The San Francisco call. [volume], June 07, 1895, Image 16

About The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913

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ARGUMENT FOR STANFORD'S MILLIONS
Judge Garber Concludes
in Support of the
Demurrer.
MANY LAWYERS PRESENT
He Contends That the Lia
bility of a Stockholder Is
Limited.
THE GOVERNMENT'S THEORY.
Judge McKlsick Enters Upon the
Presentation of His Views on
the Matter.
Judge Garber concluded his opening
argument in support of the demurrer of
the Stanford estate against the Govern
ment's bill of complaint yesterday morn
ing and Judge L. D. McKisick proceeded
with Ins presentation of the complainants'
eide of the case. The Circuit Court room
was well filled during the day, most of the
listeners being well - known attorneys,
drawn there by a desire to hear the argu
ments of eminent counsel on such a
weighty matter.
There was not as much eloquence as on
the opening day, Judge Garber concluding
his argument and Judge McKisick open
ing with an assortment of hard dry state
ment, utterly unpalatable to the few lay
men present and not particularly refresh
ing to the assembled bar. Dusty volumes
containing decisions and statutes and opin
ions from the year 1 almost down to the
present time, where flourisheth Thompson
on the Law of Corporations, of whom Judge
Garber think? little and Judge McKisick
thinks much, were consulted. Long pas
sages from longer acts were read and deftly
dovetailed with the theories of attorneys
and the opinions of courts until every
body but the attorneys actually engaged
were in more or less of a muddle on the
entire proposition.
Only once during the day was the dreary
monotony relieved, even then only for a
second or so. Judge McKisick. who was
arguing, and Judge Garber, who was list
ening, had a slight passage-at-arms. The
former was graphically reciting a conver
sation that could have taken place in
Washington at the time of the passage of
the act of IS6I, had the then Senator Mc-
Dougall called upon Leland Stanford.
"You are entering into a contract with
the United States, Stanford," McDougall
would say in that conversation, "the out
come of which will be that you will have
to pay back millions of dollars."
"Oh," Stanford would have replied, "let
it go through: there's millions in it.
Colonel Sellers isn't in it. Let it go
through!"
Then Judge McKisick waxed eloquent.
"And the bill went through," he said,
"and the result is the railroad company
owns the railroad; it owns the lands, and
has paid $34,000,000 in dividends."
"Is that iv the bill 1 ?" asked Judge Gar
ber.
*'Xo," answered Judge McKisick, with a
trace of asperity, "it is not in the bill. But
everybody knows it, and what everybody
knows the court knows."
Judge Garber called mildly upon the
court to take notice of these statements,
but before his Honor had a chance Judge
McKisick continued.
"Oh, it doesn't matter," he said ; "I have
enough in the record without that; but I
will say they made millions out of it."
Again Judge Garber said the point was
not proper. "The court made some remark
about keeping within the record. Judge
Garber continued with his argument after
pointing out places where he thought op
posing counsel had gone without the rec
ord, and tlie little breeze was over. The
only oasis in the desert of dusty volumes,
endless words and stony facts was passed.
When court convened in the morning
Judge Garber resumed his argument by
taking up the question of the statute of
limitations as aftecting the liability of the
stockholders. There were provisions, he
saia, in the statutes of California, as early
as 1850, and before this obligation came
into being, which absolutely excluded all
possibility of its enforcement in this forum
or in the State.
In that statute of 1850 was a limitation,
not such a one as in the statute of limita
tions, which was essentially a constituent
of the thing itself. It provided that in any
case of the liability of a stockholder suit
must be instituted within three years from
the time of the creation of such liability by
the stockholder.
"This provision, I say," continued Mr.
Garber, "disposes of the proposition which
will probably be advanced here, that, as the
United States is the party-complainant
here, the maxim that no time runs against
the sovereign applies. If this were a
statute of limitations, barring the remedy
on a common law remedy, that right might
have its application, but, in this case, the
Government of the United States comes
into this court seeling to enforce a statu
tory liability. When it comes in that wav
it must take it in its entirety and in all its
phases. It cannot enforce it otherwise
than as the statute provides it shall do."
Mr. Garber then cited the Harmburg
case, lOfi United States, in support of his
contention; and furnished numerous
others on the point that the United States,
the complainant, was bound by the Su
preme Court of the State in the considera
tion of the laws of the State, and on the
further point that the liability set up in
the bill was merely a creature of the stat
ute.
"Now I submit," he continued, "that on
principle it must be held that on coming
to enforce their etatnte of liability, created
by the statute of 1861, coupled with the
provision of the law of ISSO (ever since re
tained in the statutes of California) that a
suit must be instituted within three years
after the liability was cieated and not after
the cause of action of that liability shall
have accrued, this action must fail not on
the grounds of any statute of limitations,
but because the case is not within the con
dition of the contract presumed to have
been made by the stockholder in taking
the stock:
"All these laws," he continued further
on, "providing for the liability of stock
holders have been found in practice to be
productive of unsatisfactory and unfruit
ful litigation. It has also been found that
they drive these corporations, these potent
factors in the advancement and progress of
States, to other States, where more liberal
laws arc on the statute-books. But the
Legislature of California did not and did
not intend to create any such provision. It
made a sharp distinction right there and
then and for good and plain and sufficient
reasons, as I think Your Honor will agree.
