6th, and that Pruyn had been appointed on the 7 th. 
 [That readers not familiar with the law of this State may 
 understand this matter, it is proper to explain that a judge’s 
 order takes effect instanter , on its being signed, when signed 
 out of court ; that in the County of New York a judge 
 out of court has power to appoint a receiver, and his 
 order takes effect the instant that it is signed, and does 
 not need to be filed, while in every other county a re- 
 ceiver cannot be appointed otherwise than by an order 
 in court , which takes no effect until it is filed in the clerk’s 
 office, and this can only be done between 9 a. m. and 5 p. m. 
 Judge Barnard’s order making Fisk and Courter receivers 
 was signed in the evening of August 6th. Judge Peckham’s 
 order making Pruyn receiver was signed on the same even- 
 ing, but it was not and could not be filed in the clerk’s 
 office until 9 o’clock a. m. on the 7th.] Chase’s supplemen- 
 tal complaint set forth the grounds on which resistance to 
 the New York receivers by force was anticipated, and was 
 then actually going on. It demanded judgment as prayed 
 for in the original complaint, and further that the defendants 
 and all other persons be enjoined from obstructing Fisk and 
 Courter in the discharge of their duties as receivers, and 
 that Pruyn be enjoined from acting as receiver or claiming 
 to act, and from making any application respecting his al- 
 leged receivership, excepting to the Supreme Court in the 
 present action ; and that all the defendants be enjoined from 
 prosecuting their actions against the company, or the plain- 
 tiff, or the New York receivers, and from commencing or 
 prosecuting any action for the appointment of a receiver, 
 and from making any application therefor except in the 
 present action, and that they be required to submit all claims 
 and alleged rights to a receivership to the Supreme Court in 
 
33 
 
 the present action. The verification of this supplemental 
 complaint was made by Mr. Shearman by an affirmation of 
 his information and belief of what had taken place at Al- 
 bany, and in a separate affidavit he gave the sources of his 
 information respecting the organized opposition to the pos- 
 session of the New York receivers, and the necessity for 
 writs of assistance. Judge Barnard thereupon, on the 7th 
 of August, sitting in Special Term, made an order, embracing 
 the several injunctions as prayed for, and requiring the de- 
 fendants to prosecute their claims to the receivership in the 
 Supreme Court in the present action, and directing writs of 
 assistance to issue forthwith to the sheriffs of the counties 
 where the company had any property, in order to put the 
 New York receivers in possession, and authorizing those re- 
 ceivers to employ any necessary force to resist all attempts 
 to oust them from possession. 
 
 It has been said of this proceeding, firsts that, “ instead 
 of applying to the judges in Albany, all men of high char- 
 acter, to control their own receiver, and to protect Fisk and 
 Courter, if they had any legal rights in the premises, these 
 injunctions and writs of assistance must be telegraphed for 
 and obtained from Judge Barnard .” 1 The insinuation 
 couched in this remark proceeds upon an entire mistake as 
 to what the parties to either side of this controversy about 
 the receivership could do. Neither of them could by law 
 apply anywdiere for support of the receivership that had 
 been granted to either side, or for control of the opposite 
 receivership, excepting in the court which had made the 
 appointment; and General Barlow’s observation, mutatis 
 mutandis , is just as applicable to the parties proceeding in 
 the court at Albany as it is to the party proceeding in the 
 court at New York. It will be seen presently that the Al- 
 bany parties and their counsel understood this point per- 
 fectly. 
 
 Secondly , it has been said that Mr. Shearman had noth- 
 ing but information conveyed to him by telegraph on which 
 to apply for these injunctions and writs of assistance, and 
 
 3 
 
 1 General Barlow’s letter. 
 
34 
 
 that he could only give to Judge Barnard his belief that 
 this information was true. I am not prepared to admit that, 
 when a court has appointed receivers of such a property as 
 a railroad, by an order which took effect as soon as it was 
 signed, and is subsequently informed by an affidavit of the 
 plaintiff’s attorney that intelligence of resistance and of an 
 adverse claim of title has been received by telegraph or 
 otherwise by that attorney, and the supplemental matter is 
 duly brought forward by a supplemental bill or complaint, 
 it is not proper for the court to act and to act promptly 
 upon such a state of things. Open and forcible resistance 
 to the orders of a court, whether carried on with or wdthout 
 the aid of another court, is a serious matter; and the only 
 way in which the claim of the legality of such resistance 
 could be brought to a test in this instance was to enjoin the 
 parties offering it to submit their claims to the court whose 
 order they were resisting, and in the mean time to support 
 that order with the proper process of the law. That this 
 could be done, and ought to have been done, on the infor- 
 mation that was laid before Judge Barnard, I think most 
 lawyers will agree ; for the rule that information and belief 
 is strictly not evidence, does not extend and ought not to ex- 
 tend to the issuing of process to enforce an order previously 
 made in a cause. 
 
 On the same day, August 7 th, a corresponding proceed- 
 ing took place in Albany, at the instance of the Ramsey 
 party and in support of Pruyn’s receivership. This pro- 
 ceeding, which has been called an omnibus suit, was insti- 
 tuted by a complaint made in the names of the company 
 and William A. Rice, a director and stockholder, as plain- 
 tiffs, against all the other directors, together with Samuel 
 Sloan, Ossian D. Ashley, Samuel C. Thompson, David 
 Groesbeck, Joseph Bush, C. H. Dabney, J. P. Morgan, 
 G. H. Morgan, J. J. Goodwin, W. IT. Burns (holders of 
 controverted stock), Yan Yalkenburgh (the applicant for 
 the Albany receivership), Pruyn (the Albany receiver), 
 Fisk, Gould, and Courter (alleged conspirators against the 
 rights and interests of the company), Phelps, the Treasurer, 
 
35 
 
 and Herrick, Yice-President, as co-defendants. The purpose 
 of this action was twofold : first, to draw into the exclusive 
 adjudication of the Supreme Court in Albany County all 
 the matters in controversy in all the other pending suits; 
 secondly , to obtain immediate injunctions against the further 
 prosecution of those suits, and against all proceedings and 
 processes to put Fisk and Courier in possession as receivers. 
 It is remarkable, considering how much has been said con- 
 cerning injunctions granted on “ information and belief,” 
 that every allegation in this complaint (excepting, perhaps, 
 that Rice was a stockholder) was stated therein on informa- 
 tion and belief alone ; nor did the jurat of Rice, annexed 
 to the complaint, give it any other force as evidence than 
 hearsay. It is remarkable also that the charge of conspiracy, 
 made against certain of the defendants, as a principal 
 ground for invoking the control by the court in Albany of 
 suits pending in Hew York and processes issued in those 
 suits, was unsupported by a single affidavit. 
 
 The complaint in this Rice suit, which, for convenience, 
 may be called the omnibus suit, after describing the internal 
 organization of the corporation, proceeded to charge Gould, 
 Fisk, Leonard, Courter, Herrick, Wilber, and Chase, as the 
 principal instigators and plotters in a corrupt conspiracy to 
 obtain the control and possession of the property of the 
 plaintiff corporation in order to subserve their speculations 
 in its stock and the stock of other railroads, and to transfer 
 its franchises and other property to the Erie Railway Com- 
 pany, then wholly under the control and management of 
 Fisk and Gould, to the great detriment and certain ruin of 
 the plaintiff corporation and its property ; that there was to 
 be an annual election of directors on the 7th of September, 
 and that in the event of the said conspirators not being able 
 to secure a majority of the stock before the election, in order 
 to carry out their design, they threatened to prevent an 
 election by the illegal and fraudulent use of the process of 
 the court. In support of this charge, the complaint then 
 set out in detail the various suits that had been commenced ; 
 viz. : by Bush and Wilber (of the Church party), the Ramsey 
 
36 
 
 suit in the name of the corporation against the four conspir- 
 ing directors and Phelps, Yan Yalken burgh’s suit to obtain 
 the appointment of Pruyn as receiver, the suit of Chase to 
 obtain the appointment of Fisk and Courter as receivers, 
 and the various orders and injunctions that had been respec- 
 tively granted therein, all of which, on the Church side, 
 were alleged to have been for the wrongful and fraudulent 
 purposes of the conspiracy charged, and not for any real 
 interest or advantage of the company or its stockholders. 
 In respect to the Albany receivership, this complaint alleged 
 that Pruyn was appointed by the Albany Supreme Court, 
 at a Special Term , on the 6th of August, and that he u im- 
 mediately took actual possession ” of the office and property 
 of the company in Albany ; that Chase’s action to get re- 
 ceivers appointed was commenced “ thereafter ” in pursu- 
 ance of the conspiracy, and that under a paper u purporting 
 to be an order granted at chambers in the City of ISTew 
 York by a justice of the Supreme Court,” and “ under color 
 thereof,” Fisk and Courter came to Albany on the 7th of 
 August and attempted to take possession of the property 
 and effects of the company forcibly, and fraudulently. 1 The 
 
 1 Whatever may be said of this charge as a pleading, it was wholly incapable 
 of being sustained in respect to the priority of the Albany receivership,, either 
 de jure, or de facto ; for the Albany appointment did not take effect until the 
 order was filed in the clerk’s office, at 9 o’ clock, on the morning of the 7th, and 
 if Pruyn had, in fact, taken any possession of the office of the company before 
 that time, such possession could not avail any thing against the order of Judge 
 Barnard, appointing Fisk and Courter receivers, which took effect on the even- 
 ing of the 15tb, when it was signed, and was actually in Albany and possession 
 demanded under it before 9 o’clock on the morning of the 7th. With respect 
 to the allegation that Judge Peckham’s order, making Pruyn receiver, was 
 made at a Special Term , I understand that in point of law, even if Judge Peck- 
 ham did adjourn his Special Term, on the 6th, to the place and time when and 
 where he signed the order on the evening of that day, or to any place and time 
 at which he might be, his order could not take effect until filed in the clerk’s 
 office. In this respect, I understand there is an important difference between 
 the powers of the judges in the County of New York and the powers of the 
 judges in all the other counties, as above explained. Judge Barnard’s order 
 was not filed in the clerk’s office, and did not need to be. Judge Peckham’s 
 order was so filed, and did need to be. No adjournment of Judge Peckham’s 
 Special Term on the 6th to the time and place where he signed the order, or to 
 any other time or place, had been made, as I am informed. 
 
37 
 
 complaint further set forth the necessity for an adjudica- 
 tion of all these matters and controversies in the present 
 action , in order to prevent the inconvenience and mischief 
 of a multiplicity of suits ; and it further averred that 
 Herrick, who had represented the City of Albany in the 
 Board of Directors, was no longer a director, as he had been 
 removed by a vote of the Common Council of that city on 
 the 7th of August. 
 
 The complaint then prayed an adjudication of all these 
 matters and controversies so described, in the Supreme 
 Court in Albany County, in the present action, a removal 
 from office of the directors who were parties to the alleged 
 conspiracy, a stay of all the other proceedings, an adjudica- 
 tion of the titles of the claiming receivers, injunctions 
 against Fisk and Gould to restrain them from acting or 
 claiming to act as receivers, a confirmation of Pruyn as re- 
 ceiver, and injunctions against the alleged conspirators to 
 restrain them from all further acts in the premises and the 
 prosecution of all suits, and to require them to submit all 
 their claims to the court in the present action, and for fur- 
 ther relief. 
 
 On the same day, August 7th, Judge Peckliam signed 
 an order to show cause on the 13th of August, at a Special 
 Term, why all the respective prayers of the complaint 
 should not be granted, and in the mean time, and until the 
 decision thereon, enjoining and restraining Fisk and Courter 
 from acting or claiming to act as receivers, and enjoining 
 and restraining the alleged conspirators and all other per- 
 sons from prosecuting any of the suits described in this 
 complaint, and from prosecuting any other suits to effect a 
 removal of any of the directors of the corporation, or for 
 the procurement of a receiver, and staying all such proceed- 
 ings. 1 
 
 This injunction also contained an extraordinary pro- 
 hibition, addressed to all other persons who might act in 
 
 1 With respect to the powers of the judges in the County of New York as 
 compared with the powers of the judges in the other counties, see Section 24 
 and 401 of the Code of Procedure. 
 
38 
 
 concert with, tlie defendants, or might bring actions or insti- 
 tute proceedings of a like nature, or intended to accomplish 
 the objects sought to be obtained by the actions already 
 brought by the defendants, from advising, commencing, or 
 carrying on, or assisting to commence or carry on, any suit, 
 petition, or proceeding, having for its object, in whole or in 
 part, the removal or suspension of any of the directors of 
 the company, or the procurement of a receiver of its prop- 
 erty, and from continuing, or helping to continue, any such 
 proceeding already commenced. Much comment has been 
 made upon the fact that the injunction in Chase’s suit, 
 granted on the same day, had restrained the defendants in 
 that suit from taking any proceedings for the appointment 
 of a receiver excepting in that action; but the injunction 
 granted at Albany by Judge Peckham went much further 
 than this, and forbade any application anywhere. 
 
 At the time of the service of this order, on the 7th of 
 August, Harris Parr, Sheriff of the County of Albany, had 
 in his hands a copy of the writ of assistance granted by 
 Judge Barnard on that day, which copy had been tele- 
 graphed by Mr. Shearman from the City of Hew York. 
 Much comment has been made upon the fact that this writ 
 of assistance was telegraphed to Albany. I can perceive no 
 impropriety in sending to a sheriff or other executive officer 
 a telegraphic copy of legal process, in order that he may be 
 prepared to execute the precept as soon as the original is re- 
 ceived. Indeed, it is not an uncommon practice for officers 
 to execute telegraphic copies of process. Of course, in so 
 doing, they take the risks of acting before they receive 
 the original, and the practice is liable to abuses. But 
 it is not necessary to justify Mr. Shearman on any such 
 ground. In fact, what he did was to telegraph to his asso- 
 ciate counsel that a writ of assistance had been granted, and 
 that the original was on the way. Upon their request he 
 telegraphed to them a copy of the writ, giving no directions 
 for its use. The sheriff, in fact, did nothing more with the 
 telegraphic copy than to inform the opposite party that he had 
 received it. But when the original came, he prepared to exe- 
 

 39 
 
 cute it. In the mean time, Prnyn, the Albany receiver, 
 commenced a suit in the Supreme Court in Albany County, 
 against the sheriff and his deputies, to restrain them from 
 executing this copy, and from executing the original when it 
 should be received. In the complaint it was expressly alleged 
 that the sheriff had not executed the copy, but it was averred 
 that the original would be furnished to him in a short time, 
 and that he might undertake to execute that. As the 
 ground for restraining the execution of the original, it was 
 averred that no writ of assistance could be lawfully issued 
 before judgment in the action, and therefore that this 
 original, if it had been issued, was “ utterly void.” On this 
 ground, expressly recited in the injunction, the Recorder of 
 the City of Albany, exercising the powers of a judge of the 
 Supreme Court at chambers, signed an order on the 9th of 
 August, which enjoined the sheriff, etc., from executing this 
 writ, copy, or original, or any other writ issued before judg- 
 ment in the action of which it might be entitled. 
 
 The eagerness and celerity evinced in these proceedings 
 suggest an amusing inquiry, why the mistakes of the Albany 
 gentlemen of the profession should not be visited with the 
 reproach that has been so lavishly bestowed upon some of 
 their brethren in this city. Their attitude in regard to the 
 validity and authority of this writ of assistance was clearly 
 wrong, if I read the code rightly, which expressly authorizes 
 a court, whenever it has ordered the delivery of property, 
 and the order is disobeyed, to make an order requiring the 
 sheriff to take the property and deliver it in conformity with 
 the previous order. 1 This provision is contained in the very 
 section in which the courts are authorized to appoint re- 
 ceivers before judgment. And the same power belongs to 
 any court of equity, when it has made an interlocutory order 
 which is resisted. But what would the gentlemen of my 
 profession in Albany think of me, if, because they had made 
 an allegation in a pleading which seems to me to have been 
 untenable in point of law, and had obtained an injunction 
 
 1 Code of Practice, § 244. 
 
40 
 
 according to it, I should charge them with gross professional 
 misconduct ? 
 
 It is time now to state with precision what, if any thing, 
 Mr. David Dudley Field had to do personally with any of 
 these proceedings up to the time at which w~e are now 
 arrived ; not that I propose to separate his vindication from 
 that of his partners or his colleagues, none of whom, in my 
 opinion, need any other vindication than a clear statement 
 of their acts, hut because an exact history of this matter is 
 important. Mr. Field was at his country place in Stock- 
 bridge, Mass., 150 miles away from Hew York, from the 
 30th of July to the 9th of August. He knew nothing 
 whatever about any of these proceedings, and had not been 
 consulted about them. On the 9th, Monday, he was tele- 
 graphed to and requested to go to Albany. He arrived 
 there on the evening of that day, and then for the first 
 time learned the state of things in regard to the two re- 
 ceiverships. He found his partner, Mr. Sterling, acting 
 as attorney, and Judge Amasa J. Parker and Mr. John 
 Ganson acting as counsel for the Hew York receivers, and 
 he immediately joined them. 
 
 On his arrival at Albany, Mr. Field learned that all par- 
 ties on all sides were now effectually restrained, by the in- 
 junctions and counter-injunctions issued, from further prose- 
 cution of the claims of their respective receivers in the courts, 
 and that the Sheriff of Albany County was restrained from 
 executing the writ of assistance which he had received. But 
 he also learned that the Hew York receivers were in actual 
 possession of the Binghamton end of the road, that the Al- 
 bany receiver w T as in actual possession of the Albany end, 
 that the two parties had been for some time approaching 
 each other on the line of the road, and that Judge Barnard’s 
 writs of assistance were in the hands of the sheriffs of some 
 of the counties on the line. It is unnecessary to recount 
 here what had taken place on the line of the road. The 
 danger of collision was imminent, and the population 
 along the road w^ere in some degree involved in the excite- 
 ment. Moreover, in the City of Albany itself, there was 
 
danger that the peace would be broken, for Courter had 
 been forcibly ejected from the office of the company that 
 evening. It would be nearly a week before even the Alba- 
 ny Court, under the order made in the omnibus suit, could 
 adjudicate the title of the rival receivers, or even hear an 
 argument upon it. Mr. Field saw that a step must be 
 taken at once, to secure the intervention of the Governor for 
 the preservation of the peace. Instead of promoting any 
 action under the writ of assistance, which so far as Albany 
 County was concerned was already stayed, and instead of 
 doing or advising any forcible step whatever in assertion of 
 the claims of Fisk and Courter, Mr. Field immediately 
 desired one of the Governor’s clerks to communicate with 
 the Governor who was absent from the City of Albany, and 
 at or near West Point, and request him to intervene for 
 the preservation of the peace. This was done, and Gov- 
 ernor Hoffman reached Albany the next evening, the 
 10th. On the 11th, early in the morning, in the Executive 
 Chamber, the respective receivers, attended by their coun- 
 sel, signed a letter addressed to the Governor, informing 
 him that in consequence of certain judicial proceedings and 
 conflict of jurisdictions, it had become impracticable to run 
 and operate this road, either under the management of its 
 directors, or the control of the persons claiming to be re- 
 ceivers ; and as contending claimants to the possession of 
 the road, they requested the Governor to appoint some suit- 
 able person as superintendent, to operate the road under 
 the Governor’s directions and during his pleasure, or until 
 the necessity should cease ; this appointment and possession 
 not to affect the legal rights or present actual possession of 
 the parties respectively to any part of the road, its offices or 
 property. The Governor was also requested to employ 
 such financial or other agents as he might require, and to 
 fix their compensation. 
 
 Mr. Field informs me that his idea in advising this ar- 
 rangement was, that the Governor should exercise a civil 
 power in taking and holding this temporary possession ; but 
 in consequence of the disturbances and excitements on the 
 
42 
 
 line of tlie road, the Governor deemed it necessary to take a 
 quasi military possession, by appointing a member of his 
 military staff, Colonel Banks, executive financial agent to 
 run and operate the road. Colonel Banks thereupon took 
 charge of the road ; but the books of the company had been 
 previously removed from its office in Albany to some place 
 of secrecy, where Phelps, the Treasurer, had access to them, 
 and continued to make entries in them. This removal took 
 place on the night of August 5th. The books were not re- 
 turned to the office of the company until the night of the 
 6th of September. 
 
 Mr. Field remained in Albany until the evening of the 
 11th of August, when he came down to Hew York, where 
 he stayed until the evening of the 12th, when he returned 
 to Albany. On the 13th he went to West Point, at the 
 request of Governor Hoffman, to confer with the latter 
 on the subject of funds to be supplied to Colonel Banks as 
 financial agent of the road. He met the Governor at West 
 Point on the evening of the 13th, and then went back to 
 Hudson ; and from thence, on the morning of the 14th, he 
 reached his home in Stockbridge, where he remained during 
 the greater part of the month. He was in Hew York only 
 three days and a half during the whole month, viz., the 20th, 
 part of the 21st, the 24th, and the 25th. 
 
 But there was an occurrence on the 14th of August 
 which has formed one of the principal topics in the charges 
 that have been made against Mr. Field. He has been 
 charged with complicity in a fraudulent scheme to wrest 
 from some of the holders of stock of this company, by 
 the abuse of legal process, a large number of shares, with 
 intent to have them used at the election in casting votes 
 for the Church ticket of directors. I do not forget that a 
 judge of the Supreme Court, in Monroe County, sitting 
 at Special Term (Judge E. Darwin Smith), has declared 
 himself satisfied that such a wrongful scheme existed, 
 although he has in no way implicated Mr. Field in a con- 
 scious purpose to promote it. It is proper, however, to say, 
 that an appeal from Judge Smith’s decision in a The People 
 
43 
 
 vs. The Albany & Susquehanna Kailroad Company,” and 
 others, is now pending, which involves all his findings of 
 fact and conclusions of law. For this reason I should re- 
 frain from expressing any opinion on the question whether 
 there was any such fraudulent purpose on the part of any- 
 body in the transaction about to be described, if it had not 
 been charged publicly that Mr. Field consciously promoted 
 that purpose, in such a way as to make it necessary for me 
 to examine and weigh the facts in reference to its probable 
 existence. It has been observed in a somewhat triumphant, 
 and, as it seems to me, hasty manner, and very erroneously, 
 that Mr. Field, in his published explanation of this matter, has 
 “ perverted the truth.” 1 I shall endeavor not to “ pervert the 
 truth,” either of fact or of law ; nor shall I impute any such 
 intentional perversion to others. But I cannot help observ- 
 ing that in this, as in every other inquiry into men’s motives 
 or purposes, a full and correct statement of the facts is essen- 
 tial ; that I have not seen a full and correct statement in 
 any of the publications which have imputed impropriety 
 to Mr. Field, nor do I find it in Judge Smith’s opinion, which 
 has imputed a fraudulent purpose to some of those for whom 
 Mr. Field is said to have acted. I have been obliged, there- 
 fore, to examine all the material facts for myself, and to 
 present to the consideration of the reader what seem to me 
 to be the true aspects of both the legal and the moral ques- 
 tions arising upon this transaction. In this examination I 
 have had before me all the legal proceedings that took 
 place, all the evidence that has been taken under oath in 
 regard to this transaction, together with information not 
 embraced in those sources, but which I have endeavored 
 carefully to verify. I have also attentively perused the 
 opinion of Judge Smith, which, so far as a judicial finding 
 ought to influence one, might be expected to produce a bias 
 toward his conclusions' on the collateral topic of the exist- 
 ence of a wrongful intent to obtain possession of this stock 
 for the purpose of voting upon it at the election. 
 
