Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1893-07-06
MR.. ADDICKS' DEMURRER,
1t Is Now Record Of the Cham
cellor's Court.

The Definite, Initintpry Step In the Im-
portant Suit OF j. Edward Addioks
Against the Street and Sewer Depart
ment of Wilmington.
Following is the text of the demurrer
of John Edward Addicls and others VS..
the Street and Sewer Department. of this
city in the latter's effort to prevent the
Oxy-Hydrogen Company from laying
gas mains in the streets of Wilmington.
The document has been on file since
June 2Sth and is signed by counsel for
the defendants, Messrs. Austin Har-
rington and Herbert IL, Ward.
THE DEMURRER.
The Mayor and Council of Wilmington, q
municipal corporation of the State of
Delaware, at the instance of Joseph l..
Carpenter, Jr,, J. Newlin Gawthrop and
Samuel Chambers, the Board Of birec-
tors of the Street and Sewer Department
for. the city Of Wilmington. com
plainant,ys. John Edward Addicks John
9. Baker, Frederick p. Addicks, Simon
y Condo and Samuel Austin, defen-
dants, In chancery, New Castle county.
Injunction bill.
The demurrer Of John Edward Addicks,
John q. Baker Frederick P. Addicks,
Simon b. Condo and Samuel Austin, de.
PENDANTS, TO the bill of complaint OF THE
Mayor and Council of Wilmington u
municipal corporation OF the State of
Delaware, at the instance of Joseph l..
Carpenter, Jr,, ]. Neylin Gawthrop and
Samuel Chambers, the Board of Directors
OF the Street and Sewer Department for
the city, of Wilmington, the above named
complainants.
These defendants, by protestation, not
contrasting all or any of the matters and
things in the complainants' bill of COM
plant contained to be true In such manner
and form as the same is therein set forth
and alleged, do demur to said bill, and for
cause Of demurrer show that it appears
by said complainants' bill that the Oxy-
Hydrogen Company Of the State Of Della
ware, therein named, is necessary party
to the said bill, inasmuch as it is therein
stated In The fifth paragraph thereof that
said Oxy- Hydrogen Company Of the State
OF Delaware, by its counsel had notified
the Board of Directors OF the Street and
Sewer Department that it was its intention
on the thirty-tirst day of March, A, D.,
eighteen hundred and ninty-one, to begin
laying gas pipes IN the streets Of said
city OF Wilmington; that by section sixth
thereof it is further alleged that the pres.
ent defendants claimed to be officers, SER
wants and agents of said company in the
opening and excavation of Liberty street
in said city, as therein set forth; that by
paragraphs seventh and eighth OF said
bill, It appears that said company was in
corporated by an act of the General AS
sembly OF the State of Delaware, copy
of which act is to said bill attached and
that said defendants claimed to be acting
hereunder; that by paragraph eight OF
said bill, Ii appears that the organization
of said company is called in question BY
said eomplainantsi that by paragraph nine
and other paragraphs of said bill, it
is alleged that even il said company is
possessed of legal organization il would
not have any right or authority under said
act without the permission of said Board
OF Directors of the Street and Sewer De
partment to enter upon, open or excayate
any of the streets of said city for the pur-
pose of laying, gas pipes therein; that it
further generally appears by said bill that
the whole scope andobject of said bill is
the determination of the rights and
powers, of said company under its
streets Of said city, and that the result and
effect of said suit will be to judicially de-
termine the rights and powers of said COM
pany under Its said charter; but he said
complainant has not made the 0xy-
Hydrogen Company of the State of Della
ware a party to the said bill.
WherefoTe and for divers other good
spnSSS VI hSihuflST dpptaTlllg III bne SAlu
bill, the defendants do demur thereto, and
humbly demand the judgment OF this
court whether they shall be compelled to
make any further or other answer to the
said bill; and pray to be hence dismissed
with their costs and charges in this behalf
most wrongfully sustained
AUSTIN HARRrEeToN,
H. IL. WARD,
Solicitors for defendants.
The defendants, the 0xy-Hydrogen
by their counsel, are ready
to argue the matter, which practically
briggs up the main question without
further delay, and 1t is presumed that a
date wlll'be fixed shortly for hearing
Of $fglment before the Chancellor.
Tho demurrer, which has now been a |
matter OF record since June 2Sth, is the
position that defendants take as to the |
rights of complainant to maintain their |
suit under the present bill filed.
The first step, If decided in favor of |
defendants, the oxy-Hydrogen Com
pany, will in effect be to dismiss com
claimants THE Street and Sewer Depart
nSnt bill Of opmplaint.
The afidavits appended to the de-
nprrer are sworn to by all Of defend.
tnts that the demurrer is mot interposed
'ordelay.