The law is not only plain and unambigu
ous upon its very face but it is founded
upon a good and sufficient reason and con
Highest of all in Leavening Power. — Latest U. S. Gov't Report ♦
ABSOLUTE** PURE
sideration. These long liabilities, these
long-extended bonds, running thirty, forty,
fifty and a hundred_ years, are entered into
by these corporations, and we all know,
every business mar. knows, that in cases
of that kind they do not need these statu
tory mechanics' liens — for that's what they
are — to secure them."
Judge Garber again quoted from the
statutes of ISSO concerning the three years'
limitation for the institution of suit on a
liability of any stockholder of a corpora
tion, and collaterally quoted from
Hunt vs. Ward, 99 California, a de
cision of the Supreme Court, which, he
claimed, bore out his position analogously.
"There is the law of the State of Califor
nia," he continued, "in reference to which
this contract must have been made. If you
treat this railroad company as a California
corporation, which I have denied, that is
the fair and unambiguous law of the State
of California, which must control the re
sult of this action, regardless of the other
contentions, which I have maintained.
"I believe now that I have presented
sufficient to enable Judge McKisick to
meet and answer our position, and that,
from the points which I wished to enforce
in the opening, I submit that this bill can
not be maintained. In the first place,
there was no covenant, or promise, or
agreement, on the part of the corporation
M'KISICK ADDRESSING THE COURT.
whatever. In the second place, if there
had been, so far as this transac
tion was concerned, and especially in view
of the decision of the Supreme Court of
the State itself on the Thurman and other
acts, quo ad hoc, this is not a corporation
of the State of California. Furthermore,
that by the law of the State of California
this limitation and condition entered into
and was a part of any contract which can
be brought out of it, so far as the stock
holders of the corporation of California
are concerned. If there was a liability at
all it accrued in the year 1863, in January.
That was the time when this statutory
jiability, if it ever accrued, did accrue.
That liability cannot now be enforced by
any proceeding instituted in the year
1895."
Judge Garber stated that there was one
other proposition he wished to make and
that was that it was well settled that the
statutory liability of a corporation may be
waived by an express written agreement,
by an oral agreement or by the conduct
of the parties.
"Right here, in this case," he continued,
"for the reasons I have already set forth,
there was ample evidence of the waiver on
the part of the United States of any liabil
ity. The conduct of the parties demon
strates to the mind the utter absence of
any intention to insist upon this liability,
and the waiver and abandonment of it as
much as would the insertion of that in
tention in the statute itself."
In answer to a question by Judge Mc-
Kisick, Wilson Russell stated that ail the
points which would be raised by the re
spondent had been set forth by Judge Gar
ber.
A recess until 2 o'clock was taken, when
Judge McKisick immediately began his ar
gument for the Government against the
demurrer.
"May it please the court," he said, "I
shall proceed to argue the case upon my
theory of it, which is altogether different
in many respects from that of the gentle
man who has just addressed you; arid dur
ing the course of my argument I shall
attempt to answer all the points he has
raised.
"The first question in my mind to be
settled here is as to whether we are to pro
ceed under the constitution of 1849 and
section 12 of the act of 1861, or under the
constitution of 1879 and section 322 of the
Civil Code. The second question is as to
whether there is a case exclusively cogniza
ble by law, or whether it is properly
brought by bill in equity.
"The third question is, If properly
brought by bill in equity, do the facts
alleged in the bill entitle the complainant
to any relief against the respondent?
"The fourth question is, Do the facts
alleged in the bill constitute a contract of
indebtedness by the corporation to the
United States?
"The fifth question is, Is the remedy by
forfeiture exclusive?
"The sixth question is. If the remedy by
forfeiture is not exclusive, had the com
plainants presented a case by their bill
which the court can enforce ?
"The seventh question is, Are the com
plainants barred by laches?
"The eighth question is, Are they barred
j by the statue of limitations?"
! After this opening statement Judge Mc-
Kisick unrolled a formidable looking
bunch of papers, the first few sheets of
which contained in printed columns the
constitution of 1849 and 1879. section 12 of
the act of 1861 and section 322 of the Civil
Code. He asked permission of the court
to read these, which was granted, and for
half an honr he plodded steadily through
the almost endless procession of words,
and after some uncomplimentary refer
THE SAN FBANCISCO CALL, FRIDAY, JUNE 7, 1895.
ences to section 12 of the act of 1861 he
took up and read extracts from Thompson
on the Law of Corporations on the indi
vidual liability of stockholders of corpora
tions.