 But before I enter upon this examination, it is proper to 
 
 1 General Barlow’s letter. 
 
u 
 
 repeat that Mr. Field was not in New York at the time, and 
 that he knew nothing of any purpose to have a receiver- 
 ship of the stock in question obtained. Whatever blame 
 should rest upon any lawyer, rests upon his partner, Mr. 
 Shearman, though none in my opinion belongs to anybody. 
 
 I now come, therefore, to this topic about which there has 
 been a great deal of comment; namely, the Fuller Re- 
 ceivership of the stock claimed by Groesbeck and others. 
 On the 2d of August, Joseph Bush had instituted a suit in 
 the Supreme Court in the County of New York against the 
 company and the directors, in which an injunction had been 
 granted on Saturday, the 31st of July, after business hours, 
 but which was not served until Monday, August 2d. In the 
 complaint, the plaintiff described himself as a stockholder 
 bringing the suit in his own behalf, and in behalf of all the 
 other stockholders, to obtain certain relief. The part of the 
 relief sought which it is necessary to notice here, is the relief 
 which was granted, on the 14th of August, by the appoint- 
 ment of a receiver, and which was obtained by the receiver’s 
 demand and possession of certificates. The complaint alleged 
 that certain of the defendants, Groesbeck and others, held a 
 large amount of the stock of the company, which had been 
 issued to them by Ramsey, the President, as full-paid stock, 
 at some time in 1868-’69 ; that the company had never re- 
 ceived therefor more than 25 per cent, of the par value, and 
 that the issue was therefore unlawful and void. In point 
 of fact, a portion of this stock of which the receiver de- 
 manded and obtained possession of the certificates, and on 
 which he afterward voted at the election of directors (3,000 
 shares), was forfeited stock belonging to the company, but 
 which had been reissued to the parties who held it at the 
 time this suit was brought by Bush. Among other pray- 
 ers, the complaint prayed that the issue of this stock be 
 declared unauthorized and void, and set aside, and that 
 the stock be given up to be cancelled, and for a receiver. 
 On the 14th of August, at a Special Term, Judge Barnard 
 granted a provisional order, appointing W. J. A. Fuller 
 receiver of 3,000 shares of the stock thus held by the sev- 
 
45 
 
 eral defendants, and authorizing him to take immediate 
 possession thereof, and directing the present holders of 
 these shares to show cause before him, at a Special Term 
 to be held in the City of New York on the 19tli of August, 
 why this order should not stand and such further order be 
 made in the premises as might be just, and in the mean 
 time that all proceedings on the part of the defendants be 
 stayed. 1 
 
 Was this an order proper to be made ? There are two 
 provisions of the Code of Practice which are applicable to 
 this order. By § 244, subdivision 1, “ a receiver may be ap- 
 pointed, on the application of either party, when he estab- 
 lishes an apparent right to property which is the subject of 
 the action, and which is in the possession of the adverse 
 party, and the property, or its rents and profits, are in dan- 
 ger of being lost, or materially injured or impaired.” I take 
 it to be clear that this provision is not confined to cases where 
 a legal title to property is established or shown. The term 
 “ apparent right to property ” must be held to include all 
 equitable interests as well as legal titles. The “ property,” 
 in this case, consisted of the legal title and all the equitable 
 interests in certain shares of the capital stock of a corpora- 
 tion. The plaintiff, acting for himself as a stockholder and 
 for all the other stockholders, “ established,” by his sworn 
 complaint, an “ apparent right ” of the corporation to three- 
 quarters of this u property,” by showing that the holders 
 of the shares to whom they had been issued had not paid to 
 the corporation more than 25 per cent, of the par value, and 
 that, without payment in full of the par value, the corpora- 
 tion was entitled to have the stock delivered up and can- 
 celled, as an illegal and void issue. Now the question 
 whether the certificates were void, or whether the issue was 
 void , would be for trial after an answer ; and the judgment 
 
 1 For their appearance, see pod. It has been stated that Mr. Fuller was an 
 ex-clerk of Mr. Field’s. He left Mr. Field’s office twelve years before this oc- 
 currence, and has been largely engaged in praetice since as a well-known mem- 
 ber of the bar. I am informed that during twelve years he had had no business 
 connection with Mr. Field’s office. 
 
46 
 
 to be rendered would be, whether the certificates should be 
 given up to be cancelled, and on what terms, or be retained 
 by the defendants, and on what terms. But before judg- 
 ment on this question, it was clear, if the allegations of the 
 complaint were believed by the judge, that the corporation 
 or whole body of the stockholders, who in contemplation of 
 law were the plaintiffs, had an “ apparent right ” in these 
 shares, namely, an equitable title to receive three-fourths 
 of their par value, if the final judgment should leave them 
 in the hands of the defendants. The question whether the 
 issue of this stock should finally be declared unlawful and 
 void, should not be confounded with the question whether 
 the plaintiff Bush had established for himself and the other 
 stockholders an “ apparent right ” in these shares. The 
 first w^as a question to be determined on the final judgment 
 in the suit. The last was a fact to be shown before judg- 
 ment, as a foundation for the provisional remedy of a re- 
 ceiver. That it was shown, appears to me not to admit of 
 any doubt. The next inquiry is, whether this “ apparent 
 right ” of the stockholders in this property was in such 
 danger of being lost or materially injured or impaired as to 
 make the appointment of a receiver necessary to protect it. 
 For, I take it to be the clear meaning of the Code, that a 
 receiver is to be appointed, when the party asking for a re- 
 ceiver has shown that his interest in the property is in 
 danger of being lost, or materially injured or impaired, un- 
 less a receiver is appointed. The interest of the whole body 
 of stockholders in this case, to be regarded before final 
 judgment, was the right of the corporation to receive three- 
 fourths of the par value of the stock. It was manifest on 
 the face of the facts averred in the complaint, that this 
 stock could be transferred by the defendants to parties who. 
 would become dona fide holders of it for value, and who 
 might take it purged of any infirmity in its title ; so that 
 while the corporation might have, as against the present 
 holders, a right to demand their 75 percent, on the stock, 
 they could not have that right against a dona fide purchaser 
 for value, who might have taken it without notice that its 
 
47 
 
 original issue was unlawful. 1 If it is said that the simple 
 injunction already issued not to transfer the stock would 
 have protected the corporation, or the whole body of stock- 
 holders, the answer is, that the Code manifestly intended 
 that in such a case there should be another protection by 
 the appointment of a receiver. A simple injunction not to 
 part with the stock could be disobeyed ; if it was placed 
 in the hands of a receiver, the corporation would be fully 
 protected in the “ apparent right ” which it was the purpose 
 of the Code to protect, by the provisional remedy of a re- 
 ceiver before judgment on the main issue in the case. 
 
 The other provision in the Code is subdivision 5 of § 244, 
 which declares that a receiver may be appointed before judg- 
 ment, “ in such other cases as are now provided by law, or 
 may be in accordance with the existing practice, except as 
 otherwise provided in this act.” Assuming, for the purpose 
 of argument only, that the case now under consideration did 
 not fall within subd. 1, of § 244, can there be any doubt that 
 under the Chancery practice existing when the Code took 
 effect the appointment of a receiver in this case would have 
 been proper % That practice required that a receiver should 
 be prayed for in the bill. This was done in this complaint. 
 The existing practice allowed of a receiver, without notice 
 to the opposite party, under peculiar circumstances demand- 
 ing immediate action, to be made to appear upon the papers 
 on which the application was made. The peculiar circum- 
 stances demanding immediate action in this case were, that 
 without a receiver the interest of the corporation in this 
 stock could be destroyed by those who held it, before judg- 
 ment could be had ; and this was apparent on the facts 
 averred in the complaint. By the former practice, the re* 
 ceiver was appointed for the protection of property jpendente 
 lite , and the order did not assume to make a final disposi- 
 tion of the property without a hearing of the parties. This 
 was exactly what w^s done, and all that was done, by Judge 
 Barnard’s order appointing this receiver. By the former 
 
 1 New York and New Haven R. R. Co. v. Schuyler and others. 34 New 
 York, 39. 
 
48 
 
 practice, on a motion for a receiver the merits were not in- 
 quired into ; the motion related only to the preservation of 
 the property. So in this case, every thing in relation to the 
 merits was reserved by the terms of the order, and what 
 was done was to protect the plaintiff’s interest in the prop- 
 erty pendente lite. 1 
 
 Mr. Shearman, who acted as the plaintiff’s attorney in 
 this application for a receiver, informs me that he relied on 
 the two provisions of the Code on which I have commented 
 above. I think that either of them authorized the appoint- 
 ment of a receiver ; and that the question whether the issue 
 of the stock was unlawful and void, which constituted the 
 chief merits of the action, had nothing to do with the ques- 
 tion whether the plaintiff had established an apparent right 
 in the property, as it then stood, to be protected by a receiv- 
 er pendente lite. The issue of the stock might have been 
 unlawful and void ; but until that was determined, the cor- 
 poration, or whole body of stockholders, had an interest in 
 it, and the final judgment might be that defendants keep 
 the stock and pay 75 per cent, on it to the company, or that 
 it be surrendered to the company on their paying the hold- 
 ers 25 per cent., or whatever the company had already re- 
 ceived. 
 
 It is now to be considered whether the main allegations 
 of this complaint respecting the apparent interest of the 
 company in this stock, by reason of its having been reissued 
 for a payment of not more than 25 per cent, of its par value, 
 were duly verified for the support of the order that was 
 made? That the plaintiff was himself a stockholder was 
 averred positively in the complaint, and his jurat made this 
 .averment to be on his own knowledge. The other main al- 
 legations were averred on information and belief, and the 
 jurat was made in the proper form, necessary to show that 
 the plaintiff had sworn to his information and belief of the 
 facts so stated. Whether it was judicially proper for the 
 judge to regard these statements, so verified, as ground for 
 
 1 See the authorities on the existing practice collected in Note A, on section 
 244 of the Code, Yoorhis’s edition. 
 
49 
 
 the provisional remedy of a receivership, depends upon the 
 principles and authorities to which I have referred in a pre- 
 vious discussion, and which need not be repeated here. It 
 is to be remembered that this order appointing a receiver 
 of the contested stock reserved to the defendants an oppor- 
 tunity to show cause against it on the 19th of August ; that 
 the possession obtained by the receiver was therefore pro- 
 visional until after the expiration of that time, and that when 
 that day had expired without any cause being shown why 
 the order should not stand, the possession of the receiver be- 
 came confirmed by operation of law, pendente lite , and until 
 final judgment upon an answer. 
 
 Now, undoubtedly, if we assume that there was a con- 
 spiracy to get possession of this stock wrongfully for the 
 purpose of voting upon it in the interest of the conspirators, 
 and if we assume further that the attorneys who procured 
 this order, and the receiver himself, were parties to or cog- 
 nizant of that conspiracy, it is very easy to censure them. 
 Whether those assumptions ought to be made depends upon 
 the force of the evidence which is relied upon to show a pur- 
 pose to obtain a wrongful possession of the stock, in order 
 to vote jipon it at the coming election. That evidence re- 
 lates to acts and occurrences three weeks subsequent to the 
 appointment of the receiver, with the single exception of 
 what he is said to have done at the time he obtained some 
 of the certificates from Groesbeck. It is said that he threat- 
 ened Groesbeck with a writ of assistance if he did not deliver 
 the certificates. This might have been done by any receiver 
 making a demand for property of which a court had ordered 
 him to take immediate possession, without any improper 
 purpose, if any thing occurred which seemed to him to render 
 it necessary to refer to the ultimate process of the law. The 
 true question to ask, in reference to this matter, is, had such 
 a thing occurred ? Mr. Fuller has testified under oath that 
 when he went to demand the stock of Groesbeck he took a 
 deputy-sheriff with him ; that he thinks he did not say that 
 he had a writ of assistance, but that he told Groesbeck that 
 if he refused to deliver the stock he would have him pun- 
 4 
 
50 
 
 ished for a contempt. Had any thing occurred to render 
 this necessary or natural ? It appears from Mr. Fuller’s tes- 
 timony that Groesbeck hesitated about delivering the stock, 
 for he testified that Groesbeck placed the scrip in his (Ful- 
 ler’s) hands three times, on a pledge that he (Fuller) would 
 return it. This, which must have occurred, if Mr. Fuller is 
 to be believed, before Groesbeck finally gave up the scrip, is 
 sufficient evidence that all the threat which Mr. F uller used 
 was deemed by him to be necessary ; and considering that 
 Mr. Fuller was a lawyer who could inform Mr. Groesbeck 
 of the consequences of refusal, and that Mr. Groesbeck'’ s 
 counsel was present , this occurrence does not seem of itself 
 to indicate any improper purpose on his part. Whether 
 Mr. Fuller’s subsequent act of voting on the stock has any 
 tendency to show that the suit in which he was appointed 
 receiver was instituted for a wrongful purpose, I shall con- 
 sider hereafter. All that I am to be understood as saying 
 now is, that on the face of the suit itself, the complaint and 
 its verification and the nature of the claim asserted on be- 
 half of all the stockholders of the company to have this stock 
 secured in the hands of a receiver, I can see no evidence of 
 any improper purpose, or complicity in an improper pprpose, 
 on the part of the plaintiff’s attorneys. What was done was 
 exactly what would have been by any lawyer with the most 
 honest and upright purpose of enforcing a legal right ; and 
 I suppose it can scarcely be necessary for me to say, that 
 the presumption of a rightful purpose on the part of the 
 attorneys and counsel ought to be carried through this whole 
 investigation, until something arises to control and overthrow 
 if. JSTo amount of popular prejudice or opinion that may 
 exist concerning some of the clients for whom they are sup- 
 posed to have acted, ought to be regarded for one moment 
 as depriving these members of the bar, in the judgment of 
 their fellows or the public, of the benefit of that presump- 
 tion. If we assume that the supposed character of a client 
 is to be regarded as proof that what a lawyer does in his 
 behalf was done with a wrongful intent, when the profes- 
 sional acts done were consistent with a rightful intent, the 
 
51 
 
 capacity of the bar to fulfil its appropriate functions is at an 
 end, and men who are reputed to be bad will be found to 
 have no rights which any lawyer can enforce or defend. 
 
 It is now necessary to describe the material facts attend- 
 ing the organization of the stockholders’ meeting on the 7th 
 of September, and the results of the election, which ended 
 in the choice of two Boards of Directors. I shall express no 
 opinion upon the question as to which of those two boards 
 was entitled to be considered as the lawfully-elected board, or 
 whether there was any valid election at all, because these ques- 
 tions are still sub judice, in the appeal that has been taken 
 to the General Term from Judge Smith’s decision in the 
 case of The People v. The Albany & Susquehanna Rail- 
 road, and because that case may possibly be carried to the 
 Court of Appeals. But in respect to all the charges that 
 have been made against Mr. Field in public prints, of com- 
 plicity in a scheme to carry that election by fraud or vio- 
 lence, I deem myself at liberty to describe what occurred. 
 
 A very thorough judicial investigation has shown that 
 the relative strength of the two parties among the stock- 
 
 holders, when they assembled, was as follows : 
 
 Shares. 
 
 Whole number of shares then out, including the 
 
 stock disputed and undisputed 29,738 
 
 Deduct Groesbeck’s stock held by .the receiver. . . 3,000 
 Deduct stock claimed to have been subscribed for 
 by Ramsey and others, August 5th 9,500 12,500 
 
 Leaving of undisputed stock 17,238 
 
 The Church party held in certificates of clear undis- 
 puted stock, and proxies, not including the 
 stock held by the receiver, and certain other 
 
 parcels 9,964 
 
 Assuming that the Ramsey party held the bal- 
 ance of the undisputed stock, which is not 
 probable as to the whole of it, viz 7,274 
 
 Minority of the Ramsey party on undis- 
 puted stock 2,690 
 
 These figures show that without voting on some part or 
 the whole of the 9,500 shares of Ramsey disputed stock, 
 
52 
 
 that party could not cany the election, whether the receiver 
 voted or not on the 3,000 shares of Groesbeck stock. As 
 the Groesbeck stock held by the receiver was supposed by 
 the Church party to be neutralized, and not likely to bo 
 voted upon, 1 they knew that they could elect their ticket 
 without the aid of the Fuller stock, unless the 9,500 shares 
 of Ramsey disputed stock should be voted on and counted. 
 
 It became therefore important to the Church party to 
 have the election presided over by inspectors who would 
 properly discharge their duties, and on whose firmness they 
 could rely. The inspectors who had been chosen in the 
 previous year (1868) to act at this election of' 1869, Hand, 
 Lathrop, and Haskell, were not stockholders, as the by- 
 laws required them to be. For this reason they were en- 
 joined from acting by an injunction granted by Judge 
 Clerke, of the Supreme Court in Hew York, at the suit of 
 Stanton Courter, a stockholder, which injunction was served 
 on them on the morning of the 7th, before the hour fixed 
 for the election. Whether their displacement from office and 
 the subsequent choice of other inspectors in their place 
 were valid or not, in reference to the election of direct- 
 ors, I express no opinion, for reasons already given. But 
 the question of a fraudulent intent on the part of those who 
 obtained and served the injunction forbidding them to act, 
 is involved in the charges that have been made in the public 
 prints. The reader is now in a situation to judge of this 
 charge, because he can see that the Ramsey party, holding a 
 minority of the undisputed stock, held 9,500 shares of stock on 
 which only ten per cent, had been paid, and which had been 
 clearly issued in order to make votes at the election. If the 
 legal advisers of the Church party saw a legal disqualifica- 
 tion of those inspectors to act, they could advise their clients 
 to have them enjoined, without any unfair purpose of any 
 kind ; and their purpose must be judged by the situation of 
 the two parties to this contest, and by the steps that were 
 taken to supply the places of the inspectors whom they 
 caused to be removed. After having read and weighed all 
 
 1 For reasons stated post 
 
53 
 
 that has been said on this subject, and after a careful exam- 
 ination of the evidence that has been taken upon it, I do 
 not see any ground for imputing any wrongful purpose to 
 those who advised this injunction. It appears to have been 
 signed in Hew York by Judge Clerke on the 6th, and like 
 other processes used by both parties, and granted on that 
 day, it could not be served in Albany sooner than the morn- 
 ing of the 7th. The charge that it was kept back until that 
 morning, is far more applicable to the Groesbeck injunction, 
 which was obtained in Albany, but was not served until 
 the Harris poll was opened at twelve o’clock ; whereas 
 the Courter injunction, removing the old inspectors, was 
 served at twenty minutes past eleven o’clock. I cannot 
 see that the latter operated as a surprise upon the Ramsey 
 party, and prevented them from assembling promptly, be- 
 cause, as will hereafter appear, the Ramsey actual stock- 
 holders were all present in person or by proxy before twelve 
 o’clock, and because they came attended by a large number 
 of persons who were not stockholders, and who are proved 
 to have actually voted viva voce , when the meeting was first 
 called to order, either with or without proxies. 1 In like 
 manner the Church actual stockholders were present in per- 
 son or by proxy before twelve o’clock, and they came at- 
 tended by persons who were not stockholders, but each of 
 whom held a proxy before he entered the building. 
 
 On the evening of the 6th, in preparation for the meet- 
 ing, the Church party had certain resolutions drawn, to be 
 introduced at the meeting, reciting the removal of the old 
 inspectors, and providing for the immediate choice of new 
 ones. This step has been considered one of the proofs of a 
 scheme for carrying the election by surprise and fraud, be- 
 cause, as has been said, it presupposed the. service of the 
 
 1 Mr. Ramsey was aware of the purpose of the Church party to enjoin the 
 old inspectors as early as ten o’clock on that morning, and then conversed with 
 his counsel on the necessity for having a stockholders’ meeting to appoint new 
 inspectors, in case the old ones should be enjoined. See his testimony, pages 
 202, 203, folios 909, 910, in the case of the People vs. the Albany & Susque- 
 hanna Railroad Company. 
 
54 
 
 injunction at tlie proper time to effect a surprise. It seems 
 to me to have been a natural step, on the part of those who 
 knew that the injunction would be served on the next day 
 before twelve o’clock, to make preparation for supplying 
 the expected vacancies in a regular and orderly manner, so 
 that proper minutes of the new appointment could be pre- 
 served, if a trial of its legality should afterward become 
 necessary ; and as I cannot see any proofs that any stock- 
 holder in the Ramsey interest was kept away by the suppo- 
 sition that the old inspectors were to act, I do not see any 
 reason for imputing to the Church party a fraudulent intent, 
 because they prepared resolutions in advance for the purpose 
 of giving all the legal certainty they could give to the new 
 appointment. 
 
 On the same evening, the 6th, it became apparent, in- 
 asmuch as a new appointment of inspectors would become 
 necessary, that, at the preliminary organization of the meet- 
 ing, votes would have to be taken without a stock-list, viva 
 voce , and to be decided according to the numbers of persons 
 present and voting on each side. All the stock held by the 
 Church party was kftown to them, and was held in certifi- 
 cates or proxies. The same was the case with the Ramsey 
 party. If, in a viva voce vote taken in the preliminary or- 
 ganization, persons should vote on either side without being 
 holders of either certificates or proxies, the other side would 
 be outnumbered by mere intruders. To prevent this effect 
 on the Church stockholders, the Church party were advised 
 that proxies should be given to a sufficient number of per- 
 sons to make the proportions of numbers correspond to the 
 proportions of stock on the two sides, and they were par- 
 ticularly cautioned against giving a proxy to any but a per- 
 fectly unexceptionable person. It has been said that the 
 men whom Mr. Fisk brought there were “ roughs,” which 
 I understand to mean, in common parlance, fighting-men, 
 whose vocation it is to put their physical force at the dis- 
 posal of any man who wants such services ; that they were 
 brought there to overawe the meeting, and that by their 
 presence they excluded a large portion of the stockholders 
 
55 
 
 from access to tlie room, and precluded them from an open, 
 free, and fair participation in the proceedings. The num- 
 bers of these persons will he stated hereafter. At present, 
 it seems proper to say that I think the fair result of the 
 sworn testimony is, that some of them were conductors and 
 other agents of the Erie Railway, and that some of them 
 were laboring-men in the employment of that company ; 
 that although some of them did not wear good coats, and 
 some were in their shirt-sleeves (it was very hot weather), 
 none of them were men who could be justly classed as 
 “ roughs,” if I understand rightly the meaning of that term ; 
 that their conduct in the room was decent and orderly, and 
 that no stockholder, and no person representing a stock- 
 holder, was excluded by their presence or prevented from a 
 full, free, and open participation in the proceedings. The 
 instructions were to have each of the persons furnished with 
 a genuine proxy before he should enter the building ; the 
 proxies were distributed to them on each block of the 
 stock represented, so that no one of them, in giving a .viva 
 voce vote, would represent less or more than the stock owned 
 by the person whom he represented ; and I am informed 
 that these instructions were fully carried out. 
 
