The daily gazette., 1879-05-27
FIFTH EDITION.
The County Courts.
THIS MORNINGS PROCEEDINGS.

COURT TO ADJOURN FINALLY ON FRI |
DAY YNExT-sHERIFF SALE SET ASIDE |
THE MAGARITY CIsE CONTINUED.
Especially Reported for the Gazette.1
NEW CASTLE, May 27.-Courts OPEN
ed at 10 o'clock, this morning, Judges
Comegys, Wootten AMI Ilo iston on the
bench.
Judge Comegys announced to the bar
the Court would be adjourned for the
session on Friday next, at noon, and di-
rected the members to prepare their
business accordingly.
On application of Levi c. Bird, ESQ.,,
for rule to set aside the Sheriff7s sale
of the property of Rachel Whitlock, of
MiddletwOn, the rule was made abso-
lutte and the sale set aside.
The case of Sybilla McCaulley, as
signee, ~. tt omas L. Lally, surveying
mortgagor, was, on the application of
Levi c. Bird, ESQ.,, counsel for
the defendant, continued until the
next term, Mr.. Lalley testified
that q witness material to his defence
was absent from the State.
Tbs Magarity damage case was then
resumed and E. q. Bra afford Jr., E,q.,
addressed the jury for the defense. He
argued that Mr.. Magarity not only bnilr
his house on low, marsby, spongy lot,
but built IL without having the proper
elevetions established. Therefore he
built at his peril. Mr.. Magarity asked
the city to raise his sidewalks, but when
the work reached his gate he refused to
allow 1t TO go any further.
| The main question, Mr.. Bradford said,
was Did the Monroe street sewer leak,
and II so, did the water penetrate into
the plaintiffs cellar 10 such q manner as
10 cause him damage. Upon this point
here is only the testimony of one wit
ness, and this testimony is more mat
ter of conjecture than OF positive knowl-
ledge.
In regard to the proof for the defense,
Mr.. Bradford argued that it was positi-
vely shown that no water came into the
cellar from the sewer, unless 1t came
through the drain pipe which was put
into the cellar at Mr.. Magarity's request
and at the city's expense. This fact was
further proved by testimony TO the effect
that the bottom of the sewer was 262-100
feet lower than the bottom of the cellar,
at present
Mr.. Bradford also argued that in any
event the plaintiff would on'ybe entitled
to damages for three years previous to
the bringing in of the suit. and as he
had not proved that any damage had
been sustained during this time, he was
debarred from any award Of damages by
the statute of limitation.
In conclusion Mr.. Bradford said what
ever loss Mr.. Magarity had sustained he
had brought upon himself, and therefore
. | in view Of all the facts of the case, b,
would ask the jury for clear verdict ii
favor of the city.
At 1l:15 o'clock, Mr. Bradford finishe,
his argument, and Mr.. Lore proceede,
} to maze the closing argument for tn
defence.
Mr.. Lore, after citing some legal au
thorities to the Court, addressed himse
to the jury, in support of the plaintiff
case. He reviewed the exceptions take
by the counsel for the defense to the tes
t,mony of Miss Magarity, and said the
evidently felt the weight of her full pos
I tive and direct evidence, and knew the
in breaking 1t down. Their efforts, ,hov
ever, we're so f1imsy that they simp
showed how desperate the defense real
a felt their case to be.
Mr.. Lore referred to the fact tn
/, while no legal grade had been establis
. ed on Maryland Avenne, the curb hs
been laid for years, and the City Surve
: | OT, ~ Aulcl \ dIt y, k0NG buC I'LL
for the erection Of the house, and M
Magarity took his receipts for the pa
ment of the usual fees for the work. II
l. argued that the fault for any damage r
sulting from the lack of grade on tn
Avenue was on the part Of the city, an
!. not of Mr.. Magarity.
In regard to the statute of limitatio
~ plea made by the defense, Mr.. Lore sal
D isthe statute of limitation is the rogue
pleading" and for the City of Whining
ton 10 come h re and protect herse
= with the limitation shield, is the last a,
a of tinesse the city could be guilty of in dc
7 fond, ng hel self in this case.
In relation to the proof that Mr.. Ma
garity's property had sustained damae
Is from the Monroe street sewer, Mr.. Lol
,g proceeded to read the different petitsoI
'n De lation TO the subject. These petition
~ were backed with the reports of IL
aS committees to which they were referre
most of which reports admitted the diff
T. Guilty complained of, and suggested plaI
of remedy, which, however, were new
carried out.
Mr.. Lore proceeded to review the ev
dence for the plaintiff, with the view
showing that it con clusively proved Il
II. water came from the Monroe sire
sewer, and from nowhere else. The tie
timony Of Miss Magarity in this respe
u. was undisputed, and she testified po:
IN lively that previous to the buildil
r.. Of the Monroe street sewer t
cellar was perfectly dry, which
,,u soon as the water was turned into &
~ sewer it ran into the cellar and has be-
there ever since.
The argument then proceeded to she
that the leakage was due to the lmpe
feet and negligent construction of t
sewer, as proved by the testimony of t
N very mon engaged In the work. On Il
ground he asked for q verdict in fav
Of his client
At12.25 Mr. Lore concluded his arg
ment, and Judge Comegys, mistaki
the time and thinking it was ha
past one o'clock, discharged the jury u
s., til three o'clock, and ordered the or
10 adjourn Court until that time. Up
n noticing his mistake Judge ComeRys
scinded his order, but as somo of t
R jury had quickly slipped away from t
Court room, the case was dropped un
afternoon, and another taken up.
X, The case of Geo. H. Hollis us. Isl
RI W. Vandegrift was next tried. Th
were two suits in this case, the first
ing against Leonard G. Vandegrift,