"That is the work," he said sarcastically,
"of which my friend, Judge Garber, says
he has such a poor opinion. Well, I don't
blame him. It fairly teems with cases
fixing liability upon stockholders. Fairly
teems with them — teems with them.
"I was much surprised," he continued,
"to hear that m speaking of the act of
Congress counsel did not at all refer to the
fact that the act of 1862 was a mere offer by
the United States to the Central Pacific
Railroad Company of California for a pro
posal to make a contract with it. The act
itself did not constitute a contract until
the Central Pacific Railroad Company of
California accepted that offer. The Cen
tral Pacific could have refused to accept.
It was under no obligation to the United
States at that time. It could have refused
to enter into any contract with the United
States upon the terms and conditions im
plied in that contract. It was as abso
lutely independent of the United States as
any individual in California. But, it did
accept and thereby took on the liability."
Judge McKisick'continued by readingsec
tions 5 and 6 of the act of 1861, providing
for a forfeiture and setting forth the con
ditions under which the bonds were to be
issued, among which was the one that the
bonds were to be paid at maturity ; and,
further on, reading from the act of 1879, he
held that Congress in expiess terms had
avowed the intention of the Government
to relinquish none of its claims against the
railroad company. He explained the sink
ing fund and the credits for transportation
of miJitary and other governmental sup
plies; and then insisted again that Leland
Stanford knew what he was doing when
he became a party to that contract. He
pictured the latter in Washington, and
rehearsed the supposititious conversation
of the president of the Central Pacific with
Senator McDougall, above quoted.
"There is no doubt," he said, after read
ing the decision in the Union Pacific Rail
road Company vs. the United States, 91
United States Reports, "that the Govern
ment was to be reimbursed for these bonds
both in principal and interest, and in the
case just quoted the Supreme Court speci
fically determined that there was a debt
due from the corporators to the United
States."
Reading the "Tennessee cases" (114
United States), he said: "If this decision
does not make such contracts a debt, and
if they do noi provide that it shall be paid,
then I do not understand the English
language."
Speaking to the demurrer proper, Judge
McKisick stated the rule to be that if part of
the bill was good and entitled the com
plainant to relief, a demurrer to the whole
bill could not be sustained. The second
ground of the demurrer, he said, went to
the whole bill. It stated that he had only
one remedy, whereas he had three, and it
must be overruled on that ground. The
only defense the respondent could inter
pose, said counsel, is that the debt has
been paid or that the United States has re
leased the testator from his liability to
pay it.
At this point an adjournment was taken
till this morning at 11 o'clock, when Judge
McKisick will resume his argument.
LOOKING FOE OIL.
Members of the Manufacturers' Associa
tion Examine the Miner Prop
erty in Oakland.
A committee from the Manufacturers'
Association went to Oakland on the
9 o'clock boat yesterday morning to exam
ine the oil-bearing property of Mr. Miner.
The committee consisted of J. W. Kerr,
A. F. McLaughlin, C. Neese and C. Blank
enhorn.
They were met by Mr. Miner at Seventh
and Broadway and driven to their desti
nation in carriages. A thorough investi
gation of the land then ensued.
They explored the creek, with its scum
of oil, and dug into the slate to find drops
of petroleum oozing from the cracks. In
the sand formation they went to where a
hole had been dug and lit the gas that
escaped from the water that seeped into it.
This gas was collected by placing an in
verted tin pan, with a hole in its bottom,
on the water. The gas that arose escaped
through the hole in sufficient quantities to
cause a steady light.
"There is oil there, without question,"
said Mr. Kerr, one of the committee.
"The matter of its value is problematical.
If it will pay to work, the wells will be so
near transportation by water and rail as to
be of especial value.
"The lirst step, of course, is to have the
property examined by experts. If the re
ports are.favorable, a well will then have
to be sunk. The indications are good, but,
of course, no one can speak certainly of
the profits that may result."
The committee is to meet this afternoon
at 3 o'clock in the rooms of the association.
They will then make up a report based on
their own observation.
Acknowledged His Fault.
Judge Murphy yesterday granted a divorce
to Leopold Taibl from his wife, Mary Taibl, on
the ground of infidelity. The defendant made
no appearance, and Conradus de Lange, 76
years of age. testified that he had be >n justly
accused of the trouble which had been the
cause of the suit. He said that as a seafaring,
honest man he could not resist the charms of
the defendant, whom he was willing to marry.
The court, becoming assured that there was no
collusion in the matter, granted the decree.
The parties were married in Chicago on Decem
ber 18, 1879, and have since lived in this City
and San Jose.
They manipulate paper into every conceiv
able shape; print or bind it. MyseU <Jc Rollins,
621 Clay street. •
A NICE POINT OF LAW
The Right of a Husband to Dis
miss an Action of the
Wife.
NOTED CUNNINGHAM CASE.
Every Woman In California Is Seri
ously Affected by This Liti
gation.