 The rooms in which the meeting took place were on the 
 second floor of the building, the hall being in the centre, 
 and the rooms being on three sides of the hall. The rooms 
 on that floor were respectively the Superintendent’s Room, 
 the Library, the Directors’ Room, the President’s Room, 
 and the Treasurer’s Room. Commencino; in the southwest 
 corner (the Superintendent’s Room) and passing round, the 
 different rooms were connected together, in the order above 
 named, by doors, and each had a door opening into the hall. 
 The President’s Room was between the Directors’ Room 
 and the Treasurer’s Room. In these three last-mentioned 
 rooms, and the hall, all the business of both meetings was 
 transacted. The persons who came to take part in the elec- 
 tion, or to be present at it, first assembled in the Directors’ 
 Room. I have found no difficulty in ascertaining from the 
 evidence, with approximate certainty, the numbers of per- 
 
56 
 
 sons present in this room at fifteen minutes before twelve, 
 when the first meeting was called to order, and a Chairman 
 and Secretary were chosen, and I think the evidence shows 
 of which party these persons were adherents. The room 
 w T as capable of holding from one hundred and three tq one 
 hundred and fifty persons ; I assume the largest number as 
 the capacity of the room. 1 Of the Church party there were 
 present Leonard, Chase, Wilber, C. Courter, North, Everts, 
 Fisk, Church, Stanton Courter, Harris, Bush, and Oli- 
 ver, holding among them certificates or proxies for 9,964 
 undisputed shares. Besides these twelve persons, there 
 w r ere present as counsel Messrs. Field, Parker, Shearman, 
 and Bedfield, advisers of the Church party. 
 
 Of the Bamsey party there were present Ramsey, Hen- 
 drick, Rice, Perry, Dawson, Blackall, McCormick, Clark, 
 Harder, and Westover, holding among them certificates or 
 proxies for 7,274 shares of undisputed stock and 9,500 shares 
 of the Ramsey disputed stock. Besides these ten persons, 
 there were present on their side as counsel, Messrs. W. F. 
 Allen, Porter, Yanderpoel, Charles Tracy, Hand, Smith, 
 Peckham, Jr., Hale, MacFarland, Moak, and Swartz. Mr. 
 Fuller, the receiver of the 3,000 shares of Groesbeck stock, 
 and Mr. Groesbeck, claimant of that stock, were also 
 present. 
 
 Including Fuller and Groesbeck, the whole number of 
 persons present, whose names Tvere afterward proved, was 
 40 ; 17 being, on the Church side and 21 being on the Ram- 
 sey, if we exclude from either side Fuller and Groesbeck. 
 
 1 Mr. Herrick, the Vice-President, computed the superficial area of the room 
 at three hundred and nine square feet. Allow three square feet to a person, 
 this would give a capacity of one hundred and three persons ; but Van Valken- 
 burg, the Superintendent, estimated the capacity of the room to be from one 
 hundred and twenty-five to one hundred and fifty persons. I therefore assume 
 the larger number. The door of the library, which could hold forty-four per- 
 sons, was open, and, if there was any crowding, the crowd could overflow into 
 that room. Colonel Banks, the Governor’s agent, then managing the road, gave 
 special directions and notice that the stockholders were to assemble in the Di- 
 rectors’ Room, and that the voting for directors should take place in the Treas- 
 urer’s Room. At the suggestion of Mr. Field, a strong body of the Albany po- 
 lice were present to preserve order. 
 
57 
 
 It has been asserted that the Church party also brought 
 in from 50 to 60 unknown men. If we assume that they 
 brought 55, there would be only 72 persons present in the 
 Church interest, which would leave space for 122 on the 
 Ramsey side, supposing that both the Directors’ Room and 
 the library were filled. But the evidence does not warrant 
 the belief that the Church party had more than 25 to 30 
 persons present beyond those named. Assuming the lar- 
 gest number which the evidence shows, there were 47 in all 
 present on the Church side, and all holding proxies or cer- 
 tificates. If, then, there was a crowded state of the room, 
 occasioned by the presence of a large number of persons not 
 being either stockholders or holders of proxies, that crowd 
 was not caused by the Church party, and was not there in 
 their interest. If we assume that the crowd filled both 
 rooms to their greatest capacity, then there were present 
 about 124 unnamed persons not in the interest of the Church 
 party. If we assume that only the Directors’ Room was fully 
 occupied, there were present about 80 unnamed persons not 
 in the interest of the Church party. 
 
 These results, which I find on examination of the evi- 
 dence, have satisfied me — 1st. That no stockholder was ex- 
 cluded from the room by reason of its preoccupation by the 
 Church party with persons who had no right to be there, or 
 by a crowd occasioned by the Church party ; 2d. That the 
 crowded state of the room, if it was crowded, must have 
 been produced far more by the presence of men brought 
 there in the Ramsey interest. I think, also, that the evi- 
 dence clearly shows that the unnamed persons who attended 
 * in the Church interest occupied the eastern end of the room, 
 and that the unnamed persons who attended in the Ramsey 
 interest occupied the western end ; that, so far as there was 
 any disorder or improper language of any kind, it was in 
 the western end of the room ; that the unnamed persons 
 who stood at that end were mostly working-men, employes 
 of the Albany & Susquehanna Railroad, with a sprinkling 
 among them of men of Albany of the lowest class, some of 
 whom were recognized ; and that there were men in the 
 
58 
 
 hall armed with clubs, who were known to be in the em- 
 ployment of the road. Outside of the building stood a large 
 crowd of similar persons from the neighborhood, who were 
 certainly not brought there by any sympathy with the 
 Church party. 
 
 There is another test that may be applied by figures to 
 ascertain the relative numerical strength or physical force 
 of the two parties. At both polls, 74 persons voted, 35 at 
 the Harris poll, 39 at the other poll ; 60 ballots were cast 
 for the Church ticket, 190 for the Ramsey ticket. So that 
 when the voting took place, the numbers of persons voting 
 on the Ramsey side, not in their own right but under prox- 
 ies, must have greatly exceeded those so voting on the 
 Church side at the Harris poll. 
 
 To return to the time at which the assembly in the Di- 
 rectors’ Room were first called to order. This was at 10 or 
 15 minutes before 12 ; at that time Colonel North called the 
 meeting to order as a stockholders’ meeting, nominated Mr. 
 Church as Chairman, and he was elected by a viva voce vote, 
 without any negatives. In like manner, Mr. Herrick was 
 chosen Secretary. Colonel North then moved resolutions, 
 the first of them declaring the offices of inspectors vacant. 
 "When the vote on this resolution was taken, there was a 
 heavy negative vote given at the western end of the room ; 
 but the resolution was declared to be carried. A resolution 
 was then moved, appointing Mr. Harris, Mr. Rush, and Mr. 
 Oliver inspectors, and was declared to be carried by the 
 ayes. Harris, Rush, and Oliver, then proceeded through the 
 President’s Room to the door of the Treasurer’s Room which 
 was closed. It was opened by a policeman ; who, on an « 
 explanation that they came to open a poll as inspectors, was 
 directed by Mr. Ranks or Mr. McQuade (agents of Governor 
 Hoffman in the management of the road) to admit them. 
 They proceeded to make preparations to open the poll. 
 They were followed into the room by several of the gentle- 
 men in the Ramsey interest, including some of the counsel 
 on that side, Mr. Groesbeck and Mr. Ramsey himself. 
 Either at four minutes before 12, or precisely at 12 watches 
 
59 
 
 differed), tlie Groesbeck injunction was served on them. 1 A 
 copy of it was banded by Mr. Harris to Mr. Shearman. 
 Mr. Shearman went back into the Directors’ Hoorn, found 
 Mr. Fuller, explained to him that this injunction had been 
 served, and told him that he had better vote. 2 Mr. F uller 
 came into the Directors’ Hoorn, and approached the polling- 
 place, just after Mr. Harris had proclaimed that as inspectors 
 appointed at a stockholders’ meeting in the Directors’ Hoorn, 
 he and Bush and Oliver now formally opened a poll for the 
 choice of directors. Mr. Fuller then took out the papers 
 showing his appointment as receiver of the Groesbeck stock 
 and the certificates which he held, and handed them to Mr. 
 Harris. At this moment Judge Allen came up to the poll- 
 ing place, and protested against proceeding with the election , 
 because the hour of 12 had not arrived , pointing to the 
 clock in the room. The clock in the room showed two min- 
 utes before 12; Mr. Harris’s watch showed two minutes 
 after 12. Mr. Harris then told Judge Allen that the inspect- 
 ors would not receive any ballots until the hands of the 
 clock indicated 12 precisely. 3 The remaining two minutes 
 were occupied by Mr. Harris in examining Mr. Fuller’s 
 papers. When the hand of the clock had arrived at 12 pre- 
 cisely, Mr. Harris received Mr. Fuller’s votes on the 3,000 
 shares held by him, and then proceeded to vote himself on 
 9,000 shares for which he held proxies. After this the vot- 
 ing at the Harris poll went on briskly, until about 15 min- 
 utes past 12, when Mr. Yanderpoel, one of the counsel in the 
 Hamsey interest, came up to the desk, and read aloud an 
 injunction, issued from the Supreme Court by the Albany 
 County Judge on that day, on the complaint of Minard Har- 
 der, forbidding Hand, Lathrop, and Haskell, inspectors of 
 election, and u John Doe, Hichard Hoe, and James Jack- 
 
 1 For an account of this injunction, see post. 
 
 2 For a precise account of what Mr. Shearman said to the receiver, see post. 
 
 2 The clock was said to have been regulated by the time at the Albany Ob- 
 servatory ; but as I am not considering the question whether these proceedings 
 were strictly regular, I attach no importance to the precise moment of these 
 various occurrences. The order in which they occurred, and what occurred, 
 are alone material here. 
 
60 
 
 son,” or any other persons, that might be appointed inspect- 
 ors, from holding any election of directors or receiving any 
 votes that might he cast at any attempted election. Mr. 
 Vanderpoel explained that Mr. Harris was the “ John Hoe ” 
 of this injunction, Mr. Bush was the “ Bichard Boe,” and 
 Mr. Oliver was the “ James Jackson.” Thereupon voting 
 at the Harris poll ceased for the space of 10 or 15 minutes. 
 
 In the mean time another stockholders’ meeting had been 
 organized in the Bamsey interest in the hall. Mr. Smith, 
 who called this meeting to order, has made an affidavit that 
 he did so at precisely 12 o’clock; and it is also in evidence 
 that he said at the time, in the hall : “ The hour for which 
 this meeting was called having arrived, I now call this meet- 
 ing to order.” 
 
 At this meeting Messrs. Snow, Eddy, and Harder, were 
 appointed inspectors of the election. They proceeded into 
 the Treasurer’s Boom, passed inside the railing within 
 which the other inspectors, Harris, Bush, and Oliver, were 
 holding a poll, and at 23 minutes past 12, announced 
 that they then opened a poll for the choice of directors of 
 the Albany & Susquehanna Bailroad. It does not appear, 
 from any thing that I have seen, whether these gentlemen 
 did or did not regard themselves as the John Doe, Bichard 
 Boe, and James Jackson, of Judge Clute’s injunction, which 
 had forbidden any persons that might be appointed inspect- 
 ors from acting as such until the further order of the court, 
 although one of them, Harder, was the injunction plaintiff. 
 They proceeded to receive votes, and voting then went on at 
 both polls with the following result : 
 
 At the Harris poll, the Church ticket received 18,400 votes. 
 
 At the Snow poll, the Bamsey ticket received 10,742 votes. 
 
 Two other injunctions need to be mentioned, which had 
 relation to the 9,500 shares of stock that had been issued by 
 Mr. Bamsey on the 5th of August, and on which votes were 
 cast at the Snow poll. By an injunction issued by J udge 
 Barnard, at the instance of Jay Gould, on the 3d of Sep- 
 tember, upon a complaint, sufficiently verified for this pur- 
 
61 
 
 pose, the holders of those 9,500 shares were prohibited from 
 voting upon them at the election of directors. Judge 
 Clerke had also granted an injunction in Courter’s suit 
 making the same prohibition. By a counter-injunction 
 issued by Judge Clute, the Albany County judge, on the 
 6th of September, at the instance of John Eddy, on a 
 complaint not sufficiently verified for this purpose, the in- 
 spectors were prohibited from receiving any votes from the 
 whole Church party of stockholders, unless the holders of 
 those 9,500 shares should first have had an opportunity to 
 vote upon them. 
 
 There were also three suits instituted in the Ramsey in- 
 terest, having relation to the votes expected to be given for 
 the Church side on the town stock of the towns of Oneonta, 
 Milford, Maryland, Cobleskill, and Unadilla, in which in- 
 junctions were obtained to prevent the stock of these towns 
 from being voted on. There was also another suit, being 
 the sixth injunction served at the election in the Ramsey 
 interest, to prevent any election. 
 
 No other facts attending the election need to be men- 
 tioned here, excepting those relating to Mr. Fuller’s voting 
 on the Grroesbeck stock, and the arrest of Ramsey, Phelps, 
 and Smith, which I have reserved for special consideration. 
 
 It will be remembered that on the 7 th of August Judse 
 Peckham had granted an injunction which effectually re- 
 strained all the Church directors, Fisk and Court er, claim- 
 ants of a receivership, and all other parties in the same in- 
 terest, from taking any steps or doing any acts in relation 
 to the affairs of this corporation, excepting in the suit in 
 which the injunction was granted, which was pending in 
 the Supreme Court in Albany County, and which has been 
 called the omnibus suit. When this injunction was issued, 
 the books of the corporation had been clandestinely removed 
 from its office in Albany, and the Church directors, a ma- 
 jority of the whole board, were, by the effect of the injunc- 
 tion, absolutely inhibited from taking any legal measures to 
 reach them. The impropriety of this state of things was so 
 manifest that, on the 31st of August, Judge Ilogeboom, 
 
62 
 
 on a motion argued by Mr. Field and Judge Amasa J. 
 Parker for the defendants, modified Judge Peckham’s 
 injunction so far as to allow the injunction defendants 
 to institute a suit to compel the production of the books 
 and their restoration to the office of the company. With- 
 out them, the Church directors and the stockholders, who 
 concurred in their views and measures, could have no 
 means of knowing what stock had been issued, and no 
 means of protecting themselves against votes on stock 
 that might have been wrongfully issued, or against votes 
 cast by unauthorized persons. They appear to have been 
 in the position of parties who had to carry on a defensive 
 contest against adversaries who had every means in their 
 hands for active aggression, by the creation of votes which 
 would be of doubtful legality or of clear illegality. But 
 when Judge Peckham’s injunction had been modified, the 
 Church directors were free to protect themselves, so far as 
 they could do so by obtaining access to the books. They 
 endeavored to trace them, and did trace them to the house 
 of Mr. Henry Smith, where they remained for several days, 
 and then were taken away. They supposed at one time that 
 they had been removed to Pittsfield in Massachusetts, and, 
 following there the clew which they had discovered, their 
 agents endeavored to reach the books by a writ of replevin, 
 but without any success. Baffled in all directions in this 
 search, the Executive Committee had to consider whether 
 there was any legal proceeding which they could institute 
 against the persons who were believed to have the books 
 under their control, that would compel their production or 
 restoration to the office of the company. The election was 
 now less than a week distant. The person who went to 
 Pittsfield in pursuit of the books, and who found evidence 
 that they then were or had been there, and that they had 
 probably been brought there by Van Valkenburgh, the Su- 
 perintendent, for Pruyn, who had left the State, returned to 
 Albany on the 2d ofr September. Further fruitless search 
 was made in Albany, which consumed a part of the time 
 remaining between that date and the day of the election. 
 It appears to me that great diligence was used, and that it 
 
63 
 
 was not until tlie 6th of September that any legal proceed- 
 ings could be taken. On that day, by authority of the 
 Executive Committee of the directors, and of Herrick the 
 Vice-President, 1 a suit was commenced in the Supreme 
 Court in Hew York, in the name of the corporation, against 
 Ramsey, Phelps, Pruyn, and Smith (the latter being one of the 
 counsel of Pruyn the Albany receiver), charging them with 
 the abstraction and concealment of the books, and with- 
 holding them from the inspection of stockholders, and lay- 
 ing the damages at $50,000. This action was commenced 
 under § 179 of the Code of Procedure, which authorizes a 
 personal arrest in such cases. On the same day Judge Bar- 
 nard granted an order authorizing the arrest of the several 
 defendants, and requiring the Sheriff of Albany County to 
 hold each of them to bail in the sum of $25,000. This or- 
 der of arrest was placed in the hands of the Sheriff of Al- 
 bany on the morning of the Jth of September. On the 
 night of the 6th the books were secretly returned to the 
 office of the company, being drawn up in a basket to a win- 
 dow in the rear of the building by Phelps and Mr. Ramsey’s 
 son. But their return was unknown to any of the Church 
 
 1 The authority to commence the suit was embraced in the following reso- 
 lutions, which are here taken from the minutes of the Executive Committee : 
 
 “ At a meeting of the Executive Committee of the Board of Directors of the 
 Albany & Susquehanna Railroad Company, held at the city of Albany on the 
 8d day of September, 1869. 
 
 “ Present, Azro Chase, David Wilber, and Jacob Leonard. 
 
 “ Whereas , certain books of this company, two stock-ledgers, two transfer- 
 books, book of stock certificates, cash-book, book of minutes, and two sub- 
 scription-books, have been abstracted from the office of this company by Joseph 
 H. Ramsey, William L. M. Phelps, Robert H. Pruyn, and Henry Smith, acting 
 in concert with others, and it is important that said books should be recovered 
 and restored to the office of the company : therefore 
 
 “ Resolved , That Field & Shearman be employed as counsel to take all legal 
 means for the recovery and restoration of the said books, and for the arrest 
 and punishment of the persons abstracting them, with liberty to employ asso- 
 ciate counsel as they may find it expedient ; and further 
 
 “ Resolved , That the books, as soon as recovered, be deposited in the office 
 of this company, to be there kept with the other books of the company. 
 
 (Endorsed.) 
 
 “ The within resolution was this day passed at a meeting of the Executive 
 Committee, all being present excepting Messrs. Ramsey and Rice. 
 
 “Dated September 3, 1869. 
 
 “Azro Chase, 
 
 “ David Wilber, 
 
 “ Jacob Leonard.” 
 
64 
 
 directors or tlieir counsel or attorneys, either in Albany or 
 New York. 
 
 It bas been charged that this order of arrest was obtained 
 for the purpose of preventing Ramsey and the other de- 
 fendants from participating in the election, by seizing their 
 persons; and among other proofs of this purpose, the 
 alleged exorbitant amount of bail required has been pointed 
 to. The amount of bail, considering the wrongful acts 
 charged in the complaint, does not appear to have been 
 excessive in itself ; and it is only by applying it to the 
 hypothesis of an oppressive and fraudulent purpose in mak- 
 ing any arrest, that it can be regarded as excessive. It was 
 an amount of bail which men in the positions of the 
 defendants could and did easily procure as soon as they 
 were required to do so. With respect to the time and other 
 circumstances of the actual arrest, I shall consider hereafter 
 what tendency they have to establish the charge of a 
 fraudulent intent. At present, it is enough to say that all 
 correct reasoning on such a subject must involve the inquiry 
 whether there was not, on the part of the Executive Com- 
 mittee who authorized and the counsel and attorneys who 
 conducted this proceeding, another purpose, of an entirely 
 legitimate and proper character, with which all their acts in 
 regard to it are more consistent than they are with a wrong- 
 ful purpose. 
 
 I am informed that the expectation with which this or- 
 der of arrest was obtained, was that it would compel the 
 production of the books ; and that no other use was ever 
 intended to be made of it. Is this a rational supposition \ 
 To those who are predisposed to look upon every step that 
 was taken by one of the parties to this excited contest 
 as so many proofs of a base conspiracy to obtain the con- 
 trol of a railroad by fraud and against the wishes of a 
 majority of its stockholders, nothing will seem rational 
 that conflicts with that view of their conduct. But to 
 those who reflect that this suit was instituted under the 
 advice of men of mature years, great experience, and 
 hitherto unblemished integrity — I refer to the counsel who 
 
65 
 
 procured a modification of Judge Peckham’s injunction — who 
 recollect that the production of those hooks was essential to a 
 fair election of directors, and that the process resorted to was 
 one expressly authorized by law, it will not seem an irra- 
 tional supposition that such men relied upon it as an effect- 
 ual means of compelling the production of the books, and 
 of securing to their clients the inspection and use of the 
 books to which they were unquestionably entitled. There 
 are few lawyers, I apprehend, who are accustomed to advise 
 on such affairs, who would not regard an arrest of parties 
 unlawfully and clandestinely concealing property to the 
 possession of which their clients w r ere entitled, as a legiti- 
 mate and proper weapon of the law to compel the wrong- 
 doers to make restitution, when the law itself expressly 
 authorizes an arrest in such cases. What was and is the 
 whole object of an arrest for debt on mesne process, when 
 it was or now is authorized ? Was it and is it not to com- 
 pel payment of the debt ? It surely never w r as, in any true 
 theory of the law, to incarcerate the defendant as a punish- 
 ment for not paying. The legitimate and proper purpose is 
 to compel payment. In like manner, the proper purpose 
 of an arrest on mesne process of one who is charged with a 
 wrongful embezzlement or concealment of personal prop- 
 erty, is not that the arrest may operate as a punishment, 
 but it is that it may operate to compel the production of the 
 property. In any inquiry, therefore, of an ethical nature 
 into the motives or purposes of a lawyer who has advised 
 such an arrest, this legitimate and proper use of legal 
 process is not to be overlooked. A lawyer, like all other 
 men, when a moral judgment is to be passed upon his profes- 
 sional acts, is entitled to demand that his acts shall be 
 judged by applying them to the proper motive with which 
 they might have been performed, and wdth which they are 
 clearly consistent. It is as great a wrong to assume an 
 improper motive in forming our opinions of a man’s con- 
 duct, and to array the evidence only in reference to that 
 hypothesis, as it is to pervert the evidence or to misrepre- 
 sent the facts. He who would judge truly must embrace 
 5 
 
66 
 
 the whole circle of rational motives, and especially he must 
 not exclude a motive which is commonly acted upon in 
 doing that about which he is inquiring. 
 
