The New York herald., 1877-11-13
THE BELILGERENT DOCTORS.


Dr. Benjamin W. Hawker and Dr. Z. Newton Whito.
head formerly business partners have been for some
time past engaged In open aud bitter legal warfare
against each other As ono OF tho strategic move
ments In tho struggle DR.. Hawxcr brought suit
in tho Marine Court against DR.. Whitehead to
recover $4,000 damages Tor alleged malicious
prosecution Tho alleged prosecution, as set out
IN the plaintiffs complaint, was that tho do
iendani caused his in Of district courts
Tor alleged malpractice, on the complaint Of one Mag
gle Maglome; also that on complaint OF tho same
woman, through tho procurement of defendant he
imprisoned crimlnally during ave hours. but was
subsequently, discharged by the decision Police JUS
tice Flammer TO this complaint a demurrer was IN
terposed on behalf OF defendant by his counsel Mr.
Herman Stefe tho ground OF demurrer being that
tho complaint did Iot state iacts sufficient to cons
tutc cause OF action. On argument of the demur-
rcr, before Judge McAdam, III Marine Court, Cham
bers, yesterday IL was contended by counsel ON bo
haiti OF the defendant that II did not appear by tho
complaint that the suit IN tho Dis rict Court mad bocn
termnated that in the criminal matter the mere dis
charge by magistrate did not amount to an acqua,
and that action would lic for damages unless the
action complained OF resulted in acquitta In
dering his decision the demurrer Judge McAdam
SAID mat the simple charge tnat the defendant malc-
iousy caused the plaintiff 70 DC sued by one Maggie
Maglome aud that the SUIT resulted in favor OF the
defendant therein was not sufficient Something
moro than general allegation that SUIT was
commenced maiiciously must be stated; tho
particular grievance must DO alleged. The gist OF
these prosecutions arises from some evil practice
malice in MIN who sues or pfoseoutes The deendant
In this not even party 10 tho action IN tho
District Court aud IS abie Tor 1t under
any OF the authorities he could lind. The second
cause of action was that the defendant malicousy
caused the plaintiff 10 be arrested by Maggie Aaglomc,
and that ne subsequently discharged. How the
plaintiff arrested by Maggie Magome does not ap-
pear The Court will take judicial notice OF the fact
that Maggie is law officer, and that the arrest
must have been made by Maggie, II at ALL In some
manner not alleged The complaint does not show
that discharge final and that the prosecution
terminated with it, The character of tho prosecution
set forth loosely IN the complaint that was
hard 70 tell much about It. The Judge concludes by
plaintiff to amend on payment OF $40 costs within
days
POWER TO PUNISH CONTEMPT.
case involving the power Of the Court to punish
for contempt up yesterday before the General
Term of the Superior Court In the well known Of
Bininger against Clark, and order made direct
ing Thomas j. Burr, as receiver OF the firm OF Binin
ger Co., to pay to George N. Titus counsel fees,
the sum OF $5,237 So During the pendency OF the
action the firm adjudlcated banKrupts aud John
s. Beecher was appointed assignee, aud AN order
mado directing Mr. Burr, receiver TO transfer the
assets that his hands such to the
assignee under tho bankruptcy proceedings subject
to the lien of Mr.. Titus, II any, Tor counsel
fees. Under this order Mr. Titus made application Tor
lien, ana although opposed by Mr. James Henderson,
attorney Tor Mr.. Barr, order made directing
the 81 the money ana or Sis 81 sars
him guilty OF contempt, at tho same time granting
stay OF proceedings account of the importance OF
the questions raised pending the appeal before the
General Term. Sir. Henry Z. benson, counsel for
Mr. Barr contendcd that the order directing Mr. Barr
to pay the money In question was illegal nasmuch as
the assignee IN bankruptcy became vested with the
tito to all the assets that his
hands recover; that, assuming the order to bo
correct, then flee could be imposed for dis
obedience Of It, IL could only be enforced under the
fourth section of contempts which only
authorized the issuing OF precept which was IN the
nature Of an execution against tho person and bail
able. On the part OF Mr.. Titus It was argued that
disobedience OF order 10 pay money could only bo
punished under section uf the statute of contempts,
for the that It tended defeat the rights OF
party and that under that section fine could be i'm
posed. Ex-Judgo Jones, In reply. contenued that VI
the position OF opposing counsel correct thcn the
Court had power to impose nne beyond $3.50, un-
less ual damage proven which in the present
had not been done, and tho order could only be
enforced by preccpt Various decisions were quoted
TO support his argument After nearing a lengthy
argument the Court took the papers and reserved
ciSion.