There was filed in the Superior Court
yesterday a petition involving the right of
a husband to dismiss an action for dam
ages brought by the wife. This affects
every woman in California, for a decision
in favor of the defendants in the case
sought to be dismissed means that a hus
band can at any time for a consideration
dismiss an action brought by the wile, re
gardless of the justice of her cause.
The case in question is the suit of Laura
D. Cunningham against the California
street Railway Company for damages on
account of injuries received in a collision
with a car of the Market-street road. The
following is the petition filed by Henley
& Costello, attorneys for the defendants:
State of California, >
City and County of Sam Francisco, s
A. C. Cunningham being first duly sworn de
poses and says: That he is now and was at all
the times hereinafter mentioned the husband
of the said plaintiff, Laura Cunningham, this
affiant having intermarried with the said
Laura Cunningham on the 30th day of Novem
ber, 1890; tnat on the 27th day of November,
1893, the said plaintiff, Laura Cunningham,
while a passenger on the cars of the Market
street Cable Railway Company, claimed to
have received certain" injuries by reason of a
collision of the cars of the said company with
the cars of the California-street Railroad Com
pany at the intersection of I'ost and Jones
streets in the City and County of San Fran
cisco, caused by the negligence of the said
companu-s: that at the time of the receipt of
sain alleged injuries by the said Laura Cun
ningham aforesaid, this affiant and the said
plaintiff Laura Cunningham were living sep
arate and apart from each other and had been
so living separate and apart for the space of
throe or four months before the said 27th day
of November, 1893, but this affiant avers that
the said Laura Cunningham and this affiant
■were not living separate and apart by reason
of any desertion on Ins part nor under and
pursuant to any agreement in writing between
this affiant and the said Laura Cunningham,
but that the said Laura Cunningham left the
home of this affiant of her own free will and
without any fault on the cart of affi
ant, and on the 26th day of October, 1893,
instituted a suit of divorce against this affiant,
which said action is known on the records
of said court as case No. 43.011, and wherein
this affiant is charged by the said plaintiff,
Laura Cunningham, with willful negligence
and extreme cruelty, but no charge of deser
tion is contained therein, nor has this affiant
at any time been guilty of desertion of the
plaintiff, Laura Cunningham, or guilty of the
said charges of willful negligence and"extreme
cruelty. This affiant further avers that subse
quent to the filing of the said complaint as
aforesaid and subsequent to the receipt of the
said alleged injuries, and on the 9th day of
January, A. D. 1894, the said Laura Cunning
ham voluntarily returned to this affiant and
they resumed marital relations; and this af
fiant further avers that they wete living to
gether as man and wife on 'the 29th day of
January, A. D. 1894, when the said action of
A. C. Cunningham and Laura Cunningham,
plaintiffs, vs. California-street Cable Railroad
Company and The Market-street Railway Com
pany, corporations, defendants, was instituted
in the Superior Court of the City and County of
San Francisco, and which sßid action is iden
tical with and is, in fact, the same action as
the action herein. This ailiant further avers
that, having every confidence In his wife, he
believed the representations that she had met
with severe injuries by reason of the negli
gence of the said corporations defendant, and
in that way consented to become a party plain
tiff in the ant»'on aforesaid; that this affiant
and the said plaintiff, Laura Cunningham, con
tinued to live together as man and wile from
and including the 29th day of January, A. 1).
1894. to and including the 15th day of Sep
tember, 1894, when the trial of the said
action took place; that at the trial of said
action for the first time this affiant became
convinced that the said Laura Cunningham,
if she was injured at all as represented by her
by reason of the accident occurring on the
27th day of November, 1893, that said injuries
were slight and superficial, and this affiant be
came further convinced by reason of the con
duct of the said plaintiff, Laura Cunningham,
and by reason of certain statements and con
fessions made by her, that she was shamming
and malingering as to the nature and extent of
said injuries, and feigning symptoms which
she dio not possess, and all for the purpose of
defrauding and blackmailing said defendants,
the California-street Cable Railroad Company
and the Market-street Railway Company, and
acting upon these convictions this affiant, be
ing unwilling to be a party to defraud or black
mail, immediately gave instructions that he
desired his name withdrawn from the said
action and the suit dismissed, and this affiant
was under the impression until the month of
March of this year that the said suit had been
dismissed until he was subpenaed as a wit
ness in the said cause. This affiant then went
to the office of the attorneys for the California
street Cable Railroad Company and authorized
them to dismiss and gave them a dismissal of
the action, which is now on file on the records
of this court, to which reference is hereby
made, and a copy of which is hereunto an
nexed, marked "Exhibit A" and made a part
hereof.
This affiant simultaneously with the making
of the dismissal of said action executed to the
said defendant, the California-street Cable Rail
road Company, for a valuable consideration,
a release of all demands, which said release is
now on file in the records of this court, a copy
of which is hereunto annexed marked "Ex
hibit B," incorporated within and made a part
of (his affidavit.