 Furthermore, it is worthy of consideration here, whether 
 the wrongful purpose which has been imputed to these 
 gentlemen is a rational supposition. How could they ima- 
 gine it possible for them to arrest those parties on the eve ot 
 that election, for the sake of preventing them from acting 
 at the election , without incurring a liability of a most serious 
 character ? The reader must remember that, in this investi- 
 gation, we are not dealing with the characters of men who 
 are either tyros or fools ; but with men of large experience 
 in affairs, of acknowledged forecast, of extensive profes- 
 sional knowledge, and of undisputed ability to discern the 
 limits of legal and moral rectitude. To whatever extent 
 they may be supposed to have been zealous for the interests 
 of their clients, I am quite free to say that, according to my 
 observation, men of their years and abilities do not com- 
 monly allow zeal for their clients to carry them into acts, 
 and to pursue objects, which would be irrational because 
 they could not possibly be successful, even if there were no 
 higher restraint operating to prevent them. The election 
 of the Church ticket of directors at that corporate meeting, 
 could no more have been carried, so as to be valid, by 
 arresting Mr. Ramsey and lodging him in jail until after 
 the election had been held, with a purpose to prevent his 
 acting, than it could have been carried and be made valid 
 by placing a file of soldiers at the polls, with orders to shoot 
 every man offering to vote the Ramsey ticket. And I pre- 
 sume that this was just as well known to the counsel who 
 advised the bringing of the suit, as it is known now to me, 
 and every other lawyer in the land. 
 
 With respect to any improper purpose in arresting Mr. 
 Phelps, he was not, I understand, a stockholder, had no spe- 
 cial duty to perform at the election, and the Church party 
 could therefore have had no motive in preventing him from 
 being present. As to Mr. Smith, although he was one of 
 numerous counsel acting in the Ramsey interest, it vrould 
 
67 
 
 be difficult to find a reason for preventing him from being 
 present at the election, and at the same time leaving Judge 
 Allen, Judge Porter, and all the other counsel who were 
 present, to render their valuable and important services to 
 their clients. So that, as it appears to me, the reader must 
 commence his inquiry into the facts and circumstances at* 
 tending that arrest, with an irrational hypothesis on the 
 one side to which to apply them, and with an entirely 
 rational hypothesis on the other side, with which the actual 
 occurrences are perfectly consistent throughout. 
 
 The facts attending the arrest were these : The papers 
 authorizing the suit to be brought arrived at the office of 
 Field & Shearman, in New York, on Saturday the 4th of 
 September, between one and two o’clock. Mr. D. D. Field 
 had then left his office to take the train for Stockbrid^e. 
 Mr. Dudley Field, his son, proceeded to draw the complaint 
 with all dispatch, but the whole of the necessary papers 
 could not be prepared until Monday the 6th. On that day, 
 Mr. Morgan, of the law firm of Lowe, Clarke & Morgan was 
 employed as counsel to obtain the order of arrest and take it 
 to Albany. Judge Barnard was then holding the Court at 
 chambers. Mr. Morgan proceeded to chambers, found that 
 Judge Barnard had left for the day, followed him to his 
 house, and there obtained the order of arrest. He then took 
 the first train to Albany, where he arrived at about midnight. 
 At Albany he delivered the papers for the arrest to Conway, 
 a clerk of Mr. Hamilton Harris, with directions to deliver 
 them to the sheriff at the earliest possible moment that 
 morning, the 7th. Before the sheriff’s office was open that 
 morning, Conway handed the papers to the sheriff in person, 
 at his house. The time at which the sheriff’s office was 
 opened was nine o’clock. No orders were given as to 
 the time or place of service ; but when Conway placed 
 the papers in the hands of the sheriff, the latter asked 
 if there were any instructions, to which Conway an- 
 swered, “ Only to do your duty.” At the same time there 
 was placed in the sheriff’s hands a jpluries non-bailable 
 attachment, issued by Judge Barnard, directing him to arrest 
 
68 
 
 Pruyn for an alleged contempt of one of Judge Barnard’s 
 previous orders. Pruyn was at this time out of the State, 
 and the sheriff had heretofore been unable to find him. 
 Without any further communication with any one concerning 
 the service of any of these papers, the sheriff went to consult 
 his own counsel, William J. Hadley, who was in no way 
 connected with either of the parties to these controversies, 
 and to obtain his advice concerning the time and mode of 
 serving the papers that had been placed in his hands . 1 Had- 
 ley advised the sheriff to look for Pruyn at the office of the 
 Albany & Susquehanna Railroad, as he would be likely to 
 go there if he had returned to Albany, and that it was his (the 
 sheriff’s) duty to look for Pruyn at that place. In regard to 
 Hie arrest of Ramsey, Phelps, and Smith, Mr. Hadley told the 
 sheriff that if he should meet Ramsey and Phelps when search- 
 ing for Pruyn, it would be his duty to serve the process of 
 arrest, otherwise he would be liable for an escape, but that 
 he should take care to have bail-bonds with him, and give 
 them as little inconvenience as possible, in order not to in- 
 terfere with the election , or to prevent their participation in 
 it. The sheriff thereupon went to his office to procure bail- 
 bonds, leaving the papers in the hands of his counsel, for 
 further examination. Having procured the necessary blanks 
 for taking bail, the sheriff returned to Mr. Hadley’s office, 
 and Mr. Hadley repeated to him the instructions and advice 
 he had already given respecting the arrest of the several par- 
 ties named. Some other necessary business which the sheriff 
 had to transact that morning, and the preparations and con- 
 sultations with his counsel in regard to these arrests, had oc- 
 cupied so much time, that it was about half -past eleven o’clock 
 when the sheriff left Mr. Hadley’s office to go to the office 
 of the railroad. He was accompanied by his under-sheriff. 
 When they arrived at the office of the company, Pruyn was 
 
 1 It has been stated with absolute incorrectness, in the North American 
 Review, that the sheriff consulted a lawyer who was “ one of Mr. Fisk’s numerous 
 counsel.” Mr. Hadley has made oath that he was not counsel for any of the 
 parties, and that he had no interest or motive in advising the sheriff excepting 
 to aid him in the discharge of his official duty. See Mr. Hadley’s affidavit in 
 the Appendix. 
 
69 
 
 not there, but Ramsey, Phelps, and Smith were. The sheriff 
 informed each of them of the process which he held ; stated 
 to them that he wished to cause them no inconvenience, and 
 requested them to procure bail. While the bonds were pre- 
 paring, they passed in and out of the room in which the 
 sheriff met them, into the adjoining room, the sheriff using 
 no other restraint than to desire them not to leave the build- 
 ing . 1 Bail was at once procured and offered. The sheriff 
 himself had some doubt about the sureties, but Mr. Shear- 
 man, who knew their standing, requested the sheriff to ac- 
 cept them, in order to have them released from all restraint 
 as speedily as possible. The bail-bond was executed for all 
 three before the voting began. 
 
 Any extended comments on these facts seems to me 
 wholly unnecessary. They are not reconcilable with an at- 
 tempt to arrest these men and remove them from that build- 
 ing, in order to prevent them from taking part in the elec- 
 tion, or to restrain them within the building until the meet- 
 ing should be organized and the voting should have taken 
 place. It has been said that 66 the whole proceeding cer- 
 tainly spoke volumes for the ingenuity and resource of those 
 who engineered it. In its style it could not have been im- 
 proved.” 2 There is no ingenuity in engineering an occur- 
 rence which transpires by mere accident, as did the sheriff’s 
 first meeting with these gentlemen at the time and place 
 
 1 Mr. Ramsey testified on the trial of the case of the People vs. The Albany 
 & Susquehanna Railroad Company and others, that the sheriff would not allow 
 him to leave the room. But the sheriff, on the same trial, gave a very different 
 account of this matter, when cross-examined as follows : 
 
 Q. Do you remember the circumstances of your refusal to allow Mr. Ramsey 
 to go out of the room while the bonds were being prepared ? 
 
 A. No, sir ; he went just where he had a mind to 
 
 Q. Will you take your oath that you did not tell him not to leave the room ? 
 
 A. I don’t remember. I was very kind to him. I did not want to give him 
 any inconvenience. They went about the room, in and out. Mr. Smith was the 
 last one, and I waited at the corner of the desk, and I think that I sent away to 
 ask if he was at leisure 
 
 Q. When you went down to the Susquehanna offices on the day of the elec- 
 tion, had you any intention to interfere with the election ? 
 
 A. No, sir 
 
 2 North American Review. 
 
TO 
 
 where he did ; hut there may be a great deal of a certain 
 kind of ingenuity displayed in misstating and suppressing 
 facts, as has been done to an extraordinary extent in the 
 article in the North American Review^ entitled “ An Erie 
 Raid.” It is twice stated in that article that the sheriff’s 
 legal adviser was one of Mr. Fisk’s counsel. The sheriff’s 
 legal adviser has sworn that he was disinterested. It is 
 stated in the article that u the officials of the road were 
 arrested just when they should have been organizing their 
 meeting.” Hone of them had any special duty to perform in 
 organizing the stockholders’ meeting ; but Ramsey, who was 
 the only stockholder among the three, had a right to be 
 present and to vote. His presence was never for an instant 
 interrupted. Even if no bail-bond had been signed and ac- 
 cepted, it is impossible, if the sheriff and his counsel are to 
 be believed on their oaths, to imagine that Mr. Ramsey 
 would have been prevented from voting, either in the or- 
 ganization of the meeting, or in the choice of directors. 
 
 From a full and careful collation of all the evidence 
 that has been given on this subject, I am satisfied that the 
 Reviewer has not correctly stated the facts respecting the 
 time of the arrest ; that his representations that “ half an 
 hour ” was occupied in arranging the bail-bonds, that thus 
 Mr. Shearman’s “ coup had been completely successful,” be- 
 cause Mr. Ramsey had been kept under restraint until the 
 polls of the Church organization “had been long open;” 
 that Mr. Smith, in consequence of the arrest, was unable to 
 attend to the organization of another stockholders’ meeting 
 until after “ the Erie party ” had so matured their plans as 
 to feel sure that they were “ in possession of the Albany 
 and Susquehanna Railroad beyond peradventure,” have 
 given an entirely false coloring to this occurrence. A fair 
 examination of the evidence shows, in my opinion, that the 
 sheriff made known to Mr. Ramsey and the other defend- 
 ants in the process of arrest, that he had such a process, at 
 ten or fifteen minutes before twelve o'clock , which was the 
 hour fixed for the election ; that very little time was con- 
 sumed in arranging the bail-bonds, in consequence of Mr. 
 
71 
 
 Shearman’s promptness in accepting the sureties offered; 
 that none of the parties subjected to the technical arrest 
 were in any way restrained in their movements through the 
 different rooms ; and that the bail-bonds were executed and 
 the parties released from the arrest before 12 o’clock and 
 before the voting at the “ Harris poll ” began. If Mr. Shear- 
 man had any “ coup ” to effect, by causing Mr. Ramsey, 
 Mr. Phelps, and Mr. Smith, to be arrested in those rooms , 
 at the moment when their presence was most necessary — a 
 supposition that is entirely irreconcilable with the sworn 
 statements of the sheriff and his counsel in their affidavits — 
 then Mr. Shearman took the very course most likely to de- 
 feat his own object. A lawyer, who had the alleged purpose 
 to effect, would not have promptly come forward to advise 
 the sheriff to accept the bail offered. In my opinion, the 
 time and place of the arrest were pure accidents, over which 
 Mr. Shearman had no control, and for which he is under no 
 moral responsibility ; nor do I think that Mr. Field, Judge 
 Parker, or Mr. Harris, knew, or could have known before- 
 hand, of the sheriff’s movements during that forenoon, or that 
 any arrest was likely to be made at the time and place where 
 it was made. In fact, among all the j ndicial orders that were 
 served at that meeting, on the one side and the other, this 
 arrest, accidentally made there by the sheriff, appears to have 
 caused less real embarrassment to anybody than any other 
 order or process that was brought there. As soon as it had 
 been served, the defendants made known, and then for the 
 first time, that the books were in the company’s safe, to 
 which they had been returned, secretly, on the previous 
 night. 
 
 Again : the Reviewer has torn from its context a sen- 
 tence of Mr. Shearman’s testimony, and perverted it to a 
 bearing on this arrest, to which it had no relation, in the 
 following manner: 
 
 “ The thing [the arrest] could not have been better 
 timed. To understand the full possible effect of this move, 
 and the spirit in which it was made, it is necessary to bear 
 in mind a remark of Mr. Shearman in his subsequent testi- 
 
72 
 
 mony : ‘ I didn’t want to lose a second’s time, because I 
 knew the value of time in this case, and I knew that the 
 whole question would have to depend upon the question of 
 which meeting was organized first.’ The officials of the 
 road were, therefore , arrested justVlien they should have 
 been organizing their meeting.” 
 
 I know not whether the reader will entertain the same 
 opinion that I do respecting such gross perversions of testi- 
 mony. "When they occur before a court or jury, they com- 
 monly receive the castigation they deserve. Are they less 
 worthy of rebuke, when they are made in print for the pur- 
 pose of influencing public opinion ? At all events, what- 
 ever may be the disadvantages with which Truth has to 
 “ draw on his boots ” in order to pursue what has gone be- 
 fore him, the reader will now learn that Mr. Shearman’s re- 
 mark had no reference whatever to this arrest, and, more- 
 over, that his testimony has been garbled as well as misap- 
 plied. Mr. Shearman, on the trial from which this extract 
 was taken by the Reviewer, was subjected to a severe cross- 
 examination respecting his motives and movements on that 
 day, in the course of which the following occurred : 
 
 “ Q. Did you go beforehand to see Mr. Banks, and inquire which 
 was the room where the stockholders’ meeting was to he held, so that 
 you could find it on election day? A. For that and other purposes. 
 
 “ Q. Didn’t you go to him to find out which room they were going 
 to occupy, so that it could be preoccupied by those in your interest ? 
 A. Mo, sir. 
 
 “ Q. Then tell me what motive you had ? A. I wanted to know 
 when I went down there which room to enter. 
 
 “ Q. Was you afraid you could not find it? A. I didn’t want to 
 lose any time ; I wanted to be there at the minute exactly. 
 
 “ Q. Do you mean to say that you went there and made inquiries 
 of Mr. Banks in reference to those rooms, for fear you wouldn’t be able 
 to find the proper rooms when you went there to the election? A. Yes, 
 sir, that’s it exactly. 
 
 u Q. And that was your only reason? A. Yes, sir, and for the 
 purpose of giving information to the gentleman that was with me, and 
 I didn’t want to lose a second’s time, because I knew the value of time 
 in this case, and I knew that the whole question would have to depend 
 upon the question of which meeting was organized first.” 
 
But it is needless to follow further in detail the mis- 
 representations that have been made concerning the circum- 
 stances and the purposes of this arrest. The reader will 
 find the material facts fully set forth, in a series of affidavits 
 annexed to this opinion, which were read by the counsel for 
 the Church party on the hearing of a motion made in the 
 interest of the Ramsey party in May, 1870, in the Supreme 
 Court, in Albany County, for a discontinuance of the suit 
 in which the arrest was ordered, upon the ground that it 
 was brought without due authority , and also on the ground 
 that the Ramsey Board of Directors , after they had been 
 put in possession , had directed its discontinuance . The 
 judge who heard this motion (Judge Ingalls), after the 
 reading of affidavits on both sides, inquired whether the suit 
 had not answered its main purpose, the books having been 
 restored to the office of the company before the election ; 
 and upon the counsel for the plaintiffs answering in the af- 
 firmative, he ordered a discontinuance, without any costs. 
 It is not true, therefore, as has been asserted, that this suit 
 was discontinued because it had been brought without 
 authority. The motion w T as made to effect not only a dis- 
 continuance, but also to compel the payment of the defend- 
 ants’ costs by the plaintiff’s attorneys, or the Executive Com- 
 mittee. This the judge denied. 
 
 Among the other incidents of the election it is now ne- 
 cessary to examine the act of Mr. Fuller in voting on the 
 shares which he held as receiver, and the connection of Mr. 
 Field or Mr. Shearman with that act. It will be remem- 
 bered that the charge is, that this receivership was obtained 
 on the 14th of August, for the fraudulent purpose of voting 
 on these shares in the interest of the Church party, at the 
 election on the 7th of September, against the wishes of the 
 alleged owners of the shares ; and that the act of voting by 
 the receiver, coupled with the circumstances under which 
 he gave his vote, proves the original purpose of obtaining 
 the receivership to have been fraudulent. It is, perhaps, 
 needless to remark that the receiver’s act of voting may or 
 may not have some tendency to establish the conspiracy 
 
74 
 
 charged, according to the circumstances under which the 
 vote was given. If those circumstances make the act of 
 voting just as consistent with a rightful as with a wrongful 
 purpose, I suppose that very few readers will expect me to 
 arrive at the conclusion that this receivership was part of a 
 plot to carry the election by fraud. I take it to be as sound 
 a rule in forming the moral judgments of every-day life, as 
 it is in courts of law, that a base fraud is not to be imputed 
 to any man, unless upon very clear evidence ; and that when 
 the evidence is circumstantial, it ought to have a very strong 
 tendency to exclude the possibility of an honest purpose, be- 
 fore it is allowed to convict any man of a dishonest one. 
 
 The reader has seen all the material facts connected with 
 the appointment of the receiver. He has now to follow the 
 receiver to Albany. 
 
 Mr. Fuller has testified under oath that he w r ent to Al- 
 bany to attend the election, at the request of no one , although 
 he had previously conversed with Mr. Shearman, and possi- 
 bly with Mr. Field, but of that he was not clear ; that nei- 
 ther of these gentlemen requested him to go to Albany and 
 vote on this stock ; that when he went he was undecided in 
 his own mind about voting, but that he meant to watch the 
 proceedings and be governed by circumstances ; that * his 
 general purpose was not to vote, unless some emergency 
 should render it necessary ; that on the morning of the elec- 
 tion in Albany he had some conversation with Mr. Shear- 
 man, and went with him to the place where the election was 
 to be held ; that he was not acting in concert with Mr. Field 
 and Mr. Shearman ; that before going to the room Mr. Shear- 
 man gave him a ticket having the names of the Church di- 
 rectors ; and that he voted that ticket after Mr. Groesbeck’s 
 injunction had been served on the inspectors at the Harris 
 poll, and after Mr. Shearman had advised him to vote, first 
 exhibiting to the inspectors the papers of his appointment 
 as receiver of the stock referred to in the injunction, togeth- 
 er with the scrip. lie testified, further, that he did not con- 
 sider it his duty in voting to consult the wishes of those who 
 claimed to own the stock, i. e., Groesbeck and others. 
 
75 
 
 The poll at which Mr. Fuller voted was what was called 
 the “ Harris poll.” The facts attending the organization of 
 the meeting have been already detailed. The facts show 
 that the Groesbeek injunction, served on the inspectors at 
 the “ Harris poll,” just as they had opened their poll, for- 
 bade the receiving of any votes of the Church party, unless 
 the “ holders ” of the Groesbeek stock should first have been 
 allowed to vote on that stock. One of the copies of that in- 
 junction, which was one of the copies served, is now before 
 me. It is a printed copy ; which fact shows that previous 
 preparation for its service at the polls had been made in ad- 
 vance. By its date, it purports that the original was signed 
 on the 6th of September. At the foot it has the words and 
 figures “Dated September 6, 1869,” all of which are in 
 print excepting the figure “ 6,” which was inserted with a 
 pen in a blank left for the purpose. It is morally certain, 
 therefore, that this injunction, prepared for in advance, was 
 not obtained until the 6th ; that it was intended to be served 
 on the 7th at the election ; and it is a fact that no intimation 
 of it was given to the Church party until the moment when 
 it was served on the inspectors at the Harris poll. It thus 
 created suddenly an unexpected situation, which the Church 
 party could not have foreseen. They supposed, as I infer 
 from the injunction which had been obtained by Bush on 
 the 31st of July, and from the receivership which had been 
 ordered on the 14th of August, that the Groesbeek stock 
 (3,000 shares) was neutralized ; and it was clearly unneces- 
 sary for them to use those shares in voting, because they had 
 a majority of all the outstanding undisputed stock. It was 
 not, therefore, until Groesbeck’s injunction had been served, 
 that it became of any importance to the Church party to 
 have this Groesbeek stock voted on by anybody. But when 
 that injunction had been served, a new and unexpected ne- 
 cessity arose for receiving votes on that stock from some- 
 body. The votes on it were cast by the receiver. 
 
 It w T ill thus be seen that two questions arise in regard to 
 the act of the receiver in voting on this stock. One is, 
 whether he could lawfully cast a vote which ought to be 
 
counted in the election, supposing that what was called the 
 “ Harris poll ” was duly and properly held. The other 
 question is, whether Mr. Shearman, or any other lawyer, 
 could on the spot have honestly advised Mr. Fuller to vote. 
 The first is purely a question of law. The second is a ques- 
 tion of professional ethics, depending, for the true elements 
 cf a moral judgment, on the inquiry whether it was so 
 clearly illegal and improper for the receiver to vote, that no 
 lawyer could have advised him to vote without acting from 
 an improper motive and with an improper intent. For, I 
 presume all impartial and intelligent lawyers and laymen 
 will agree, that unless Mr. Shearman was bound to have 
 seen that it was clearly unlawful for this receiver to vote, 
 his advice to the receiver to give his vote is no evidence that 
 Mr. Shearman was acting in pursuance of a corrupt conspir- 
 acy to carry the election fraudulently, as it is also no evi- 
 dence that such a conspiracy existed. 
 
 How I shall endeavor to state the argument both for and 
 against the lawfulness and propriety of this receiver’s vot- 
 ing on this stock, with equal fairness; and I begin with 
 the reasons that may be assigned against his voting : 
 
 In the first place, it may be said that the purpose of the 
 action in which the receiver was appointed was professedly 
 to have the issue of the stock declared void, and the scrip 
 delivered up to be cancelled. In the next place, it may be 
 said that a receiver is a mere officer of the court, holding 
 the possession of property as a trustee for a temporary pur- 
 pose, and that if there are to be any acts done with or 
 concerning the property which are to be done by virtue of 
 the legal title, it belongs to the owner of the legal title to 
 do those acts, rather than to a trustee who has the mere pos- 
 session for a temporary and judicial purpose. In the third 
 place, it may be said that a receiver of stock in a corpora- 
 tion, the lawfulness of whose issue is in contestation in a 
 suit, cannot vote at an election of directors along with hold- 
 ers of stock whose right to vote is not contested, because 
 stock so held by a receiver ought not to be considered as 
 held for the purposes of voting, since it maybe used against 
 
Y7 
 
 the wishes of those in whose names it stands registered. 
 Finally, it maybe said that it is the duty of a receiver hold- 
 ing stock in a corporation situated as this stock was by the 
 pendency of the action in which he was appointed, to apply 
 to the court which appointed him for directions, and not to 
 assume to vote upon the stock without an express authority 
 from the court ; and that if this receiver had so applied, there 
 is ground for saying that no such authority would have been 
 rightfully given, because the court does not vote at corpo- 
 rate meetings. 
 
