The San Francisco Call. Newspaper, June 7, 1895, Page 16

THE SAN FRANCISCO CALL, FRIDAY, JUNE 7, 1895. 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 McKisick Enters Upon the Presentatlon of His Views on the Matter. dge 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 his presentation of the complainants’ side 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- jons from the year 1 almost down to the present time, where flourisheth Thompson on the Law of Corporations, of whom Judge Garber thinks 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 argning, 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 1861, 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 resultis the railroad company owns the railroad; it owns the lands, and has paid $34,000,000 in dividends.” “Is thatin the bill?” asked Judge Gar- be: +‘No,” answered Judge McKisick, with a trace of a. ) 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 ck continued. b, it doesn’t matter,” he said; “I have enough in the record without that; but I will say they made millions out of it.” dge Garber said the point was a not proper. The court made some remark Judge about keeping within the record. Garber continued with his arzument after pointing out places where he thought op- posing counsel had gone without the rec- ord, and_the little breeze was over. The only oasis in the desert of dusty volumes, endless words and stony facts was passed. When court convencd in the morning Judge Garber resumed his argument by taking up the question of the statute of limitations as affecting the liability of the stockholders. There were provisions, he saiq, in the statutes of California, as early as 1850, and before this obligation came into being, which absolutely exciuded all possibility of its enforcement in this forum or in the State. In that statute of 1850 wasa limitation, not such a one s in the statute of limita- tions, which was essentially a constituent of the thing its It provided that in any case of the liability of a stockholder suit must be instituted within three years irom the time of the creation of such liability by the stockhold “This provision, I say,” continued Mr. Garber, “disposes of the proposition which will probably be advanced here, that, asthe United States is the party-complainant here, the maxim that no time runs against the sovereign applies. If this 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 thi urt seeking to enforce a statu- tory liability, When it comes in that way 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 Harrisburg case, 105 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 Jaws 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 comin, 1o enforce their statnte of liability, created by the statute of 1861, coupled with the ision of the law of 1850 (ever since re- 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 %rouuds of any statute of limitations, but because the case is not within the con- dition of the contract been made by the stos 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. 1t 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- Eresumed to have ckholder in taking were a | | attempt to answer al | | plainants barred 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 man knows, that in cases of that kind they do not need these statu- tory mechanics” liens—for that’s what they are—ro secure them.” Judge Garber again quoted from the statutes of 1850 concerning the three years’ limitation for the institution of suit on a lability of any stockholder of a corpora- tion, and _collaterally uoted from Hunt vs. Ward, 99 "California, a de- cision of the Supreme Court, which, he claimed, bore out Kis 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 ences to section 12 of the act of 1861 he took up and read extracts from Thompson on the Law of Corporations om 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 in 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- osal to make a contract with it. The act itself did not constitute a contract until | the Central Pacific Railroad Comgnné' 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- lied in that contract. It was as abso- utely indegendent of the United States as any individual in California. But, it did accept and thereby took on the liability.” Judge McKisick continued by reading sec- 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 express terms had avowed the intention of the Government to relinquish none of its claims against the railroad company. Heexplained the sink- M’KISICK ADDRESSING THE COURT. A NICE POINT OF LAW. The Right of a Husband to Dis- miss an Action of the Wife. NOTED CUNNINGHAM CASE. Every Woman in callfornials Seri- ously Affected by This Litl- 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 fora consideration dismiss an action broght by the wite, 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 whatever. In the second place, if there had been, so far as trans | 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, thisis not a_corporation of the State of California. this limitation and condition entered into and was a partof 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 itaccrued 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 ié\g_v_ "proceeding instituted in the year 5. 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 Me- Kisick, Wilson Russell stated that ail the points which would be raised by the re- ipondent had been set forth by Judge Gar- er. A recess until 2 o’clock was taken, when Judge McKisick immediately began his ar- sument for the Government against the emurrer. *‘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; and dur- ing the course of my argument I shall the points he has raised. “The first question in my mind to be Furthermore, | that by the law of the State of California | 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 bruuiht 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 guestion 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- v laches? “The eighth question is, Are they barred by the statue of timitations?’’ 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 hour he plodded steadily through the almost endless procession of worgs, and after some uncomplimentary refe ing fund and the credits for transportation of military and other governmental sup- plies; and then 1nsisted 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 Pacitic 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 not provide that it shall be paid, then ‘I do not understand the English language.” 