This affidavit further deposes and says that
since the month of September, 1894, this
affiant and the said plaintiff, Laura Cunning
ham, have not lived together as man and wife,
and affiant further avers that this was not due
to any fault on the part of affiant or any de
sertion 01 the plaintiff, Laura Cunningham, on
his part, but. this afiiant avers that the said
Laura Cunningham in the month of Septem
ber, 1894, left the home of this affiant and,
although often requested to return, refused at
all times and now refuses to live or cohabit
with this affiant, without any fault on his
part. This affiant further avers that the said
Laura Cunningham is not now and never has
been living separate and apart from him under
or pursuant to any agreement in writing be
tween this afiiant and the said plaintiff, Laura
Cunningham. Further this affiant sayetn not.
A. C. Cunningham.
Subscribed and s worn to before me this sth
day of June, 1805. G. K. Daggett,
Notary public in and for the City and
County of San Francisco, State of California.
WANTS AITKEN RETIRED.
A. S. Newbnrjh Asks That He Be Given
a New Attorney in the Doug
lass Case.
A new turn has been taken in the case of
A. S. Newburgh against Police Captain
Douglass. Newburgh has been protesting
that his attorney, John R. Aitken, con
ducted a "circus lemonade" case; that he
was "caved down the bank" by police in
fluence, and that he neglected to use
proper diligence in the examination of wit
nesses.
This caused a quarrel between the two
attorneys, who were then in the same
office, but who now fail to speak as they
pass by. It also resulted in the exposure
of some peculiar legal methods of Mr. Ait
ken, which has caused M. M. Foote to re
quest the Bar Association to begin action
for his disbarment.
As a consequence, Mr. Aitken has an
nounced that he intends to publicly with
draw from Mr. Newburgh 's case. He has
also declared that when he does so he will
censure his former clerk and client severely,
and move for a change of venue on the
ground that his client had informed him
that the Judge was going to decide in his
favor.
Mr. Newburgh has interested Ed M.
Sweeney in his case. That gentleman re
quested Mr. Aitken to sign papers substi
tuting Mr. Sweeney for himself as attorney
for Newburgh. This Mr. Aitken refused
to do. He said that Newburgh had proved
a traitor and had wronged him by divulg
ing professional secrets. He wanted to be
able to tell the story in court and therefore
would not consent to the substitution.
Mr. Sweeney has filed a notice of inten
tion to demand the substitution. This will
be heard this morning.
"I have not taken the case up because 1
am a friend of Mr. Newburgh," Mr.
Sweeney explained. "I feel that the police
are often too overbearing. 1 have fre
quently seen them abuse citizens need
lassly and thr.ist attorneys out of court
rooms when others who had not the legal
right to demand admittance were allowed
to enter. My fight is a matter of principle
and I will use every endeavor to convince
the Police Department that it is necessary
to employ courtesy in dealing with the
public.
HOW O'BEKN WAS DUPED.
Kd Burwick Arrested for Obtaining
Money From Him by
Fraud.
Ed Burwick, a resident of Butchertown,
appeared in Judge Low's court yesterday
morning for his preliminary examination
on the charge of grand larceny by fraud,
trick and device, and the case was contin
ued till to-day.
The complaining witness is Ed O'Bern,
Twenty-fifth and Castro streets, who al
leges that Burwick advertised a few days
ago for a partner with a small capital for
a butcher-shop at 1016 Alabama street.
He answered the advertisement and on
Wednesday afternoon, getting $70 from his
wife, he called at the shop. Burwick was
there and told him he owned the fixtures
and blocks in the shop and a horse and
wagon.
O'Bem handed over the $70 and Burwick
drew out a partnership bill of sale and
handed O'Bern a receipt for the money,
which he neglected to sign. The landlord
happened to go into the shop and learning
what was going on told O'Bern that noth
ing in the shop belonged to Burwick.
O'Bern immediately demanded the re
turn of his money and Burwick started on
a run, O'Bern pursuing him and yelling
for the police. Detective Cody heard
O'Bern's cries and taking in the situation
joined in the chase and overtook Burwick
at Twenty-third and Valencia streets.
When searched at the City Prison $65 was
found in his pockets, which Cody says he
admitted he received from O'Bern.
TWO WIDOWS OF ONE MAN.
Mrs. Moxley No. 1 Is Suing Mrs.
Moxley No. 2 for a Valu
able Estate.
She Claims That Her Husband Left
Her In 1849 to Come to
California.
A curious suit, involving two "widows"
of one man, is being tried in Judge Heb
bard's court. It ia entitled "Elizabeth L.
Moxley vs. Elizabeth W. H. Doe, some
times called Elizabeth W. H. Moxley and
sometimes called Elizabeth W T . Moxley."
The question as to who is the true widow
involves the possession of a large amount
of property valued at over $100,000.