 On the other hand, it must be remembered that when 
 property is placed in the hands of a receiver by a court of 
 equity, the party who held the legal estate at the time the 
 possession was so transferred, is not necessarily the sole ces- 
 tui que trust. Receivers hold in trust for all the parties 
 having any beneficial interest in the property, while their 
 official possession continues, and for whomsoever the final 
 judgment shall be when their official title and possession 
 terminate. There may be, therefore, various cestuis que 
 trust , all of whose rights and equities are for the time being 
 held by the same trustee ; and I have already suggested 
 the grounds, which seem to me very plain, on which it is 
 to be held that the plaintiff in the suit had established 
 for himself and all the other bona fide stockholders an ap- 
 parent right or equitable interest in the property, accord- 
 ing to the meaning and purpose of the Code, for the pur- 
 poses of a receivership, which right or interest must be 
 regarded as existing until final judgment on the merits of 
 the action, not/withstanding the allegation of the complaint, 
 that the issue of the stock to the defendants was unlawful 
 and void. In regard to the question of allowing a trustee 
 of stock to vote, instead of one or more of the cestuis que 
 trust , I know of but one case that can be cited against the 
 right of the .trustee to cast the vote. It is the case of 
 ex jqarte Holmes, 5 Cowen, 426, where the Supreme Court 
 set aside an election of directors that had been carried by 
 the vote of a trustee. But a proper examination of that 
 case and of the view of it taken by Savage, Chief Justice, in 
 
78 
 
 the later case in re Jacob Barker, 6 Wendell, 509, will 
 show that neither of those cases touches the right of a re- 
 ceiver to vote, who holds stock situated as this stock was at 
 the time of Mr. Fuller’s voting. In ex parte Holmes, the 
 stock belonged to the company, but was registered in the 
 name of a trustee who held it for the company ; and it was 
 held that the trustee could not vote, not because the cestuis 
 que trust was the proper party to vote, but because the 
 whole beneficial property in the stock belonged to the com- 
 pany, and could be controlled by its officers the directors, 
 who might use it to perpetuate themselves in office by re- 
 quiring the trustee to vote for themselves. “ All that was 
 said in that case,” said Savage, Chief Justice, “ in relation 
 to the rights of a trustee or cestui que trust to vote on stock 
 standing in the name of the trustee, either generally or 
 specially, in his representative character, was said in refer- 
 ence to the peculiar circumstances of that case. The court 
 never could have doubted the right of a person to vote upon 
 stock standing in his name, although held by him in trust 
 for another,” etc. (In re Jacob Barker, ut supr.) The 
 stock held by Mr. F nller, and on which he voted, was not 
 registered in his name, but is a peculiar case. It stands, 
 therefore, unaffected by ex parte Holmes, unless the reasons 
 assigned in that case for not allowing the trustee to vote are 
 also applicable to the case of this receiver. In ex parte 
 Holmes the legal title was in the trustee, but the whole 
 beneficial interest was in the company; and because the 
 directors could, therefore, dictate his vote to the trustee, it 
 was held that stock so situated must be considered as not 
 held for the purpose of voting. But how was it with the 
 stock held by this receiver ? The whole beneficial interest 
 was not in the company, and the stock stood registered in 
 the names of Groesbeck and others, who had 25 per cent, 
 of the beneficial interest in it, as the receiver was bound to 
 assume on the papers in the action, and who, moreover, 
 claimed the whole interest. How, then, could the directors 
 of this company dictate a vote to the receiver ? They could 
 not remove him, or control him, as it was said in ex parte 
 
79 
 
 Holmes the directors could have done with the trustee in 
 that case. As representatives or officers of the wdiole body 
 of stockholders, the directors of this company could only- 
 leave the receiver to act on his own judgment of wffiat was 
 required by the interests of all the cestuis que trust , of whom 
 he was the representative in a much more direct and specific 
 sense than the directors, for the plaintiff and the other stock- 
 holders were acting in reference to this stock not through 
 the directors, but by the intervention of the court. The 
 mischiefs, therefore, on which ex parte Holmes was decided, 
 do not affect this case. The directors could not control the 
 receiver, and no evidence exists that any party among them 
 attempted to do so. 
 
 In regard to the supposed rule that a court of equity 
 does not vote at corporate meetings, it obviously will not do 
 to say that a receiver of stock is not to vote under any cir- 
 cumstances. Under such a rule, if the receivership hap- 
 pened to comprehend ninety-nine hundredths of the whole 
 stock, there would be an election of directors by the remain- 
 ing one-hundredth, and the ninety-nine hundredths would 
 not be represented at all. Ho court of equity would allow 
 of this, but it would allow and direct its receiver to vote for 
 the protection of the interests of all whom he represents. 
 And in regard to the necessity of an application to the 
 court for directions to the receiver, while such is undoubtedly 
 the general rule, may there not be circumstances in which 
 the receiver may be obliged to act on his own discretion, 
 before he can ask for directions, in order that there may be 
 an election at all, or that there may be a fair election ? In 
 this case I conceive that there were such circumstances. 
 For, the service of the injunction obtained by Groesbeck, as 
 above stated, forbidding the inspectors to receive the votes 
 of the whole Church party among the stockholders, unless 
 Groesbeck and others, claimants of the 3,000 shares in con- 
 troversy, and all the “ holders thereof,” should “ first have 
 had an opportunity to vote upon all the shares by them held 
 respectively ,” placed the receiver under a species of moral 
 duress to decide instantly two questions : first , whether he 
 
80 
 
 had a general power to vote ; and secondly , whether he was 
 not to be regarded, within the terms of this injunction, as 
 the holder of the stock, whose previous vote was the key 
 that was to unlock the prohibition and permit the votes of 
 the Church party to be received. A fair construction of 
 the injunction certainly raised the question whether it 
 was not the duty of the receiver to vote as “ holder ” of the 
 3,000 shares. Groesbeck and the other plaintiffs in the 
 injunction were not the holders of the stock or of any part 
 of it ; for they had surrendered the scrip to a receiver, w T ho 
 was for all purposes the “holder” of the shares while his 
 receivership continued. Groesbeck and the other claim- 
 ants of the shares could not cast the vote upon them merely 
 because they were a branch of the cestuis que trust. If they 
 were to be voted upon at all, the vote must be cast by the 
 receiver ; and it was the clear meaning of the injunction 
 that somebody should vote upon them, otherwise the votes 
 of the whole Church party among the stockholders, repre- 
 senting 10,400 shares, would be excluded. Moreover, Mr. 
 Groesbeck was in the room when his injunction was served 
 at the “ Harris poll.” He did not claim the right to vote 
 on the stock himself, nor did he ask the receiver to vote 
 according to his (Groesbeck’s) wishes, nor did he or any one 
 else challenge the receiver’s vote. As soon as Mr. Shear- 
 man had an opportunity to read Groesbeck’s injunction, he 
 saw the necessity for some one’s voting on this stock, and 
 acting upon a construction of the injunction of which it was 
 certainly capable when applied to the situation of things at 
 that moment, he said to the receiver, “An injunction has 
 been served restraining this election from going on unless 
 the votes upon the 2,400 shares which you hold are first re- 
 ceived, and you had better vote.” Mr. Field gave no advice 
 to the receiver about voting, one way or the other. 
 
 It seems to me that these facts need only to be stated to 
 relieve Mr. Shearman from all imputation of a wrongful in- 
 tent. He was obliged to construe that injunction. Will it 
 be said that he did not construe it rightly, and that it meant 
 by “holders” of the stock no one but Groesbeck and others, 
 
81 
 
 the injunction plaintiffs ? If this was its sole meaning, which 
 under the actual situation of things in my opinion it was not. 
 is Mr. Shearman to he charged with an intent to carry that 
 election by & fraud, because he misconstrued an injunction? 
 Then why not charge Groesbeck and others with an intent 
 to prevent an election by fraudulent use of an injunction, 
 which they obtained without reference to the fact that the 
 stock was in the hands of a receiver, and which they served 
 at a moment when it would have excluded the whole of the 
 Church votes if the receiver had not come forward and voted ? 
 The answer is, that in neither case are these charges of fraud 
 to be lightly made, by him who would do equal and exact 
 justice in his judgments upon the acts of these parties. But 
 Mr. Shearman not only had to construe that injunction, he 
 had also to apply it to the real situation, so that the clients 
 for whom he was acting could have their votes received. 
 There was but one way in which their votes could be re- 
 ceived, namely, by first allowing some one to vote on the 
 3,000 shares held by the receiver. That the receiver was in 
 contemplation of law the “ holder” seems to be quite clear. 
 
 It has struck me very forcibly that in the long com- 
 plaint of Groesbeck and others on which the Albany County 
 judge granted this injunction, the fact that the stock claimed 
 was in the hands of a receiver was not stated. While this 
 complaint dealt very minutely in charges of a conspiracy, 
 and while it informed the Supreme Court in Albany County 
 that Bush had prayed for a receiver, it did not inform the 
 court that a receiver had been appointed ; and the sole in- 
 formation it gave was that at the instance of Bush an in- 
 junction had been granted restraining them (Groesbeck and 
 others) from parting with the stock. But Mr. Shearman did 
 not and could not know that Judge Clute’s injunction re- 
 quiring a vote to be first received on these 3,000 shares had 
 been granted in ignorance of the fact that they were then 
 “ held ” by a receiver. If he was bound to presume any 
 thing about it, he was bound to presume that Judge Clute 
 knew the precise situation of the stock, and to construe and 
 apply his injunction accordingly. It was certainly no unfair 
 6 
 
82 
 
 construction of that injunction, under the circumstances, to 
 regard it as a direction to the receiver to vote. 
 
 But it has been said (erroneously) that Groesbeck’s suit 
 in which he obtained this injunction, “ set forth the circum- 
 stances under which the receiver had been appointed , and 
 showing the illegality of the proceeding .” 1 There was 
 not a word in Groesbeck’s complaint, from which the 
 judge who granted the injunction could infer that this 
 stock had been ordered into the hands of a receiver, nor 
 was the receiver made a defendant in Groesbeck’s suit, 
 as he must have been if the injunction obtained was in- 
 tended to affect him. But if he had been made a party 
 to the suit, or the Albany court had been informed of his 
 receivership, and the injunction about voting had been 
 issued j ust as it was, then the true legal construction of that 
 injunction would have been that Fuller was the “ holder ” of 
 the stock. As it was, in point of fact, the injunction not 
 being specially directed against the receiver and there being 
 nothing to inform Mr. Shearman that the judge who granted 
 it did not know of the receivership, Mr. Shearman was 
 obliged to assume that the injunction meant by “ holders ” of 
 the stock the person who was then the “ holder” in contem- 
 plation of law. It has been said that this view of Mr. Shear- 
 man’s course is a “ pretence ” resting “ on an intrinsic ab- 
 surdity,” and that when Mr. Field explained Mr. Fuller’s 
 voting, in one of his published letters, by reference to the 
 operation of this injunction in creating a necessity for his 
 voting, he “ misstated the facts.” I have only to submit to 
 the candid judgment of the bar, whether there is any “ pre- 
 tence ” or “ intrinsic absurdity ” in the view which I have 
 taken of the operation of that injunction, and of the neces- 
 sity for giving it a construction under which it was proper 
 for the receiver to vote. That there is any u intrinsic ab- 
 surdity ” in this view, I think few sound lawyers will affirm, 
 even if they think the injunction should not have been so 
 construed ; and that Mr. Shearman could honestly construe 
 it as he did, will be thought by most impartial persons to 
 
 1 General Barlow’s letter. 
 
83 
 
 be a very clear proposition of morals, even if they do not 
 concur in his law. 
 
 In the foregoing discussion I have considered only the 
 question of whether Mr. Shearman, in construing the in- 
 junction as he did, acted fairly and honestly. This is all 
 that is necessary to his vindication. I ought to add, how- 
 ever, that in my opinion, after the service of this injunction 
 on the inspectors, it became the duty of the receiver to vote, 
 and that Mr. Shearman’s construction of the injunction was 
 under the circumstances correct. I do not think that this 
 question depends upon the intention with which Groesbeck 
 and others obtained the injunction. It depends upon the 
 true legal construction of the injunction. It could not be 
 construed to mean an absolute prohibition against receiving 
 the votes of the parties who held 10,100 shares of stock. It 
 was a conditional order, meaning that when votes had been 
 received on the 3,000 shares of (so-called) Groesbeck stock, 
 the parties who held the 10,400 shares might be allowed to 
 vote ; and there was no mode in which that condition could 
 be complied with excepting by allowing the receiver to 
 vote. 
 
 And this seems to be the proper place in which to state 
 that this receivership still continues. It will be remembered 
 that the original order appointing the receiver required the 
 defendants Groesbeck and others to show cause before Judge 
 Barnard on the 19th of August (1869) why it should not be 
 confirmed. It has been represented that Groesbeck and the 
 other claimants never appeared. General Barlow, in his 
 letter to the Tribune , in rejoinder to Mr. Field, said : 
 “ Groesbeck’s counsel were too familiar with the perform- 
 ances of Fisk, Gould, Field, Shearman, and Barnard, to 
 waste their time in arguing against the order before the 
 judge who granted it. They did not propose to go through 
 any such farce. They waited until the matter could be 
 heard before an impartial judge (Smith), and the receiver- 
 ship was then pronounced to be illegal. Their omission to 
 show cause against it before Judge Barnard, merely showed 
 their entire distrust of him as a judge, and their knowledge 
 
 C 
 
81 
 
 of the relations existing between the judge, parties, and 
 counsel.” 
 
 There is no foundation for these statements. On the 
 contrary, I have personally inspected a long series of orders 
 made in the case, extending from August 19, 1869, to May 
 1, 1871, showing the appearance of the defendants, and the 
 repeated confirmation of the receivership from time to time, 
 until cause should be shown against it. On the 19th of Au- 
 gust, 1869, the defendants, Groesbeck and others, appeared 
 by a highly-respectable firm of lawyers, and the hearing was 
 by consent adjourned to August 21th, on which day an or- 
 der w T as made, reciting that a motion for continuing the 
 appointment of the receiver coming on for argument and 
 parties on both sides appearing by counsel, it was ordered 
 that the motion stand over to the 15th of September, and 
 that in the mean time, and until the hearing and decision 
 of the motion, the appointment of a receiver theretofore 
 made be confirmed and continued, and that the injunctions 
 issued therein be also continued and confirmed. This order 
 was made by consent of the defendants’ counsel ; so that 
 when the election of directors came on at Albany, the pro- 
 visional possession of the receiver had been confirmed with 
 the assent of the very parties who are said to have known 
 too well the relations between the judge, the other parties, 
 and their cou nsel, to make any appearance in the case. By 
 a series of similar orders, all regularly made by consent, the 
 motion has been adjourned, and the receivership has been 
 continued, down to May 1, 1871, at which time I am writing. 
 
 It remains for me to examine briefly the complaints that 
 have been made against Mr. Field on account of what he 
 did or is supposed to have done in a suit brought by Mr. 
 Ramsey against the Erie Railway corporation and certain 
 of its directors. I have found some difficulty in reducing 
 these complaints to a substantive #nd tangible form. They 
 have been made and discussed in a way that seems to me to 
 
85 
 
 be conducive to any thing rather than to the promotion of a 
 sound professional morality ; for there appears to have been 
 a serious lack of condemnation in regard to the proceedings 
 which it became Mr. Field’s duty to oppose. Perhaps this 
 is owing to the fact that he had to act in some degree in de- 
 fence of interests with which are identified the names of 
 Fisk and Gould ; persons whose names it would seem it is 
 only necessary to mention, to call into activity an amount 
 of prejudice before which it is apparently expected that 
 Justice will drop her scales and Reason renounce her office. 
 But as I have never seen either of them, to my knowl- 
 edge, and do not possess any acquaintance with their gen- 
 eral merits or demerits, I may be permitted to observe that 
 if they have never done any thing worse than to defend the 
 great corporation whose interests are said to be under their 
 charge as they defended them against Mr. Ramsey’s -suit, 
 they have not much to answer for. 
 
 On the 13th of September, 1869, a suit was commenced 
 by the Attorney-General of the State in the name of The 
 People against the Albany & Susquehanna Railroad cor- 
 poration, both of its claiming Boards of Directors, and the 
 contending receivers, to determine whether either and which 
 of those boards and receivers had a good and valid title to 
 the offices which they claimed, and if neither, to order a new 
 election. Prominent among the defendants to this suit were 
 Messrs. Fisk and Gould, officers and principal managers of 
 the Erie Railway Company. This case was to come on 
 for trial in the Supreme Court, Special Term, in Monroe 
 County, at Rochester, on the 29th day of November, 1869, 
 before Judge E. Darwin Smith. 
 
 On the 17th of November, 1869, Joseph H. Ramsey 
 made oath in the City of Albany to a complaint made by 
 himself as plaintiff against Jay Gould and James Fisk, Jr., 
 Frederick A. Lane, and others, and the Erie Railway Com- 
 pany as defendants. The attorneys employed by Mr. 
 Ramsey to bring his suit were practitioners in the City of 
 New York. The principal offices of the Erie Railway 
 Company were in this city, and here all its principal offi- 
 
86 
 
 eers and all the individual defendants named (except one, 
 who lived at Jersey City) had their residences or places of 
 business. The original complaint, which I have seen, was at 
 first entitled as of “ Broome County,” but was afterward 
 altered to u Delaware County.” “ Broome ” is the county 
 of which Binghamton is the seat, at which city Judge 
 Balcom, of the Supreme Court, resides-. Whether the 
 plaintiff applied to Judge Balcom, or any judge in 
 Broome County to make the orders for which the complaint 
 prayed and which were granted in Delaware County, is 
 perhaps not sufficiently indicated by the fact that the com- 
 plaint was entitled of Broome County. This fact may 
 afterward have given rise to a suspicion that Judge Balcom 
 had been applied to and had refused to make the orders. 
 If this was so, it was a clear violation of a statute to obtain 
 the same orders from another judge. But when the first 
 knowledge of this suit reached the defendants, their atten- 
 tion was not directed to this inquiry, for they did not know 
 that the complaint had been originally so entitled. 
 
 The complaint alleged that the plaintiff Bamsey was a 
 creditor and stockholder of the Erie Bailway Company, and 
 that he brought the suit also in behalf of all others in the 
 like situation. The statement that he was a creditor and 
 stockholder was the only averment made in the complaint 
 on personal knowledge. The only cause of action against 
 the defendants, filling more than 330 folios, was averred on 
 information and belief alone, and the jurat gave it no 
 greater force. 
 
 In regard to the plaintiff’s interest as a creditor and 
 stockholder, he represented himself as the owner of several 
 bonds issued by the company, and of certain shares of its 
 stock not registered in his name, but u entitled to be stand- 
 ing in his name on the books of the company.” 1 (In point 
 of fact, as a subsequent affidavit of Mr. Bamsey shows 
 the plaintiff borrowed some money of David Groesbeck, 
 
 1 The Circuit Court of the United States in this District has recently held 
 that a person whose name is not registered as a stockholder cannot sue as 
 such, although he may have purchased stock. 
 
87 
 
 with which certain bonds and stock of the Erie Rail- 
 way were purchased, and in some way they were left or 
 pledged in the hands of Groesbeck as security.) The 
 gravamen of his complaint was, as stated on his infor- 
 mation and belief, that certain funds and property of the 
 company were left by its officers in the hands of one or 
 more of the other defendants or other persons not collected 
 or properly cared for and in peril of being lost ; and 
 further, that the company was generally in a perilous con- 
 dition in consequence of the neglect of its directors to meet 
 and give the necessary attention to its affairs for the protec- 
 tion of its property in the discharge of their functions. 
 The complaint prayed, first, for a special receiver of the 
 funds and property specially described to be in danger of 
 being lost ; secondly , for a general receiver of all the 
 property and franchises of the company (except the fran- 
 chise of being a corporation) and of all its funds, books, 
 papers, and property, excepting those to be placed in the 
 hands of the special receiver. On this complaint and 
 certain affidavits accompanying it, Judge Murray, of Dela- 
 ware County, at a Special Term of the Supreme Court, 
 held at Delhi, in that county, on the 23d of November, 
 1869, on motion of Mr. Henry Smith, of counsel for the 
 plaintiff, granted an order, appointing David Groesbeck 
 special receiver of the funds and property specially de- 
 scribed in the complaint to be in peril of being lost, with very 
 extensive powers in relation thereto, and also in relation to an 
 examination of the books and papers of the company. The 
 order further declared that it appeared to the court that if 
 the unsuspended directors of the company should omit to 
 meet, or neglect to take charge of, and give necessary atten- 
 tion to its affairs or the protection of its property and the 
 discharge of their functions, or if a certain number of the 
 unsuspended directors should resign, or omit, or refuse to 
 attend meetings of the board, so that no quorum and legal 
 action could be secured, in either event, the public interests 
 would be seriously prejudiced, and the company and its 
 creditors would suffer great loss. The order further de- 
 
88 
 
 dared that it appeared to the court that the company was 
 in a perilous condition, and that there was imminent 
 danger of some such event; and that upon the happening 
 thereof, there ought to b'e a receiver of the court ready and 
 competent, and whose right and duty it should then he to 
 enter at once into possession of the property and exercise 
 the franchises of the company, with the powers provided in 
 the order on the happening of any such event. The order 
 then proceeded to appoint David Groesbeck receiver of the 
 company, its property, and franchises, as prayed for, with 
 power to operate the road and all its branches, and with the 
 most extensive and sweeping powers that can be conferred 
 upon a receiver. On the same day, November 23d, Mr. 
 Smith, on behalf of the plaintiff Ramsey, obtained from 
 Judge Murray another order suspending Gould, Fisk, Lane, 
 and five other directors of the company, named defendants, 
 from acting either as directors or officers of the company, 
 or acting about its affairs in any capacity whatever till the 
 further order of the court in that case, and appointing a 
 referee to take evidence to be used on the final exercise of 
 the powers of the court in reference to their suspension or 
 removal from office. Mr. Smith also obtained, on the same 
 day, November 23d, a third order from Judge Murray, 
 restraining all creditors of the company from instituting 
 any suit to collect or secure their debts ; restraining all the 
 defendants from instituting any suit to embarrass or delay 
 Mr. Ramsey’s present suit ; restraining the defendants from 
 accepting or admitting service for the company of any 
 Summons, complaint, notice, or other paper, either in Mr. 
 Ramsey’s present suit or in any other suit involving their 
 official conduct, and restraining them from authorizing any 
 appearance in any such suit, and directing the company 
 and the directors not suspended to take promptly proper 
 action for causing the company to be faithfully and ade- 
 quately represented in this (Mr. Ramsey’s) present suit, and 
 restraining them, the unsuspended directors, from resigning 
 without three days’ written notice to his (Mr. Ramsey’s) 
 attorneys, stating when such proposed resignation was in- 
 tended to take effect. 
 