2 Sfieakinz to the demurrer proper, Judge McKisick stated the rule to be thatif part of the bill was good and entitled the com- gluinant to relief, a demurrer to the whole ill 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 (Faid 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 FOR 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 escapes 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 first 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. Highest of all in Leavening Power.—Latest U. S. Gov’t Report - oYal paing 1 ABSOLUTELY PURE _ {( ——————— 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 sald that as a seafaring, honest man he could not resist the charms of the defendant, whom he was willing to marry, The court. ming 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. Mysell & Rollins, 521 Clay street. . with a car of the Market-street road. The following is the petition filed by Henley & Costello, attorneys for the defendants: STATE OF CALIFORNIA, % 8. CITY AND COUNTY OF SAN FRANCISCO. A. C. Cunningham being first duly sworn de- Poses and says:” That he is now and was at all he times hereinafter mentioned the husband of the said plaintiff, Laura Cunningham, this affiant haying 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, Leura Cunningham, while & passenger on thé 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 Reilroad Com- pany at the intersection of Post and Jones streets in the City and County of San Fran- cisco, caused by the negligence of the said companies; that at the time of the receipt of saia alleged injuries by the said Laura Cun- ningham aforesaid, this sffiant 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 three or four months before the said 27th day of November, 1893, but this afliant avers that the said Laura Cunningham and this affiant were not living separate and apart by reason of any desertion on his 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 vart of affi- ant, and on the 26th day of October, 1893, instituted a suit of aivorce against thisafliant, 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 D(»Elisence and extreme cruelty, but no charge of deser- tion is contained therein, nor has this afiant 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 ayers 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 . 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 srid action is iden- tical with and is, in fact, the same action as the action herein. This afiant 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- fence of the said corperations defendant, and n that way consented to become a party plain- tiff in the actfon aforesaid; that this afliant and the said plaintiff, Laura Cunningham, con- tinued to live together as man and wife from and including the 29th day of January, A. D. 1894, to and including the 15th day of Sep- tember, 1894, when the trial of “the flard 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 m:c,\lrrir\g 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 seid 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 feigninf symptoms which she did not possess, and all for the purpose of defrauding and blackmailing said defendants, the California-street Cable Railroad Compan; and the Market-street Railway Company, an acting upon these convictions this affiant, be- ing unwilling to be a party to deiraud or black-~ mail, immediately gave instructions that he desirea 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 & 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, & copy of which is hereunto annexed marked “Ex- hibit B,” incorporated within and made a part of this 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 ny fault on the part of affiant or any de- : i laintiff, Laura Cunninghain, on hispart, hut 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 art. This affiant further avers that the said aura Cunningham is not now and never has been living separate and apart from him under OF pursuant to any agreement in writing be- tween this affiant and the said plaintiff, Laura Cunningham. Further this affiant sayetn not. A. C. CUNNINGHAM. Subscribed and sworn to before me this 5th day of June, 1865, . K. DAGGETT, Notary public in and for the City and County of S8an Francisco, State of California. WANTS AITKEN RETIRED. A. 8. Newburgh Asks That He Be Given a New Attorney in the Doug- lass Case. A new turn has been taken in the case of A. 8. 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. Italso resulted in the exposure of some peculiar legal methods of Mr. Ait- ken, which has caused M. M. Foote to re- ?u:st_ the Bar Association to begin action or 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 «ensure 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 [avor. 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 todo. He said that Newburgh had proved a traitor and had wronged him by divul, ing professional secrets. He wanted to be e to tell the story in court and therefore would not consent to the substitution. Mz, Bweeney 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 nes 2ssly and throst attorneys out of couri- 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'BERN WAS DUPED. Ed Burwick Arrested for Obtaining Money ¥From Him by Fraud. Ed Burwick, a resident of Butchertown, appeared in Judge Low’s court yestert!ay 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 0’Bern, Twenty-fifth and Castro streets, who al- leges that Burwick advertised a few days ago for 2 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'Bern handed over the $70 and Burwick drew out a partnership bill of sale and banded O’'Bern a receipt for the money, which he neglected to sign. The landlore havppened 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 arun, O’'Bern pursuing him and yelling for the police. Detective Cody heard O’Bern’s cries and taking in the sitnation 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 rrom O’Bern. TWO WIDOWS OF ONE MAN Mrs. Moxley No. 1 Is Suing Mrs. Moxley No. 2 for a Valu- able Estate. She Clalms 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 is entitled “‘Elizabeth L. Moxley vs. Elizabeth W. H. Doe, some- times called Elizabeth W. H. Moxley and sometimes called Elizabeth W. 