The plaintiff in this suit says that she
married John Smith Moxley on May 15,
1849, in Baltimore, Md., and the marriage
had never been dissolved. Moxley died
September 10, 1892, in San Francisco, leav
ing property m this City of the above
value, including land on the corner of Mc-
Allister street and Van Ness avenue in
cumbered by a mortgage to secure the pay
ment of a note for $10,000 to the Hibernia
Bank. Moxley afterward sold a portion of
this tract for more than $10,000, which was
applied by Moxley to the discharge of the
note.
On May 28, 1891, Moxley is said to have
sold another piece of said real estate for
$2500 and purchased a piece of land within
the University Mound survey.
Up to September 10, 1892,' a1l the lands
referred to stood in the name of John
Smith Moxley unincumbered, and were
assessed in his name. On September 10,
1892, the second widow, under the name of
Elizabeth W. H. Moxley, filed for record
an absolute deed conveying to her the Mc-
Allister-street property. The deed was
dated August 15, 1889, and the considera
tion was thus stated :
In consideration of the love and affection
which said party of the first party lias and
bears unto the said party of the second part, as
also for the better maintenance, support, pro
tection and livelihood of the said party of the
second part.
On the same day of the filing of this
deed, viz., on September 10, 1892, the San
Francisco widow filed another deed con
veying to her the University Mound prop
erty, dated August 1, 1891, the considera
tion being the same.
The Baltimore widow declares that she
only learned of the existence of the deeds
October 1, 1893, and at once instituted an
investigation. She says that the claim of
the San Francisco widow is false and that
it was made to "cheat and defraud the
plaintiff out of her rights and interest in
said property and to deprive her of the
means of support and maintenance right
fully belonging to her as the wife of John
Smith Moxley."
She claims all the property as commun
ity property, and that the San Francisco
widow's claim to it is "wholly fraudulent
and fictitious and without merit." She is
asking the courts to restrain her rival from
disposing of or incumbering the property.
During the proceedings yesterday long
affidavits by the Baltimore widow, who is
detained in the East by an incurable cancer,
were read by Attorney Hughes. In tneiu
she gave the details of her marriage to
Moxley and his departure for California to
be absent three years. She had afterward
seen her husband, but could not prevail
upon him to return to her. She had re
mained single during her long years of
waiting.
On one occasion she had been offered
$1000 to grant her husband a divorce, but
had refused and had instituted investiga
tions in this City to find that another
woman was posing as her husband's wife.
She had objected to divorce on religious
grounds.
The defense relies upon the validity of
the deeds which passed between Moxley
and his San Francisco wife.
• — ♦ — •
FAVOR THE IRISH CONVENTION.
Knights of the Red Branch Indorse a
Patriotic Movement.
The Knights of the Red Branch have
adopted the following resolution in favor
of the proposed American convention in
the interest of Irish nationality:
Whereas, It appears that a movement has
been inaugurated in this country by some of
the most patriotic men of the Irish race by
which it is intended to hold a public conven
tion oi representative Irish-American citizens
at some central point for the purpose of con
sidering the present condition of! Irish national
affairs, and the advisability of adopting a more
definite and advanced national policy than any
heretofore adopted, and
Whereas, it also appears that no home rule
bill or any other measure of substantial justice
iv favor of Ireland is likely to pass the English
Parliament through any form of constitutional
agitation, be it therefore
Jiesolved, That this organization is heartily in
favor of holding the convention above referred
to, and fully indorses the said movement.
» — •— — •
Comfortable Traveling.
The most comfortable route to the East sum
mer or winter is the Santa Fe route. The sleep
ing-cars are superior and the meals en route
are unequalei.. There is less dust and no more
heat than on any other line.
A popular misbelief is that extreme heat pre
vails on this line in summer, while the fact is
that the elevation of the whole line insures as
comfortable a temperature as can be found on
even the most northerly line. The northern
part of Arizona is the summer resort of the
people of that section, and the Grand Canyon
01 the Colorado is visited in the summer
months exclusively.
The Santa Fe route is first class all the way
through to Chicago. The ticket office is 650
Market street, Chronicle building. The Pull
man sleepers run without change from San
Francisco to Chicago vie. Kansas City. * |
WOULD ARREST THE JUDGE
Labor Commissioner Fitzger
ald Makes a Dramatic
Move.
HIS NOTICE NOT EVIDENCE.
i
Justice of the Peace Croezlnger
Threatens to Put Him In
the Bast lie.
Quite an exciting and unusual scene
occurred in Justice of the Peace Groe
zinger's court yesterday morning when
Labor Commissioner Fitzgerald undertook
to put the Judge under arrest, the latter
being at the time upon his bench. : f .-;
When the astonished Judge realized
what Fitzgerald was saying to him, as he
showed the badge of his office, he rose up
and ordered him (Fitzgerald) out of his
courtroom in a great hurry under pain of
himself (Fitzgerald) being thrown into the
bastile.