89 
 
 It is not my purpose to characterize these proceedings 
 and occurrences (the original suit, the strange appearance 
 of Mr. Runkle as attorney for the company mentioned here- 
 after, and the orders obtained), further than to say that they 
 were calculated to arouse the utmost suspicion on the part of 
 the legal advisers of the Erie Railway Company, and to call 
 for the most vigorous measures of defence. It has been said 
 that, if the order providing for a receiver had been carried 
 out, the company would have failed the same day ; and I 
 cannot but think that the remark was well founded. The 
 case bore no comparison whatever to the appointment of a 
 receiver of the Albany & Susquehanna Railroad. In that 
 case, as I have shown, a receivership was a measure of im- 
 mediate and pressing practical necessity. In this case a 
 receivership was necessary only in a theoretical and fictitious 
 sense. In the one case, those who had the official charge 
 of the road under its ordinary organization could not act. 
 In the case of the Erie Railway, at the time Mr. Ramsey 
 brought his suit, every officer of the company was in the 
 actual discharge of his functions, and, but for the contin- 
 gency created by the three orders obtained by Mr. Ramsey, 
 must have remained competent to the discharge of his duties. 
 Yet the orders were so framed as to make it possible, by 
 their combined operation, if withheld from the knowledge 
 of the officers of the company for a certain period of time, 
 to have the whole property, franchises, and management of 
 this great corporation swept into the hands of Mr. Groes- 
 beck, as receiver, Mr. Groesbeck being the person who had 
 advanced money to Mr. Ramsey to enable him to purchase, 
 or having purchased for him, the bonds and stock on which 
 Mr. Ramsey founded his claim to take these proceedings 
 against the company as a creditor and stockholder. 
 
 I do not think it can be claimed that Mr. Ramsey had 
 shown in this complaint that he was such a creditor or 
 stockholder of the company as could demand the appoint- 
 ment of a receiver of even the special funds which he sought 
 to reach by the special receivership. But if this point were 
 conceded, it is clear, in my opinion, that the Code has not 
 
90 
 
 authorized the appointment of a general receiver of all the 
 property and franchises of a corporation, to take elfect on 
 the happening of a future contingent event, which may or 
 may not happen, and which must happen before any neces- 
 sity for a receiver can be said to exist. If the Code had 
 made any such provision, then it would be in the power of 
 a plaintiff to exercise some control, or lay some plan for the 
 happening of that event, and by his own act bring about 
 the event on which the appointment of the receiver would 
 take effect. But such as this singular order was, it came 
 into operation with the two other orders, because they were 
 signed by a judge of the court. 
 
 On the 24th of November the Secretary of the company 
 was served with the summons, complaint, and injunction in 
 this suit (but not with the order for a receiver), the place of 
 trial being fixed at Delhi. This village, one of the most in- 
 accessible in the State from the City of New York, was then 
 over twenty miles from any railroad, and must be reached by 
 a drive of that distance over a mountainous region. On the 
 same day, the 24th, the plaintiff’s attorneys in New York 
 arranged with Mr. Bunkle, an attorney in this city, to ap- 
 pear for the corporation, and received from him a notice 
 of his appearance as attorney for the corporation in the 
 suit. The reason afterward given by Mr. Bamsey’s attor- 
 neys for making this arrangement with Mr. Bunkle was, 
 that they supposed themselves to have been authorized to 
 accept Mr. Bunkle’s appearance by Mr. Diven, one of 
 the directors ; but this turned out not to be correct. The 
 Secretary of the company immediately took the papers 
 which had been served upon him to the office of the 
 company, and thereupon the Executive Committee of the 
 directors immediately authorized Field & Shearman to 
 appear for the corporation. These gentlemen, on the same 
 evening, sent a notice of appearance to Mr. Bamsey’s at- 
 torneys in the suit, who refused to receive it, stating that 
 another attorney had already appeared, whose name they 
 declined to give. Prompt and energetic action on the 
 part of the defendants became thus necessary. 
 
91 
 
 
 The situation appears to me to have been most extraor- 
 dinary, embarrassing, and perilous. That the unprofessional 
 reader may properly appreciate it, some explanation in de- 
 tail is necessary. 
 
 An attorney who appears in a suit is an officer of the 
 court, and is presumed to do his duty. His appearance is 
 conclusive upon the party whom he undertakes to represent, 
 until it is set aside by an order of the court. If he assents 
 to any order or proceeding in the cause, although it may 
 have been entirely unauthorized by his client, it will not, as 
 a general rule, be afterward set aside, until the client who is 
 injured has shown affirmatively that the attorney is not of » 
 sufficient pecuniary ability to respond in damages for the 
 wrong occasioned by his unauthorized act. 
 
 It must have been obvious, then, to Field & Shearman 
 (who, with their clients, were kept in ignorance of the name 
 of the receiver until December 2d) that after the appearance 
 of an attorney for the company defendant, whose name the 
 plaintiff’s attorneys refused to disclose, the rights and inter- 
 ests of the company were exposed to a very uncommon peril ; 
 that to change this state of things and to be admitted them- 
 selves to appear for the company was a step of the first ne- 
 cessity and their manifest duty ; and to this end they must 
 ascertain the name of the unknown attorney. There was 
 but one mode of proceeding in the cause itself, by which 
 they could compel the plaintiff’s attorneys to disclose the 
 name of the unknown attorney who had appeared for the 
 company, and by which, after they had ascertained his name, 
 to cause themselves to be substituted in his place. If they 
 were to attempt to make any motion whatever in the cause, 
 before they had been substituted as attorneys for the com- 
 pany defendant, they were liable to be turned out of court 
 because another attorney had appeared for the company. 
 How, a motion to compel the plaintiff’s attorneys to disclose 
 the name of the unknown attorney who had appeared for the 
 company, would have to be made in the Sixth Judicial Dis- 
 trict, in which Delaware County is embraced. A motion 
 for this purpose, upon notice of at least eight days to the 
 
92 
 
 plaintiff’s attorneys, would have to be made to some judge 
 in that district. If such a motion were made and granted, 
 the plaintiff’s attorneys could cause further indefinite delay 
 by an appeal from the order, or by other means. When the 
 name of the unknown attorney had been at length obtained, 
 another motion would have to be made in the Sixth District, 
 upon a like notice of at least eight days to that attorney 
 himself, who could appear and oppose the motion, for his re- 
 moval and the substitution of Field & Shearman as the prop- 
 erly-authorized attorneys for the company. If the motion 
 were granted, compliance with this order might, in turn, be 
 * greatly delayed; and yet until all these preliminary steps 
 had been taken and fully accomplished, Field & Shearman, 
 the only authorized attorneys for the company in this suit, 
 could not do one act in the suit itself for the protection of 
 the company against the combined operation of the three or- 
 ders which had been obtained from Judge Murray by the 
 plaintiff. There was, however, one alternative. They could 
 bring a cross-suit against Mr. Ramsey, his attorneys, the un- 
 known attorney who had appeared, and the unknown re- 
 ceiver, and enjoin them all from proceeding to enforce the 
 three orders until the further order of the court. Ho one, I 
 think, can justly say that such an injunction was either un- 
 necessary or oppressive. Hor does it appear to me that 
 there is any ground whatever for the imputation that its 
 purpose was to put Mr. Ramsey’s original suit within the 
 control of Judge Barnard. He happened to be the only 
 judge holding a Special Term in this county, who was in 
 town on the evening when the injunction was for the first 
 time found to be necessary. 
 
 The papers in the cross-suit were prepared on the even- 
 ing of Hov. 24th, and were immediately presented by Mr. 
 Aaron J. Yanderpoel 1 to Judge Barnard, who signed an 
 injunction the next morning, with an order to show cause 
 on the 30tli why it should not be continued. This was 
 served on Mr. Ramsey’s Hew York attorneys on that day, 
 and on him at Albany on the next day. After the service 
 of this injunction, Mr. Ramsey’s Hew York attorneys ar- 
 
 1 A counsellor of well-known standing in this city. 
 
93 
 
 ranged with Mr. Runkle to withdraw his appearance 
 for the corporation, and informed Field & Shearman that 
 he had done so ; but they did not recognize the appear- 
 ance of Field & Shearman. Mr. Ramsey’s attorneys 
 in Yew York then caused the substitution of Peckham & 
 Tremaine, of Albany, in their place, as attorneys for the 
 plaintiff, and informed Field & Shearman that they had 
 ceased to be attorneys for the plaintiff, but would not 
 give the names of the attorneys substituted. Peckham 
 & Tremaine, however, notified Field & Shearman, on 
 the 29th, of their substitution, and Field & Shearman 
 obtained from Judge Balcom, on the 21st of December, an 
 order that their appearance for the company be accepted, 
 and that any notice of appearance from other attorneys be 
 disregarded. On the 21st of December, Judge Palcom, on 
 a motion made by Field & Shearman, at Binghamton, set 
 aside Judge Murray’s three orders made in Mr. Ramsey’s 
 original suit. From this order of Judge Balcom’s Mr. Ram- 
 sey appealed, but the appeal was withdrawn in September, 
 1870. Pending the appeal, Judge Murray’s orders remained 
 without operation until the case should be finally heard. 
 
 In May, 1870, as soon as Mr. Ramsey’s original suit was 
 at issue, Field & Shearman made an application to the Su- 
 preme Court at Delhi, to change the place of trial to the 
 County of Yew York, on account of the convenience of 
 witnesses. 1 This was opposed at first by Mr. Ramsey, on 
 an affidavit stating that he was under an injunction in the 
 cross-suit, and could not therefore take such measures as 
 were necessary to oppose the motion. This objection was 
 answered by Judge G-ray, of Elmira, now a member of the 
 commission of Appeals, then acting as counsel for the com- 
 pany, and was overruled by the Court. Mr. Ramsey then 
 asked for an adjournment. This was granted for two 
 weeks, the motion for changing the place of trial to be 
 heard at Binghamton on the 31st of May. Mr. Ramsey 
 appealed from this order, and then got a stay of the pro- 
 ceedings from Judge Clute, in Albany, but did not serve it 
 until the 30th of May, in order, as it appears from an affi- * 
 
 1 This application was made under a statutory provision 
 
94: 
 
 davit tliat liis counsel avowed in court, to prevent Field & 
 Shearman from having the stay set aside. When this stay 
 was served on Field & Shearman in New York, they obtained 
 an order from Judge Oardozo to show cause the next day 
 at Binghamton why the stay should not be set aside. The 
 next day was the day for hearing the motion at Binghamton 
 to change the place of trial. Judge Cardozo’s order to 
 show cause was served at Albany on Mr. Bamsey’s attorneys 
 in the afternoon of the 30th. At 9 p. m. that evening, a 
 train left Albany for Binghamton. Field & Shearman’s 
 messenger carried Judge Cardozo’s order and an affidavit of 
 service to Binghamton by that train. Mr. Bamsey’s at- 
 torneys, in Albany, on the same day, obtained from Judge 
 Beckham a counter-stay of Judge Cardozo’s order, and sent 
 it down to New York and had it served on Field & Shear- 
 man at ten minutes before ten o’clock a. m. on the 31st, 
 when the motion to change the place of trial of Mr. Bam- 
 sey’s original suit, and the motion to vacate Judge Clute’s 
 stay, were to be made at Binghamton at ten o’clock that 
 day. Mr. Shearman, who was then at Binghamton, brought 
 on both motions in ignorance, of course, of this last stay 
 granted by Judge Peckliam, and both were granted. Mr. 
 Bamsey’s counsel then moved, at Binghamton, before 
 Judge Murray, to vacate Judge Balcom’s order changing 
 the place of trial ; but Judge Murray held that the 
 motion must be made in New York. Mr. Bamsey’s attor- 
 neys then gave notice of motion before Judge Barnard, in 
 New York, to vacate Judge Balcom’s order. This motion 
 came on to be argued in August, and was denied ; and Bam- 
 sey’s attorneys thereupon appealed from this denial to the 
 General Term, by which the denial was afterward af- 
 firmed. 
 
 After Mr. Bamsey’s original suit had been transferred 
 to the County of New York, his attorneys noticed the 
 cross-suit for trial at a Special Term to be held by 
 Judge Barnard, in October. Field & Shearman then 
 noticed the original suit for trial at the same term. Both 
 cases were called in the order of the calendar on the 5th of 
 
95 
 
 October. Mr. Ramsey’s counsel moved to postpone both 
 for tlie term. The court refused this motion, and the cases 
 were set down for trial on the 20th of October. Mr. Ram- 
 sey’s counsel again moved to postpone for the term, on his 
 own affidavit. Mr. Field, appearing as counsel for the com- 
 pany and the first seven individual defendants, together with 
 counsel appearing for the other defendants, opposed this 
 motion. The principal grounds on which the motion to 
 postpone was urged were, that Mr. Ramsey had made no 
 preparation for trial, because he was under an injunction in 
 the cross-suit, and that his preparation required an extended 
 examination of the books of the company, and conferences 
 with numerous witnesses ; also that in a proceeding against 
 him for a contempt of the injunction he had appealed to the 
 General Term, and that if their decision should be against 
 him, he should appeal to the Court of Appeals, and that, with 
 this matter pending, the trial of the cases should not go on. 
 On the other hand, it was answered that the witnesses were 
 in Rew York, which was now the place of trial, that both 
 suits had been on the calendar from the beginnino; of the 
 term, that no application had been made by Mr. Ramsey for 
 a discovery or inspection of the books, that the nature of Mr. 
 Ramsey’s suit and the three orders which he had obtained, 
 had placed the company in a position in which it was abso- 
 lutely necessary to hold the plaintiff now to proof of his case, 
 which could be proved, if true, as well now as at any future 
 time. It was further answered, that he had not brought 
 himself within the rule respecting motions for postponement, 
 because his affidavit did not aver the existence of any facts 
 or suggest the name of a witness not known to him when 
 he made the allegations of his complaint ; and that he had 
 not shown by his affidavit that the books contained evidence 
 in his favor. It was further answered that, as to the injunc- 
 tion in the cross-suit, the judge who granted it had set the 
 case down for trial on the 20th, and that it was not to be 
 supposed that Ramsey would be punished for a contempt in 
 violating that injunction bv makiug preparation in a case the 
 trial for which had been so appointed ; that he might have 
 
96 
 
 applied on the 5tli of October for a preliminary examination 
 of witnesses or of the books, and that he had made no such 
 application. It was also answered, that he had already dis- 
 obeyed the injunction on several occasions which were de- 
 tailed and described by the counsel for the company and his 
 associate. 
 
 As a matter of law and practice, I take it for granted 
 that, by noticing the case for trial, the counsel for the com- 
 pany had waived the injunction to this extent that they 
 could not proceed for a violation of it after that notice ; that 
 inasmuch as the court, on the 5th of October, had set the 
 cause down for trial on the 20th, it was not to be presumed 
 that the court would entertain any application to punish 
 Mr. Ramsey for a contempt in making preparation for a 
 trial which the court had ordered, and that as Mr. Ramsey 
 had shown that he could previously disregard the injunc- 
 tion, it ought not to have been considered now as an obstacle 
 to a trial. But it appears, on the proceedings, that in order 
 to obviate all objection on account of the injunction, Mr. 
 Field offered in court a stipulation that the injunction in 
 the cross-suit should not be held to interfere with the trial 
 or Mr. Ramsey’s preparation for it. Thereupon the court 
 refused the postponement, and the cause was set down for 
 trial peremptorily on the 25th. Mr. Ramsey subpoenaed 
 several of the directors and officers of the company for that 
 day, and they were in attendance. When the case was 
 called, his counsel again moved to postpone. After argu- 
 ment on both sides, embracing the entire history of both 
 cases, the court denied the motion to postpone, and ordered 
 the trial to proceed. Mr. Ramsey’s counsel then asked leave 
 to withdraw for consultation, which was granted. In about 
 half an hour they returned into court, and objected to trying 
 the case before the judge then holding the court, because he 
 was prejudiced. Thereupon the court, on motion of the de- 
 fendants’ counsel, ordered the complaint to be dismissed 
 with costs, with an extra allowance to be fixed by the court 
 before the entry of judgment, the extra allowance to be fixed 
 on the 14tli of November and the judgment to be thereafter 
 
97 
 
 entered, but with leave to the plaintiff then to come in and 
 try the cause. The order was, in fact, not entered, but was 
 noted on the clerk’s minutes. The defendant’s attorneys 
 were about to enter an order and to give notice that the ex- 
 tra allowance would be fixed on the 14th of November, but 
 with leave to the plaintiff then to come in and try the cause ; 
 but the plaintiff anticipated this by a notice of motion, ac- 
 companied by an order staying all proceedings. On the 23d 
 of November the plaintiff obtained an order at Chambers, 
 setting aside the incomplete proceeding of October 25th. 
 From this order the defendants appealed to the General 
 Term, which has the matter still under advisement. 
 
 The mere statement of these proceedings in the order in 
 which they occurred seems to me sufficient to dispose of the 
 charges that Mr. Field brought the cross-suit against Mr. 
 Ramsey for the purpose of oppressing him; and that he 
 forced Mr. Ramsey to trial of his original suit with his 
 hands tied. In regard to the cross-suit, it certainly cannot 
 be said to be settled law in this State, that an injunction 
 may not, in any case, be granted in one judicial district 
 of the Supreme Court, to restrain the proceedings in another 
 suit instituted in another judicial district. And as to the 
 general principles and practice which regulate the exercise 
 of equitable jurisdiction by judges of coordinate authority, it 
 is well settled that there are two classes of cases in regard 
 to which a discrimination is to be made. In all ordinary 
 cases where a Court of Equity is invoked to act upon pro- 
 ceedings in another court of coordinate jurisdiction, I un- 
 derstand it to be the practice of judges to give effect to the 
 comity that is due to each other. But there may be cases 
 in which mere comity would defeat the ends of justice. 
 Where there is reason to believe that a suit is fraudulent, 
 where great mischief would ensue from a forbearance to use 
 the restraining powers of a Court of Equity, and where the 
 wrong that is threatened would inevitably result from an 
 abuse of the process of another court, I understand that 
 an injunction may issue, not to act upon the other court, 
 but to act upon the party who is misusing its process. 
 
 7 
 
98 
 
 In regard to “ forcing a party to trial with his hands 
 tied,” I confess that I do not appreciate the doctrine which 
 would oblige counsel to refrain from using all available and 
 legitimate weapons of the law to defeat a suit which he had 
 reason to believe, and did believe, was of a character to 
 which no indulgence should be extended. But it is not 
 necessary to enlarge upon this topic, because I do not think 
 that Mr. Bamsey had any just reason to complain of Mr. 
 Field, when the latter finally insisted that the case should 
 be either tried or dismissed. And as to the charge that has 
 been made against Mr. Field, of having for a wrongful pur- 
 pose procured a transfer of this case into this county, in 
 order to get it under the control of Judge Barnard, it is like 
 most of the other charges which I have had occasion to ex- 
 amine. It begins by assuming the corruption of the Judge, 
 and the willingness of the counsel to avail himself of that 
 corruption, and then proceeds to the conclusion that, al- 
 though there existed a statute provision authorizing the 
 place of trial to be changed, the counsel could not have 
 made an honest use of that provision. I do not think I 
 ought to occupy more of the reader’s time in discussing such 
 a proposition. 
 
 In reviewing these proceedings and what has been said 
 about them, I have been much impressed by the fact that 
 this community is now brought face to face with direct impu- 
 tations of corruption made in the public prints against one of 
 its judges, over the signatures of known members of the Bar. 
 I have had to deal, however, with the alleged existence and 
 character of that corruption, only by reason of what is com- 
 plained of .in Mr. Field, namely, that he ought to have re- 
 frained from applying to the particular judge who has been 
 named, to obtain orders and injunctions in the interest of 
 persons with whom it is alleged that tins judge has relations 
 that are tantamount to a corrupt connection, because, as 
 is alleged, he knew of that connection. If the judge in 
 question is a man who is capable of using his office con- 
 trary to law and to what is right, to promote the interests 
 of anybody, which I for one do not believe, it is wrong 
 
99 
 
 for the other judges who sit with him on the bench to 
 transact judicial business with him. It was wrong for the 
 Governor to assign him as one of the Judges in General 
 Term for five years — a most responsible and important 
 position. Hay, it was doubly wrong for the people to elect 
 him to the bench, as they have done twice by majorities 
 that have shown that he is not indebted for his position 
 solely to a party. If he is a corrupt judge, the people, their 
 Executive, and his Associate Judges, are all engaged in a 
 general conspiracy against the public virtue and honor. In 
 the name of all that is pure and sacred, let us have an end 
 of these imputations, or else let them be proved to be true 
 by some other form of proceeding than by attacking a lead- 
 ing member of the Bar for appearing before the judge who 
 is the subject of such suspicions. Instead of having gone 
 out of his way to seek a judge said to be notoriously favor- 
 able to his clients, I should infer from the proceedings that 
 I have had occasion to examine, that Mr. Field has paid no 
 attention to the inquiry whether the judge in question was 
 on the bench, that he has acted just as he must have acted 
 if he had applied to any other judge, and that there is no 
 ground whatever for charging him with a conscious purpose 
 to avail himself of a supposed willingness of Judge Barnard 
 to fulfil the function of “ the favorite judge ” of his clients. 
 I think this was the proper course to pursue ; for I cannot 
 concur in the opinion that he should have avoided Judge 
 Barnard, because of any prevalent scandal. I do not see- 
 how the judicial business of this community is to be trans- 
 acted, if censure of Mr. Field on this ground is to prevail. 
 
 The following is a summary of the conclusions at which 
 I have arrived : 
 
 1. That the contest to obtain a majority of the Board of 
 Directors of the Albany & Susquehanna Bailroad, in the 
 summer of 1869, originated between two parties among its 
 stockholders and directors, and not with any person con- 
 nected with the Erie Bailway Company ; but that one of 
 those parties, after the contest had commenced, sought the 
 aid of Messrs. Fisk & Gould, officers of the Erie Bailroad, 
 
100 
 
 in the purchase of stock preparatory to the election, which 
 aid was afforded in a lawful and unobjectionable manner. 
 