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 in this City of the above value, including land on the corner of Mec- Allister street and Van Ness avenue in- cumbered by a mortgage to secure the pay- ment of a note for $i0,000 to the Hiber: 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, 21l 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. he 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 has 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 D?Lha 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 vlaintiff 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 yesterguy long affidavits by the Baltimore widow, who is detained in'the East by an incurable cancer, were read by Attorney Hughes. In them 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. Enights 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 Wwhich it is intended to hold a public conven- tion of representative Irish-American citizens at some central point for the purpose of con- sidering the present condition ofiIrish national affairs, and the advisability of ado unil more definite and advanced national policy than any heretofore ldo%wu, and Whereas, it also appears that no home rule bill or any other measure of substantial justice in favor of Ireland is likely to pass the English Parliament through any form of constitutional egitation, be it therefore % Resolved, That this organization is heartily in favor of holdtng 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 unequale... 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 of the Colorado is visited in the summer months exclusively. The Santa Fe route_is first class all the we; through to Chicago. The ticket office is 6: Hl;ke& ::;at, Chm:’r‘ldl:b bnih:llng. 1;:: Pull- ma T8 Tun without change from San Francisco to Chicago via Kansas C’c 3 | WOULD ARREST THE JUDGE * 1 juror, had been ask Labor Commissioner Fitzger- ald Makes a Dramatic Move. HIS NOTICE NOT EVIDENCE. Justice of the Peace Groezinger Threatens to Put Him In the Bastile. 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. 4 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: 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 Cefense 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 good 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. Ihave 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- comgx}mied by. another man, presumably an officer, and 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- erald, at the same time throwing back the apel of his coatand 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- ness,” said Fitzgerald coclly. *‘And so I am to be arrested for not con- sulting vou 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 as quickly as you can or I will have you run into the bastile.” “But—" said Fitzgerald in an altered tone of voice. “‘No buts about it,” said the Judge. “If ou 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 ou?’’ . “But 1 have consulted the District At- torney,” insisted Fitzgerald. “You had better goand 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. T0 PROBE MEYER'S DOUBT. Contempt Proceedings Will Follow the Paulsell Jury Disagreement. The District Attorney’s Office to Investigate the Matter 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. 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 fora 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 hct{hat 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 an 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. . 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- otto'and was ready tolisten to any proceed- ings instituted by him. T. Peixotto said that he would make a motion in the matter supported by an 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 his duty to have declared it. But he had not done so. He was of opinion that the attj. tude of the juror might prove to haya constituted gross contempt. Any actioy however, that he might take would be i the simple execution of his duty as aj officer of the court, and was not influenced in the least by his appearance for (hg State in the case of the People ve. Panls it He would appear in the interests > mon justice to protest against the casting of odium upon this cour anv othes co‘u‘rt.F % L or any other V. E.Paulsell has been re $10,000 bond, his mother b(-inz]: I ased on g urety. SHIPPING GREEN FRUIT, Sent by Ventilated Cars to Chicago on ® Fast Freight Train, The first cars of green fruit of the season were shipped 34 at midnight W ednes ‘\'JA';‘\:"UI;:"’: was packed in ventilateqy cars a‘r:‘d a special train was made up train is to have right of way over everything, and will getinto Chicago in 120 hours. It went by way of the Central Pacific, Union Paci. fic and North Western lines, The next train is to leave at midnight on June8. If the service proves successtul trains will then be run at frequent inter. vals. The use of the vent ars will prove a great saving to the growers Up to the preserf, near! fruits have been shipped in ref cars. The iceing of these is ve sive. The railroad company now pron to get fruit through in the ventilated c so expeditiously that no others will be r. quired. This will save $100 a car, or half a cent u pound on the fruit. The hour for starting is fixed at mide night because the local trains arrive in S amento 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. S 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 cruelty 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 he decamped and dragsed his wife by the hair of her head from her residence on Twenty-third street to his home on Twenty-first. ‘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. A Question of Harmony i is scarcely in point if the instrument be a Zimmermann 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 reasons able in price. Prices, $4, $5, $10, $16, $20, $28. The $5 Style is the Host Popular. YOU CAN PLAY IT IV TEN MINUTES. Delightful Company for Your Sum= mer Outings, in Camp, Aboard Ship, Anywhere. SEE DISPLAY IN WINDOW. Call and See This Simple Instrument SHERMAN, CLAY & CO. MUSIC DEALERS, Corner Kearny and Sutter Sts,, S. F. TEE GREAT MOISTURE ABSORBENT “HUMIDINE” Keeps Refrigeratorsdry and sweet, preserves meats, butter, milk, etc., economizes ice, removes refriger- ator tasm:! and odor. grocers and druggists. PENNA. SALT MF@. CO. Also, Mfrs. Lewis' 98% Powdered Lye, Philadelphia. People in San Francisco. The (nequaled demand for Paine’s Cel- ery Compound among the people of this ciiy is but one index of the great_good i L is affidayit this morning. The affair had as- sumed such an aspect that it could not be ignored. Juror Meyer, as every other whether he knew of doing. There are many in San Francisco whom It has cured of serious illness. Paine's Celery Compound makes people well who suffer from weak nerves or impure blood.