All the circumstances of the incident are
perhaps without precedent.
The Labor Commissioner, it seems, took
exception to a recent judgment rendered
by Judge Groezinger, which ran counter to
an action taken by Fitzgerald in his
official capacity. This, in Fitzgerald's
opinion, warranted him in having the
Judge arrested.
After the excitement and indignation
died away the incident proved food for
some merriment in the Larkin-street lobby
of the City Hall.
The circumstances leading up to it are
these: Thp msp r\i +ht> ectnfo /-.f 50,.0 i,
The circumstances leading up to it are
these: The case of the estate of Sarah
Belder against A. E. Moore was tried some
days ago before Judge Groezinger. The
estate sought to recover $150 due for rent
for a building or rooms at 41 Stevenson
street.
Moore set up as his defense that the
building was not in proper sanitary condi
tion and that it should be put in order be
fore he could be compelled to pay the
rent. The law provides that landlords
must keep their property in^ood sanitary
condition, otherwise the tenant is entitled
to withhold one month's rent for the pur
pose.
Judge Groezinger said if the fact upon
which the defense was based could be
shown to his satisfaction he would allow
the defendant a credit of a month's rent.
He called the Health Inspector to testify,
and that official declared the building was
in excellent condition so far as the plumb
ing was concerned, but that the water had
been shut off for some time because the
water rent had not been paid.
"But," said Moore, "I have a letter from
Labor Commissioner Fitzgerald which de
clares that the building is unhealthy."
He produced this letter, which was ad
dressed to himself.
"This is not evidence as against the tes
timony of the Health Inspector," said
the court. "Besides the letter is ad
dressed to you. I have nothing to do with
it." Thereupon he rendered judgment for
the plaintiff for the full amount of the
claim and dismissed the matter from his
mind.'
His astonishment may be appreciated
therefore when the Labor Commissioner
walked into his courtroom yesterday ac
companied by. another man, presumably
an officer, ana addressing the Judge, who
had just dismissed a case and was about to
call another, that he had come to place
him (the court) under arrest.
"What do you mean?" exclaimed his
Honor.
"I mean just what I say," said Fitz
gerald, at the same time throwing back the
lapel of his coat and displaying a silver
star. "I understand that you, some days
ago, instructed one of the parties to a suit
tried before you that no attention need be
paid to any official notices from me."
"Where do you come from?" gasped the
court, unable to realize at once that it was
not some ill-timed joke.
"From Oakland especially on this busi
nesF," said Fitzgerald coolly.
"And so I am to be arrested for not con
sulting you before I render judgment in
causes tried in this court," said the indig
nant Judge. "Now, sir, you get out of
this courtroom and back to Oakland just
aa quickly as you can or I will have you
run into the bastile."
"But—" said Fitzgerald in an altered
tone of voice.
"Xo buts about it," said the Judge. "If
you don't get out of here I'll have you
locked up. You come here to arrest me,
do you, because my decisions don't please
you?"
"But I have consulted the District At
torney," insisted Fitzgerald.
"You had better go and consult some
body else, then," said the now thoroughly
angered Justice of the Peace, making a
move toward summoning an officer.
Fitzgerald turned the" flap of his coat
down over the silver badge of his office
and retired, his companion with him, de
claring that there must be something wrong
and he would go and have Moore arrested
for misrepresenting the case to him.
TO PROBE MEYER'S DOUBT.
Contempt Proceedings Will
Follow the Paulseli Jury
Disagreement.
The District Attorney's Office to
Investigate the Matter f./
In Court.
Assistant District Attorney Peixotto will
this morning institute an investigation in
Judge Belcher's court into the circum
stances of the disagreement by the jury in
the case of W. E. Paulsell on trial for rob
bery. :': ":: f /~«Ni
The jury stood eleven for conviction and
one for acquittal, the one standing out be
ing Julius Meyer, who gave as his reason
that, apart from a reasonable doubt of the
defendant's guilt, he would not vote for a ;
verdict of conviction because he was "pre
judiced against the court." It was under
stood that ne referred to , certain remarks
made by the court in the conduct of an
other trial.
There is no desire on the part of the
court or State officials to question the fact
of the disagreement, but, according to
. their statements, they regard. Juror Meyer
as having placed himself on very danger
ous ground, . and to have raised a point
tending to throw serious odium on the exe
cution of justice.
The fact that several of the jurors preferred
direct charges of perjury against Meyer for
violating his oath, and that he was the ob
ject of ridicule and contempt at the hands
of his eleven cojurors, places the burden of
the investigation upon his own peers and
fellow-citizens, who insist that he shall be
made an example of to warn any other
jurors from attempting to block the wheels
of justice.
:j Judge Belcher said yesterday that he was
investigating the authorities to ascertain
under what sections Juror Meyer could be
dealt with. He had left the matter in the
hands of Assistant District Attorney Peix
ottoand was ready to listen to any proceed
ings instituted by him.