 2. That the several orders granted by Judge Barnard, 
 directing the transfer of certain stock to Wilber, directing 
 the suspension of Ramsey from the offices of President and 
 director, appointing Fisk & Courter receivers of the road 
 and its property, and issuing writs of assistance to enforce 
 their title, and also the several orders made by Judge Clerke, 
 removing the inspectors of election chosen in 1868, and con- 
 ditionally restraining votes on 9,500 shares of stock claimed 
 to have been subscribed for on the 5th of August, were all 
 duly and properly made and granted, and were made ne- 
 cessary by incidents successively arising in the progress of 
 the contest. 
 
 3. That the appointment of Mr. F idler as receiver of cer- 
 tain stock claimed by Groesbeck and others, was obtained 
 by Field & Shearman, and was duly and properly made by 
 Judge Barnard, for the protection of important interests of 
 the company, and not for the purpose of putting the votes 
 on that stock within the control of one of the parties to the 
 contest, to be voted upon by them or in their interest at the 
 election of directors. 
 
 4. That the act of Mr. Fuller in voting at the election 
 on the stock held by him as receiver, was made necessary 
 by an unexpected and unforeseen occurrence, and was under 
 the circumstances correct. 
 
 5. That the suit instituted by Field & Shearman, for the 
 purpose of compelling a restoration of the books and papers 
 of the company to its office, from which they had been clan- 
 destinely removed, was instituted by the express and formal 
 authority of the Executive Committee of the Board of 
 Directors, and of the Vice-President acting as President ; 
 that the order of arrest issued therein was duly and properly 
 issued, in order to compel the production of the books and 
 papers ; that the arrest of Messrs. Ramsey, Phelps, and 
 Smith, at the rooms where the election was to be held, and 
 just as the first stockholders’ meeting was about to be 
 organized, was accidental and unpremeditated ; that the 
 
101 
 
 sheriff alone was responsible for it, and that none of the 
 counsel or attorneys of the Church party directed it or knew 
 that it was likely to happen ; that bail was procured and 
 accepted on the spot ; that no material restraint was exer- 
 cised beyond the sheriff’s request to the parties arrested not 
 to leave the building until bail-bonds had been executed ; 
 and that the arrest prevented none of the parties from par- 
 ticipating in the election. 
 
 6. That both parties were attended at the election by a 
 considerable number of persons who were not stockholders ; 
 that those who so came in the interest of the Church party, 
 not exceeding thirty in number, were not brought there for 
 the purpose of overawing the meeting, and did not in fact 
 by their presence exclude any stockholder in the Ramsey 
 interest from the room ; that each of them held a genuine 
 proxy for some stockholder in voting at the preliminary 
 organization ; that their conduct was not disorderly ; and 
 that the evidence that has been taken on this subject does 
 not warrant the belief that the room was preoccupied by a 
 crowd of “ roughs,” in the interest of the Church party, for 
 the purpose of carrying the election by violence or fraud. 
 
 7. That whatever may be the true legal conclusions re- 
 specting any question of law or practice involved in any of 
 the acts done or advice given by Mr. D. D. Field, or any 
 member of the firm of Field & Shearman, 1 in any of these 
 proceedings, no just imputation of professional impropriety 
 rests upon them or either of them on account of any such 
 act or advice, either in respect to the proceedings connected 
 with the contest for the election of directors of the Albany 
 and Susquehanna Railroad Company, or in respect to any 
 act done or advice given by them or either of them, in 
 defending the Erie Railway Company and certain of its 
 directors against the suit brought by Joseph H. Ramsey, in 
 1869, or in the cross-suit against him. 
 
 I cannot dismiss this subject — to which I do not mean 
 
 1 David Dudley Field, Dudley Field, Thomas G. Shearman, and John W. 
 Sterling, are partners, the first acting only as counsel, and the last three acting 
 as attorneys, under the name of Field & Shearman. 
 
102 
 
 hereafter to revert, unless some statement that I have made 
 shall be called in question — without expressing my opinion 
 that such discussions, charges, and imputations as those 
 which I have been obliged to examine, have no tendency to 
 promote professional integrity and honor. The surest way 
 to do that, is to recognize and maintain the distinction be- 
 tween counsel and client, and not to identify them ; for 
 while, on the one hand, it is of the utmost importance to a 
 sound administration of justice that a lawyer should be 
 allowed to do every thing for his client that he can honestly 
 do, it is on the other hand perfectly clear that no lawyer 
 can act freely and fearlessly within the limits of that princi- 
 ple, if he is to be subjected to a criticism which seeks for 
 bad motives to the exclusion of the common presumption of 
 good ones ; which refuses to regard his conduct by the light 
 of the law itself, and seeks to explain it by the suggestion 
 that he acted for parties whose objects and methods are 
 supposed to be subjects of general suspicion. There can be 
 no safer rule for a lawyer to follow, than to assume it to be 
 right to do for any man what the law allows to be done. 
 In his efforts to reach what is lawful, and to apply it to the 
 interests of his clients, he must undoubtedly not divest him- 
 self of a sound conscience ; and he is in truth in the less 
 danger of doing so, in proportion to the extent of his learn- 
 ing and his ability to discover and apply the law, for the 
 law, it must not be forgotten, is the measure of the rights 
 of all men in civil society. Nor is it just or rational to 
 hold a lawyer to a moral responsibility for acting on what 
 may afterward prove to be the wrong side of a legal ques- 
 tion, or the failing side of a legal controversy. He is not 
 responsible for the correctness of what he urges as law, 
 because it is the function of a court to declare the law, 
 and the function of the advocate to help the court to dis- 
 cover it, by presenting one side of the question, while 
 precisely the same function is performed by another 
 advocate on the opposite side. Neither is a lawyer morally 
 responsible, in the use of legal process, for any thing 
 but a conscious, fraudulent abuse of such process, by 
 
103 
 
 employing it and perverting it to accomplish a purpose 
 other than that for which the law has provided it. For this 
 he certainly is responsible ; just as one is, who uses a weap- 
 on maliciously to kill or wound another, which the law 
 allowed to be created for the lawful purpose of self-defence. 
 But in neither case is the unlawful and malicious abuse of 
 a thing to be confounded with its lawful and proper use. 
 
 In submitting to the reader the results of my investi- 
 gation into the complaints that have been made against Mr. 
 Field, it is perhaps proper for me to say that, when I began 
 them, I had known him for many years, as one lawyer 
 knows another, but that we had never been intimate. Our 
 relations were mutually respectful, and nothing more. In 
 the prosecution of my inquiries into the numerous and in- 
 volved controversies which I have had to examine, I have 
 found him constantly ready to afford me any information 
 that I required ; and I hope it is scarcely necessary for me 
 to say that, I have endeavored to make my inquiries as 
 searching as the subject demanded that they should be. 
 With regard to the three gentlemen who stand before the 
 public as his prominent accusers, I can conscientiously say 
 that I have sought to impugn the motives of none of them ; 
 and that I have therefore not sought to inquire for, or 
 cared to know, whether there are or are not any relations 
 which have caused them to view Mr. Field’s conduct unfa- 
 vorably, or to make the strictures which they have made. 
 But as they are all by a good many years my juniors at the 
 bar, I may perhaps suggest that, if their experience has not 
 already taught them, further experience will teach them, 
 that to the merits of most legal controversies there are two 
 sides ; and that, when a question is made concerning the 
 professional conduct of those employed upon one of those 
 two sides, there are important rules of judgment which 
 in this instance they may have possibly failed to apply in 
 making their strictures. And I may add, that those rules 
 are to be derived not only from the law of the land, but 
 also from a moral code that has a higher than any mere 
 human sanction. For I do not understand the command, 
 
104 
 
 “ Judge not that ye be not judged ; for with what judgment 
 ye judge, ye shall be judged, and with wdiat measure ye 
 mete it shall be measured to you again,” to have been in- 
 tended to prevent us from forming and expressing opinions 
 on the conduct of our fellow-men. He who gave that 
 command, was well aware that judgment is at once a 
 human function and a human duty, without which civil 
 society cannot be carried on, whether that judgment is by 
 a public official appointed to pass upon a charge of a formal 
 nature, or whether it is by the private voice of individuals 
 passing upon a less formal accusation. But I do under- 
 stand that this great precept was intended to embody a rule 
 which is alike to govern the judge on the bench, and the 
 citizen who contributes in his degree to the formation of 
 public opinion. I understand that this golden rule appeals 
 not to charity, but to righteousness ; not to mercy, but to a 
 definite law and standard of determination. It is as if it 
 had been said: Judge not unrighteously, lest ye be judged 
 yourselves unfairly. Put away prejudice and sophistry and 
 passion ; form your conclusions by the proper laws of a 
 rational belief; exclude no proper motives when they are 
 consistent with the acts on which you are called to pro- 
 nounce ; believe in human integrity and virtue, until you 
 are compelled by the immutable laws of right and wrong 
 to believe that they have been overborne by temptation or 
 swept away by the eagerness with which a rightful object 
 may be pursued. Mete to others the same measure which 
 ye demand for yourselves, for it is not lawful to judge of 
 others as ye would not yourselves be judged. 
 
 ADDENDUM. 
 
 [Note. — It should have been stated on page 28, that it is the practice in this 
 judicial district, when a particular litigation has been commenced before one 
 judge, for the other judges to refer all subsequent applications to him.] 
 
105 
 
 APPENDIX. 
 
 SUPEEME COPET. 
 
 The Albany & Susquehanna 
 Eailroad Company 
 
 against 
 
 Joseph H. Eamsey et al. 
 
 City and County of Albany, ss. : 
 
 Jonathan E. Herrick, being duly sworn, says : 
 
 1. During the whole of the year 1869 I was a director 
 of the Albany & Susquehanna Eailroad Company, and am 
 still such director, and throughout the whole of that year, 
 until the 7th day of September, I was the Vice-President 
 of that company. I claim to have been Vice-President con- 
 tinuously ever since that time ; but my right to the position 
 since then has been the subject of dispute. My title to the 
 office of director during the whole of that year has been 
 adjudged to be perfect, and no appeal has been taken from 
 that adjudication so far as I have any knowledge or belief. 
 
 2. Erom about the 4th day of August to the 7th of Sep- 
 tember, 1869, the defendant, Joseph H. Eamsey, although 
 nominally President of the above-named company, was en- 
 joined by this court from acting as such, and so far as I 
 have any opportunity to observe he did not act as such, and 
 
10G 
 
 believing that he had ceased to act, I considered myself the 
 acting President of the said company, and assumed in good 
 faith the exercise of the President’s duties. The said Ram- 
 sey was also absent from the City of Albany, or was so con- 
 cealed therein that he could not be found, during a large 
 part of the period last above mentioned, and I am informed, 
 and believe, that he absconded from the said city with in- 
 tent to avoid service of process of this court issued to the 
 Sheriff of Albany. 
 
 3. On or about the fall day of August, 1869, I discov- 
 ered that the most important books of the said company 
 had been carried away from its office. I inquired of the 
 defendant Phelps what had become of said books, and he 
 disclaimed having any knowledge concerning them. I was 
 afterward informed, and believe, that he and the said Ram- 
 sey, Pruyn, and Smith, had cooperated together in carrying 
 off and concealing the said books, and I was further in- 
 formed, and believed, that the books had been carried out 
 of the State of JSTew York. 
 
 4. After I had assumed the duties of President, as afore- 
 said, I was served with a paper purporting to be an injunc- 
 tion restraining me from acting as a director of the said 
 company, and I took no action as such until on and after 
 the 31st day of August, when an order was made by this 
 court in the action wherein said injunction was granted, 
 permitting me and the other parties to such action to take 
 proceedings for procuring the production and deposit of the 
 said books, and until the order was made I was advised by 
 my counsel, and believed, that I could not safely take any 
 steps for the recovery of the said books. 
 
 5. Immediately after the order last above mentioned had 
 been made, I instructed Messrs. Field & Shearman to take 
 such measures as in their judgment might be most effectual 
 for the purpose of recovering the said books and compelling 
 their deposit in the office of the said company at Albany. 
 A meeting of the Executive Committee of the said company 
 was held, at which, as I am informed and believe, a resolu- 
 tion was passed authorizing Field & Shearman to com- 
 
107 
 
 mence legal proceedings for the recovery of the said hooks, 
 and this resolution was fully approved and sanctioned by 
 me. Having been informed, and believing that said books 
 were concealed in the safe of a hotel called the American 
 House, in Pittsfield, Massachusetts, I went with Jacob Leon- 
 ard and Martin D. Conway to Pittsfield, Massachusetts, on 
 the night of the 31st day of August, 1869, and there found 
 that John W. Yan Valkenburgh, the former Superintendent 
 of the Albany & Susquehanna Pailroad, and a person who 
 was entirely in the confidence and subservient to the will 
 of the defendant, Joseph H. Pamsey, had been there on two 
 different occasions, on one of which occasions he wrote a 
 false name in the said hotel register. I was further in- 
 formed and believed, and a number of circumstances existed 
 which plainly indicated, that the books of said company 
 were concealed in or near said hotel, and that the proprietor 
 of the said hotel intimated his willingness to reveal the 
 hiding-place of the said books if he was paid a sufficient 
 sum of money. I thereupon consulted counsel in Massachu- 
 setts as to the expediency and practicability of recovering 
 possession of the books by action there, and a writ of re- 
 plevin was actually issued ; but the laws of Massachusetts 
 did not allow the breaking open of the safe in said hotel in 
 which it was believed that the said books were then con- 
 cealed, and in consequence the process was entirely inef- 
 fectual. 
 
 6. After the failure of legal process in Massachusetts, 1 
 was advised by counsel, and believed, that the most effectual 
 mode of compelling the production of the said books would 
 be by the commencement of an action for damages for this 
 concealment against the defendants in this action, whom I 
 then believed to have been concerned in the removal of the 
 said books, and who have all since admitted that they were 
 concerned in, or cognizant of, such removal and conceal- 
 ment, and approved of the same ; and accordingly 1 author- 
 ized Field & Shearman to commence this action, and did so 
 in good faith, believing that it was necessary for the purpose 
 of compelling the deposit of the said books in the office of 
 the said company. 
 
108 
 
 7. I liad no intention of using the process of this court 
 in this action for the purpose of preventing any person from 
 taking part in the annual election of directors of the said 
 company, nor did I delay any directions concerning this suit 
 for that purpose or for any other ; on the contrary, I used all 
 diligence, immediately after obtaining leave to do so, for the 
 purpose of discovering said hooks, and I am informed and 
 believe that the Executive Committee was got together as 
 soon as it was possible ; that, owing to the fact that no two 
 of them reside in the same place, it required some time to 
 get together the three members, who actually met and 
 passed the resolution aforesaid ; and I am further informed 
 and believe that the utmost diligence was used by the coun- 
 sel who were authorized by the terms of the said resolution, 
 to prosecute legal proceedings for the recovery of the said 
 books ; that they did not receive a copy of the resolution 
 aforesaid until Saturday, the 4th day of September, 1869 ; 
 that they had not time thereafter to draw the papers neces- 
 sary for the commencement of this action until Monday, the 
 6th of September ; and that they obtained an order of arrest 
 in the action at the earliest possible moment on that day, 
 and sent it to Albany by the very first train leaving after it 
 was obtained. 
 
 8. I know William II. Morgan, who was one of the 
 counsel employed by Field & Shearman in this action. I 
 was in Albany on the 6th and 7tli of September, 1869, and 
 I know that William H. Morgan did not arrive at the hotel 
 where David Dudley Field and Thomas Gr. Shearman were 
 lodging, until a very late hour at night, certainly not -until 
 after eleven o’clock, and it was therefore not possible to 
 serve any papers which he brought until the following day. 
 I was then informed, and believe, that he brought with him 
 the papers in this action, including the order of arrest. 
 There was no collusion between the Sheriff of Albany and 
 myself, and I believe there was none on the part of any- 
 body else with respect to the mode of service of the said 
 papers ; and I was then informed and believed, and still be- 
 lieve, that the same were given to the sheriff, in the regu- 
 
109 
 
 lar way at an early hour in the morning of the 7th day of 
 September, 1869, and that he was left to use his own discre- 
 tion, free from all advice or control in respect to the service 
 of the said papers. 
 
 9. I then believed, and still believe, that the injury to 
 the plaintiff in this cause, by reason of the permanent con- 
 cealment of the said books, would be very great, and that 
 the amount of bail named in the said order of arrest was not 
 unreasonable under the circumstances. I was then in- 
 formed and believed, and still believe, that the said books 
 showed the defendant, Joseph II. Ramsey, to have overdrawn 
 his account witli the said company in an amount exceeding 
 twenty thousand dollars, and to be indebted to the said 
 company in about one hundred thousand dollars more 
 for subscriptions upon stock ; and I then believed and still 
 believe, that if the said books had been permanently con- 
 cealed or destroyed, the plaintiff herein would have no evi- 
 dence of the said indebtedness, and the said Ramsey would 
 have escaped all liability for the whole or a large part 
 thereof, and particularly for the amount of over twenty 
 thousand dollars, which he had, as I believe, drawn in cash 
 from the funds of the said company. 
 
 10. Although it has been since stated by the defendant 
 Phelps, that he and Wilber F. Ramsey, the son of the de- 
 fendant Joseph H. Ramsey, brought the said books to the 
 office of the company on the night of the 6th of September, 
 and secretly drew them up with a rope and a basket into 
 one of the rear windows of the office, that fact was entirely 
 unknown to me, and as I believe unknown to all the coun- 
 sel engaged in this suit on behalf of the plaintiff until long 
 afterward ; and the fact that the books were in the office of 
 the company was not made known to me, or to any one 
 acting with me, so far as I have any knowledge and belief, 
 until long after the service of the papers in this action, and 
 after the annual election had closed ; and I believe that the 
 return of the said books was made in consequence of appre- 
 hensions entertained by the defendants herein of legal pro- 
 ceedings in the nature of this suit, and they were returned 
 
110 
 
 in tlie secret manner aforesaid, for the purpose of enabling 
 the defendant Phelps to obtain control thereof at the elec- 
 tion, and to enable him by means of such control to give 
 possession exclusively to one party at such election, and 
 thus to enable them to conduct the same fraudulently, and 
 to receive fraudulent votes. 
 
 11. Since the said Ramsey and his associates have been 
 suffered to have control of the affairs of the said company, 
 subsequent to the decision of Mr. Justice E. Darwin Smith, 
 at Rochester, their evil motives have been more fully de- 
 clared by acts and resolutions, by which stock and money 
 of the said company, to large amounts, have been wrong- 
 fully voted to the said Ramsey. 
 
 12. William A. Rice, who has made an affidavit herein 
 dated May 20, 1870, was, as this deponent is informed and 
 believes, one of the conspirators with the said Ramsey, in 
 all the said unlawful proceedings. 
 
 13. Of the fourteen directors of the said company at 
 the time of the said election, eight were opposed to the said 
 Ramsey and his associates, and disapproved of the abstraction 
 of the books, and approved of the bringing of this action. 
 
 14. Azro Chase, Jacob Leonard, and David Wilber, were 
 perfectly aware of the contents of the resolution of the Ex- 
 ecutive Committee of September 3, 1869, and as I am in- 
 formed and believed, it is false that they or either of them 
 claim or pretend that they did not know the contents of 
 said resolution, or supposed that they only authorized some 
 proceedings, to recover possession of the books. 
 
 15. The greater portion of the business of the company, 
 
 until the litigation which arose in the summer of 1869, was 
 conducted, as I am informed ana believe, by the Executive 
 Committee who brought and defended suits for the compa- 
 ny, made contracts, and did all other necessary acts to con- 
 duct its affairs, which were afterward as a matter of form 
 ratified by the directors. J. R. Herrick. 
 
 Sworn before me, this 30th day of May, 1870. 
 
 Martin D. Conway, 
 
 Commissioner of Deeds, Albany , N. Y. 
 
Ill 
 
 SUPREME COURT. 
 
 The Albany & Susquehanna 
 Railroad Company 
 against 
 
 Joseph H. Ramsey 
 and others. 
 
 Albany City and County, ss. : 
 
 Jacob Leonard, being duly sworn, says : 
 
 1. I was a director of the Albany & Susquehanna Rail- 
 road Company from September, 1868, until the 7th day of 
 September, 1869, my title to said office during all that time 
 being undisputed. I claim to have been reelected a direc- 
 tor on the 7th of September last, and my title is the subject 
 of dispute. 
 
 2. On or about the 7th day of August, 1869, 1 discovered 
 that the most important books of the said company had been 
 carried away from its office. I inquired of the defendant 
 Phelps what had become of said books, and he disclaimed 
 having any knowledge concerning them. I was afterward 
 informed and believed that he and the said Ramsey, Pruyn, 
 and Smith, had cooperated together in carrying off and con- 
 cealing the said books ; and I was further informed and be- 
 lieve that the books had been carried out of the State of 
 Rew York. 
 
 3. At about the same time I was served with a paper 
 purporting to be an injunction restraining me from acting 
 as a director of the said company, and I took no action in 
 relation to the matters in controversy herein until on and 
 after the 31st day of August, 1869, when an order was made 
 by this court in the action wherein the said injunction was 
 
112 
 
 granted, permitting me and tlie other parties to such actions 
 to take proceedings for procuring the production and deposit 
 of the said hooks ; and until the said order was made, I was 
 advised by my counsel and believed that I could not safely 
 take any steps for the recovery of the said books. 
 
 4. A meeting of the Executive Committee of the said 
 company was called at an early day as possible after the 
 entry of the order last above mentioned, at which meeting 
 a majority of the said committee were present, consisting of 
 Azro Chase, David Wilber, and myself ; and at said meeting 
 a resolution was duly passed in the terms set forth in the 
 affidavit of William A. Rice, upon which a motion has been 
 made in this cause. I have never claimed or pretended that 
 I did not know the contents of the resolution so passed ; but, 
 on the contrary, I knew what the said resolution was, and 
 voted for the same. 
 
 5. Having been informed and believing that said books 
 were concealed in the safe of a hotel called the American 
 House, in Pittsfield, Massachusetts, I went with Jonathan 
 R. Herrick and Martin D. Conway to Pittsfield, Massachu- 
 setts, on the night of the 31st day of August, 1869, and 
 there found that John W. Yan Yalkenburgh, the former 
 Superintendent of the Albany & Susquehanna Railroad, and 
 a person who was entirely in the confidence and subservient 
 to the will of the defendant, Joseph H. Ramsey, had been 
 there on two different occasions, on one of which occasions 
 he wrote, as I am informed, a false name in the said hotel 
 register. I was further informed and believed, and circum- 
 stances plainly indicated, that the books of the said company 
 were concealed in or near said hotel at which the said Yan 
 Y alkenburgh lodged when there, and the proprietor of that 
 hotel intimated his willingness to reveal the hiding-place of 
 the said books if he was paid a sufficient sum of money. 
 
 6. I thereupon consulted counsel in Massachusetts as to 
 the expediency and practicability of recovering possession 
 of the books by action there, and a writ of replevin was 
 actually issued, but that the laws of Massachusetts did not 
 allow the breaking open of the safe in said hotel in which it 
 
113 
 
 was believed that said books were then concealed, and in 
 consequence the process was entirely ineffectual. 
 
 7. After the failure of legal process in Massachusetts, I 
 and the members of the Executive Committee were advised 
 by counsel, and believed that the most effectual mode of 
 compelling the production of the said books would be by 
 the commencement of an action for damages similar to the 
 present action against the defendants herein, whom I then 
 believed to have been concerned in the removal and conceal- 
 ment of the said books, and who have all, with the exception 
 of the defendant Pruyn, since admitted, as I am informed, 
 that they then were concerned in or cognizant thereof, and 
 approved of the same, and for this reason, and believing 
 that my duty as a director and officer of the said company 
 required me to do so, and acting in good faith, believing 
 such a measure to be necessary, I voted for the resolution 
 authorizing Field & Shearman to commence legal proceed- 
 ings, and approved of the commencement of this action as 
 a means of compelling the deposit of the said books in the 
 office of the said company. I believe that my associates 
 acted also in perfect good faith in the matter, and I know 
 that I did not and I believe that they did not have any in- 
 tention whatever of using this suit or the process to be ob- 
 tained therein as a means of interfering with the freedom 
 of the annual election of directors of the said company, or for 
 any other purpose not consistent with perfect good faith. 
 
 8. I did not, and I am informed and believe that no 
 other officers of the said company did, give any directions 
 for the delay of this suit for any purpose whatever, and I 
 and my two associates on the Executive Committee assem- 
 bled together at the earliest possible time after the order 
 was made, allowing us to do so, for the purpose of taking 
 the action contemplated by the said order, but we were un- 
 able to assemble together until the 3d of September, 1869, 
 and it was impossible to send a certified copy of the resolu- 
 tion passed by the committee to the counsel therein named, 
 so as to reach them before Saturdav, the 4th of September. 
 1869. 
 
 8 
 
114 
 
 9. I am informed and believe that the judge holding 
 Chambers in the Supreme Court, in the City of New York, 
 seldom or never sits in court many minutes after noon on 
 Saturday, and that the counsel named in said resolution had 
 not time after receiving a copy thereof which was necessary 
 to enable him to proceed to draw the papers required for 
 the commencement and prosecution of this action, so as to 
 be able to present them regularly to a judge of this court in 
 said city until Monday the 6th of September, 1869 ; that 
 they obtained an order of arrest in this action at the earliest 
 possible moment on that day, and sent it to Albany by the 
 very first train leaving therefor, and that the said order 
 of arrest and the other papers in this action did not reach 
 the City of Albany until about midnight on that day. 
 
 10. There was no collusion between the Sheriff of Albany 
 and myself, and I believe there was none on the part of 
 anybody else with respect to the mode of service of the said 
 papers ; and I was then informed and believed, and still be- 
 lieve, that the same were given to the sheriff in the regular 
 way at an early hour in the morning of the 7 th day of Sep- 
 tember, 1869, and that he was left to use his own discretion 
 free from all advice and control in respect to the service of 
 the said papers. 
 
 11. I then believed and still believe that the injury of 
 the plaintiff in this cause by reason of the permanent con- 
 cealment of the said books would be very great, and that 
 the amount of bail named was not unreasonable under the 
 circumstances. I was then informed and believed, and still 
 believe, that the said books showed the defendant, Joseph H. 
 Ramsey, to have overdrawn his account with the said com- 
 pany in an amount exceeding twenty thousand dollars, and to 
 be indebted to it in about one hundred thousand dollars more, 
 for subscriptions upon stock, and I then believed and still be- 
 lieve that if the said books had been permanently concealed 
 or destroyed, the plaintiff herein would have no evidence 
 of the said indebtedness, and the said Ramsey would have 
 escaped all liability for the whole or a large part thereof, 
 and particularly for the amount of over twenty thousand 
 
115 
 
 dollars, which he had as I believe drawn in cash from the 
 funds of the said company. 
 
 12. Although it has since been stated by the defendant, 
 Phelps, that he and Wilber F. Ramsey, the son of the de- 
 fendant, Joseph H. Ramsey, brought the said books to the 
 office of the company on the night of the 6th of September, 
 and secretly drew them up with a rope and a basket into 
 one of the rear windows of the office ; that fact was entirely 
 unknown to me, and as I believe unknown to all the counsel 
 engaged in this suit on behalf of the plaintiff until long 
 after ; and the fact that the books were in the office of the 
 company was not made known to me, or to any one acting 
 with me, so far as I have any knowledge or belief, until long 
 after the service of the papers in this action, and after the 
 annual election had closed ; and I believe that the return 
 of the said books was made in consequence of apprehensions 
 entertained by the defendant herein of legal proceedings in 
 the nature of this suit, and that they were returned in the 
 secret manner aforesaid for the purpose of enabling the de- 
 fendant, Phelps, to obtain control thereof at the election, 
 and to enable him by means of such control to give posses- 
 sion exclusively to one party at such election, and thus to 
 enable them to conduct the same fraudulently and to re- 
 ceive fraudulent votes. 
 
 13. The Executive Committee of the plaintiff herein had 
 full power and authority to direct the action to be com- 
 menced against the defendants herein, and against any other 
 persons in the name of the plaintiff herein. 
 
 14. Every allegation of fraud or bad faith contained in 
 the affidavit of William A. Rice herein is untrue of my own 
 knowledge so far as the same regards me ; and I am in- 
 formed and believe that every such allegation is untrue in 
 respect to my other associates on the Executive Committee 
 who voted for the resolution aforesaid. The allegations of 
 the said affidavit with respect to the intention with which 
 this suit was commenced are entirely false, and are made 
 by the said Rice without having any credible information 
 upon the subject whatever. The allegations of the said af- 
 
116 
 
 fidayit to the effect that this action was commenced and 
 prosecuted contrary to the wishes of a majority of the direc- 
 tors of the said company, and without its authority, and 
 that Field & Shearman were never employed by the said 
 company, and never had any authority to act for it, are, and 
 each of them is, untrue. The Executive Committee author- 
 ized was appointed by the directors of the said company, 
 and authorized to act in the place of the Board of Directors 
 when the same was not in session, and at least one-half of 
 the directors aforesaid approved of the employment of Field 
 & Shearman as attorneys in this action. 
 
 15. The charges of conspiracy in the said affidavit are 
 also false ; the fact that I and a majority of the Board of 
 Directors of the said company being in office in August, 
 1869, were opposed to the administration of the defendant, 
 Joseph IT. Bamsey, and believed that he was mismanaging 
 the road, and abusing his trust, squandering its funds, ap- 
 propriating some of its property to his own private uses, 
 and generally acting in such a way as to make it dangerous 
 to allow him to remain in the ‘office of President ; and for 
 these reasons we agreed to oppose his reelection, either as a 
 director or as President. For this purpose we requested 
 the assistance at the annual election of a number of large 
 stockholders, including the persons mentioned in this said 
 affidavit, as well as others, and agreed upon a ticket for which 
 we voted at the general election. 
 
 The defendant Phelps, acting in conspiracy with the de- 
 fendant Bamsey, refused to allow stock to be transferred to 
 David Wilber and other persons who were friendly to me, 
 and pretended that he was forbidden by injunction to do 
 so. But if any such injunction was obtained, I am informed 
 and believe that it was obtained by collusion between the 
 defendants Bamsey and Phelps, and the plaintiffs in the 
 actions on which such injunction was granted. 
 
 Jacob Leonard. 
 
 Sworn before me this 30th 
 
 (Copy) D. Cady Herrick, Commissioner of Deeds . 
 
117 
 
 SUPEEME COUET. 
 
 The Albany & Susquehanna 
 Eailroad Company 
 against 
 
 Joseph H. Eamsey, William L. 
 M. Phelps, Eobert H. Pruyn, 
 and Henry Smith. 
 
 Albany County, ss. : 
 
 William J. Hadley, of the City of Albany, being duly 
 sworn, doth depose and say, that some time in the month of 
 August, 1869, he was employed by Harris Parr, Esq., Sheriff 
 of the County of Albany, as his attorney and counsel, to as- 
 sist and advise him in the performance of his duty as to mat- 
 ters growing out of the controversy relating to the Albany 
 & Susquehanna Eailroad Company. That the reason given 
 by said sheriff for wishing to employ deponent was, that 
 Messrs. Hale and Hand, who were his usual counsel, had 
 become interested as counsel on one side of such controversy. 
 That deponent had not any interest or motive either per- 
 sonal or professional in such litigation except to advise the 
 said sheriff as to the impartial and proper discharge of his 
 official duty and to keep the said sheriff exempt from liabil- 
 ity to either side if that were possible. That shortly after 
 being so employed, various contradictory and conflicting or- 
 ders and injunctions were made and issued, and it became 
 a matter of the most extreme difficulty to know what was 
 the duty of the sheriff in the premises. That to such an ex- 
 tent did this conflict of jurisdiction proceed that the Govern- 
 or of the State issued public proclamation to the Sheriffs of 
 Albany, Broome, Chenango, Delaware, Otsego, and Sclio- 
 
118 
 
 harie Counties, wherein, after referring to the then existing 
 condition of things, the Governor made use of this language : 
 “ It cannot he possible for any sheriff to decide under the 
 circumstances which of the judicial orders are regular and 
 which are not,” and thus the said sheriff was placed in a po- 
 sition in which one judge commanded him to do an act and 
 another judge prohibited him from doing it, and the Gov- 
 ernor proclaimed that it was not possible for the sheriff to 
 decide what order was regular and what was not. 
 
 That previous to the 7tli day of September, 1869, there 
 had been, at different times, placed in the hands of said Harris 
 Parr, as such sheriff, for service, several non-bailable attach- 
 ments against Mr. Robert H. Pruyn, for an alleged con- 
 tempt, issued out of the Special Term of the Supreme Court 
 at the Court-house in the City of Hew York, held by and 
 before the Hon. Mr. J ustice Barnard ; that to such attach- 
 ments the said sheriff had returned that the said Robert 
 H. Pruyn could not be found in the County of Albany, he 
 being, as was then generally understood, absent from this 
 State : That as deponent was informed and believes, previ- 
 ous to the said 7 th day of September, there had been at least 
 two several attachments issued against the said Harris Parr, 
 as such sheriff by the Special Term in the City of Hew 
 York, for not having promptly returned process delivered to 
 him, when only twenty-four hours were allowed him to do so, 
 and deponent was admonished by such proceedings that it was 
 the intention to hold the said sheriff to the most strict and 
 vigilant discharge of his official duty, in promptly serving 
 all orders and papers issued to him for that purpose. 
 
 That on the morning of said 7th day of September, 1869, 
 the said Sheriff Parr called at the office of deponent and re- 
 marked, “ I have received more papers for service, with in- 
 structions to do my duty,” and handed to deponent a large 
 package af papers for examination and advice. That on ex- 
 amining such papers deponent found them to be : 
 
 1. A pluries non-bailable attachment issued from the 
 Special Term in the City of Hew York, against Mr. Robert 
 H. Pruyn, for an alleged contempt in disobeying an injunc- 
 
119 
 
 tion granted in the Supreme Court, in a suit wherein Azro 
 Chase was plaintiff, and the Albany & Susquehanna Rail- 
 road Company were defendants , -and which, attachment was 
 made returnable forthwith . 
 
 2. The summons and complaint, order of arrest, and affi- 
 davits in this cause and copies for service upon each of the 
 above-named defendants. 
 
 That after examining such papers and inquiring if the said 
 Robert H. Pruyn had returned to the said City of Albany, 
 and being informed by the said sheriff that he did not know 
 whether the said Pruyn had returned or not, deponent ad- 
 vised the said sheriff, and believed that if the said Pruyn 
 had returned, he w T ould be more likely to be found at the 
 offices of the Albany & Susquehanna Railroad Company 
 than at any other place ; that it was the duty of the said 
 sheriff to look for him there ; that if the said Robert H. 
 Pruyn had returned, and it should become publicly known 
 that he had appeared there, and the said sheriff should neg- 
 lect to arrest him, Judge Barnard would undoubtedly pun- 
 ish him as for a contempt for not serving such non-bailable 
 attachment ; that deponent also advised the said sheriff that, 
 in deponent’s opinion, it was highly probable that, if -he went 
 to the Susquehanna Railroad offices, he might meet there 
 also the other defendants, Ramsey and Phelps, and that if 
 he did so, having the order for their arrest in his possession, 
 it would be his duty to serve it, or he would become liable 
 as for an escape ; that deponent did not then know nor had 
 he reason to expect that the other defendant, Mr. Henry 
 Smith, would be or was to be at said offices ; that deponent 
 then inquired of the said sheriff whether he had any bail- 
 bonds in his possession, and was informed by him that he 
 had not, but that they were at his office in the jail. That 
 deponent then advised the said sheriff that he had better go 
 to his office and get some blank forms, so that if he met 
 either Mr. Ramsey or Mr. Phelps, in searching for Mr. 
 Pruyn, he might serve the order of arrest upon them, and 
 take bail upon the spot with the least possible inconvenience 
 and annoyance to either of them ; and that in order to expe- 
 
120 
 
 dite the matter, lie liad better get his under-sheriff or one 
 of his deputies to accompany him, and that would aid him 
 in tilling up the bonds and* serving the order of arrest with 
 all the dispatch possible, and without removing either of the 
 defendants from the building in which he might find them ; 
 that the said sheriff left the office of this deponent, leaving 
 the said papers in deponent’s possession and at deponent’s 
 request, to enable him to make a more thorough examina- 
 tion of them during the absence of the said sheriff. 
 
 That some little delay occurred before the return of the 
 said sheriff in consequence, as he stated at the time, of not 
 having been able to find a deputy immediately. That when 
 the said sheriff returned he was accompanied by Mr. Dunne- 
 ny, his under-sheriff. That by that time it had got to be 
 about half-past eleven o’clock a. m., and after returning the 
 papers to the sheriff, deponent again advised him and also 
 the under-sheriff, that if they met Mr. Ramsey or Mr. 
 Phelps, it would be their duty to serve the order of arrest, 
 but to do it with the least possible annoyance or interrup- 
 tion to them, to afford them every possible facility to give 
 bail upon the spot, and not in any way to interfere with or 
 interrupt the business of the election, and that the said 
 sheriff and under-sheriff then left deponent’s office together. 
 
 Deponent further saith that the primary object of the 
 said sheriff in going to the said office at that time was to 
 serve the said attachment upon the said Robert H. Pruyn, 
 and was not to serve the said order of arrest upon either of 
 the defendants unless he should meet them or either of 
 them accidentally in looking for Mr. Pruyn ; and that in 
 the judgment and belief of this deponent the said sheriff 
 would not have gone to said offices at that time or upon 
 that occasion if it had not been for the said attachment, and 
 the same being made returnable forthwith, as before stated, 
 and from the just apprehension which deponent felt that 
 the sheriff would be liable to be punished if Mr. Pruyn was 
 there and the sheriff made no attempt to serve such attach- 
 ment. That this deponent had no desire or intention or 
 disposition whatever of interrupting or in any way interfer- 
 
121 
 
 ing with the election of the company. That deponent be- 
 lieved at that time that, if the said sheriff should happen to 
 meet with either of the above-named defendants, they could 
 and would give bail upon the spot with less trouble and an- 
 noyance to themselves than if they were arrested upon any 
 other occasion, when their bail might not be present, or 
 where, for any reason, they might have to search for or look 
 up bail. Deponent further saith that he never received, 
 from any human being whatever, any hint or intimation or 
 suggestion of any kind in any manner that it was desirable, 
 or that it was wished to have such order of arrest served at 
 the time, and under the circumstances it was served, as 
 hereinbefore stated ; nor did the said sheriff, in the judg- 
 ment and belief of this deponent, and deponent has no rea- 
 son to imagine or believe that any of the parties interested 
 in the said litigation desired, or in any way procured, said 
 arrest to be made at the time of the holding of such elec- 
 tion. 
 
 William J. Hadley. 
 
 Sworn before me this 30th day of May, 1870, 
 
 George M. Cutler, 
 
 Commissioner of Deeds , Albany , N. Y. 
 
 \ 
 
122 
 
 SUPEEME CO PET. 
 
 The Albany & Susquehanna 
 Eailroad Company 
 
 against 
 
 Joseph H. Eamsey, William 
 L. M. Phelps, Eobert H. 
 Pruyn, and Henry Smith. 
 
 County of Albany, ss. : 
 
 Harris Parr, of the City of Albany, being duly sworn, 
 doth depose and say : 
 
 1. I am the Sheriff of the County of Albany, and was 
 such sheriff during the whole of the year 1869. 
 
 2. On the 7th day of September, 1869, Mr. Martin D. 
 Conway placed in my hands the summons, complaint, order 
 of arrest, and affidavits, in this cause for service. I think it 
 it was about 9 o’clock a. m. He gave me no directions 
 whatever. I asked him if there were any instructions, and 
 he said no, except to do my duty, nor did I have any knowl- 
 edge beforehand that such papers had been obtained, or that 
 I was to receive the same, and I had no agreement or un- 
 derstanding with any person, express or implied, or any 
 hint or suggestion when, how, or where the papers should 
 be served, except that I acted under the advice of my coun- 
 sel, Mr. William J. Hadley, of the City of Albany. 
 
 3. At the same time that the said Mr. Conway handed 
 me the papers in the suit before mentioned, he also placed 
 in my hands a pluries non-bailable attachment issued out 
 of the special term held at the Court-house in the city of 
 Hew York, the Hon. George G. Barnard, justice, etc., pre- 
 siding, commanding me forthwith to attach the said Eobert 
 
123 
 
 II. Pruyn, and forthwith to bring him before this court at a 
 special term thereof, to be held at the Court-honse, in the 
 City of New York, to answer for his misconduct in the con- 
 tempt which he was alleged to have committed in disobey- 
 ing an injunction granted in the Supreme Court in an ac- 
 tion wherein Azro Chase was the plaintiff, and the Albany 
 & Susquehanna Railroad Company and others were the de- 
 fendants. That several attachments against the said Robert 
 H. Pruyn for the same alleged cause had previously been 
 put in my hands for service, and on which attachments I had 
 returned, that the said Pruyn could not be found in this 
 county, he being, as was alleged, absent from this State. 
 
 That, as soon as conveniently could be after the receipt 
 of such papers, I proceeded to the office of my counsel, the 
 said William J. Hadley, and submitted the same to him ; 
 that, after examining the same, the said Hadley advised me 
 in substance that, if the said Robert H. Pruyn had returned 
 to the City of Albany, he would most likely be found at the 
 Albany & Susquehanna Railroad offices, and that, if he 
 should appear there, and the fact became publicly known, 
 Judge Barnard would doubtless punish me for a contempt 
 if I neglected to serve such attachment, and that it was my 
 duty to proceed to that place to search for the said Robert 
 H. Pruyn, and that my primary object in going there at 
 that time was to execute the said attachment if the said 
 Robert H. Pruyn could be found ; and I was further advised 
 by my said counsel that if, in searching for Mr. Pruyn, I 
 met Mr. Ramsey or Mr. Phelps, it would then become my 
 duty to serve the papers and order of arrest in this action, 
 or that I would be liable as for an escape; and that, in 
 serving such papers, I intended to do and did nothing more 
 or less than my official duty required of me wdthout par- 
 tiality or prejudice to either side, and discharged that duty 
 with as little annoyance and interference with the said de- 
 fendants as it was possible for me to do. 
 
 4. That, upon going to the offices of the said Albany & 
 Susquehanna Railroad Company to serve the said attach- 
 ment, I did not find the said Robert H. Pruyn, but I did 
 
124 
 
 find the said defendants Joseph II. Ramsey, William L. M. 
 Phelps, and Henry Smith, and I served the said papers be- 
 fore mentioned npon them, as it was my duty to do. 
 
 5. I had no design or intention of interrupting or in any 
 way interfering with the election of the company. I was 
 perfectly well satisfied that the said defendants could read- 
 ily and would give bail npon the spot, as they did. The 
 bail-bond was executed by one or more residents of Hew 
 York City with whom I was not acquainted ; but Mr. Shear- 
 man, one of the plaintiff’s attorneys who was in the build- 
 ing at the time, requested me to accept them, and signed 
 an approval of their sufficiency in order to exonerate me 
 from liability, and to afford them every facility to give the 
 bail speedily and to release them from the arrest. 
 
 Deponent further saith that he never received from any 
 human being any hint or intimation, or suggestion of any 
 kind in any manner, that it was desirable or that it was 
 wished to have such order of arrest served at the time and 
 under the circumstances it was served as hereinbefore stated ; 
 and deponent has no reason to imagine that any of the par- 
 ties interested in said litigation desired such arrest to be 
 made at the time of the holding of such election. 
 
 (Signed) Harris Parr. 
 
 Sworn before me this 30th day of May, 1810, 
 
 D. K. Prentice, Notary Public . 
 
125 
 
 INDEX. 
 
 PAGE 
 
 Origin of Susquehanna litigations 3 
 
 Quarrels among directors 5 
 
 Distribution of shares 6, 51 
 
 Purchase of town stock 9 
 
 Ramsey’s clandestine issue of stock 10 
 
 Accusations against Fisk and Gould 11 
 
 First suits brought 11, 12 
 
 Wilber suits 12 
 
 Ramsey’s suspension 15, 18 
 
 Granting injunctions on information and belief 17 
 
 Ramsey’s suit to suspend his co-directors 19 
 
 Judge Barnard’s order appointing Fisk and Courter receivers 24, 26 
 
 Where that order was signed 29 
 
 Writs of assistance 33 
 
 Judge Peckham’s receivership 31 
 
 Judge Peckham’s injunction 34, 38 
 
 Ramsey’s counsel 39 
 
 Application to the Governor 41 
 
 The Fuller receivership 44 
 
 “ Roughs ” at the election 54 
 
 The election 58 
 
 Arrest of Ramsey, Phelps, and Smith 63 
 
 Discontinuance of the arrest suit 73 
 
 The Groesbeck injunction 75 
 
 Fuller’s voting 75 
 
 Continuance of Fuller receivership 83 
 
 Ramsey vs. Erie ; 85 
 
 Commencement of Ramsey suit 85 
 
 Ramsey’s interest 86 
 
 Runkle’s appearance as attorney 90 
 
 Erie vs. Ramsey 91, 92 
 
 Change of place of trial in Ramsey vs. Erie 93 
 
 Default in Ramsey vs. Erie 95 
 
 Mr. Field’s conduct 98, 99 
 
 Summary 100