. ;: Mr. Peixotto said - that he would make a
motion -, in ■- the matter supported by an
affidavit this morning. ■ The affair had as
sumed such an aspect , that it could not be
ignored. Juror Meyer, as every other
I juror, bad been asked whether lie knew of
idfci* WIH Mi lllMimiiii mi ii i .- ■- .--. ,- T -.. ■-) ■ - j--|'-ri|yjm|J«|iH| i
any reason why he could not serve fairly in
the case, and if he had any prejudice
against the court at that time it was hit
duty to have declared it. But he had not
done so. He was of opinion that the atti
tude of the juror might prove to have
constituted gross contempt. Any action
however, that he might take would be in
the simple execution of his doty as an
'officer of the court, and was not influenced
in the least by his appearance for thp
State in the case of the People v s Paulsell
He would appear in the interests of com
mon justice to protest against the castine
cour°t m UP ° n ° oUrt ° r any oth "'
SHIPPING JJEEEff FKTJIT.
Sent by Ventilated Cars to Chicago on
a Fast Freight
Train.
The first cars of green fruit of the
season were shipped from Sacramento
at midnight Wednesday. The f ru ? t
was packed in ventilated] cars and
a special train was made up. This train i,
to have right of way over everything and
will get into Chicago in 120 hour,. U went
by way of the Central Pacific, Union Paci.
fie and North Western lines.
The next train is to leave at midnight on
Junes, If the service proves suecLfu*
trains will then be run at frequent inter
vals. The use of the ventilated cars will
prove a great saving to the growers v
Up to the preserft, nearly all soft green
fruits have been shipped in refrigerator
cars. The iceing of these is very «5-£
sive. The railroad company now promises
to get fruit through in the ventilated cars
so expedniously that no others will be re
quired. This will save $100 a car, or half a
cent a pound on the fruit.
The hour for starting is fixed at mid
night because the local trains arrive in
feacramento from the neighboring towns
late. There were only four cars in the first
train. In the future, as the service be
comes better known, the amount of ship
ments will grow larger. The fruits shipped
were cherries and apricots.
MRS. FAEDROFF DIVORCED.
She Was Dragged Three Blocks
by the Hair of Her
Head.
End of a Russian Marriage Involv
ing Curious Phases of
Character.
Judge Hunt yesterday granted a divorce
to Emma Frederickson from Nicholas
Frederickson on the ground of extreme
cruelty.
The real name of the parties is Faedroff,
the man being a Kirghese, or half Russian
and half Tartar. According to the story
told in the divorce proceedings he led his
wife a sad life, being addicted to crr.eltv of
a violent character. Soon after their mar
riage in Chicago he commenced cuffing and
abusing her.
Then a Count appeared to the rescue.
He is said to have induced Faedroff to re
turn to Russia, and in his absence to have
eloped with Mrs. Faedroff to San Fran
cisco, where the Count and pseudo Count
ess Rahbander lived on Twenty-third
street, near Guerrero.
But Faedroff found out that he had been
duped. When he reached Russia it was
not to lord it as a manager of the Count's
estates there but he was seized by the po
lice and deported to the Siberian mines.
He escaped, and traced his wife and the
Count to this City, where he hurled rocks
at the latter until be decamped and d rawed
his wife by the hair of her head iri>m
her residence on Twenty-third street to
his home on Twenty-tirst.
When he had thus regained his spouse
he resumed the ill-treatment inaugurated
at Chicago. Mrs. Faedroff had him arrested
several times, and finally sued him for the
divorce which was yesterday granted.
O
A Question of Harmony i
is scarcely in point if the
instrument be a
Zhnmermann
Autoharp.
The World's Fair Com-
mission said that the
musical possibilities of
this instrument were un-
limited. And it's so easily-
learned, too, and so reason-
able in price.
Prices, $4, $5, $10, $15, $20, $25.
The $5 Style is the Most Popular.
YOU m PLAY ITJS TEN MUTES.
Delightful Company for Your Sum-
mer Outings, In Camp, Aboard
Ship, Anywhere.
SEE DISPLAY IN WINDOW.
Call and See This Simple Instrument
sherman7clay & co.
MUSIC DEALERS,
Corner Kearny and Sutter Sts.; S. F.
THS SEBAT HOISTUBE ABSOSBSNT i
"HUMIDINE"
Keeps Refrigerators dry and sweet,
preserves meats, butter, milk, etc.,
economizes ice, removes ',' refriger-
ator taste" and odor. Sold by
grocers and druggists. PBNNA.
SALT MFG. CO. Also, Mfrs. Lewis'
98 fo Powdered Lye, Philadelphia.
People in San Francisco.
The tfnequaled demand for Paine's Cel-
ery Compound among the people of this
city is but one Index of the great Kood It la i
doing. There are many in San Francisco
whom it has cured of serious 111 ness. Maine's
■ Celery Compound makes people well who
• suffer from weak nerves or Impure blood.