Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1895-04-11
ADDIcKs SCORES a VIoToRF.
The Order to Take Testimony in the APP
plieation for Receiver Vacated By tn,


piication for a Receiver Vacated By the
Court.
]. Edward Addicks scored another vic.
tory in the United States court, yester-
day. when Judge Wales, on motion of II.
II. Ward, vacated the order made by the
Court directing S. redmond Smith, ex-
atniner, TO examine witnesses and take
testimony in the case of the Bay State Gas
Co. of Delaware.
On March Both, William c. sprua nee
and Edward q. Bradford, representing
Thos. II. Mcdonnell of Boston. who is a
stakeholder i'll the gas company, filed a
bill in equity in the United States court
here, asking for u rule to show cause why
preliminary injunction should not be
granted and a receiver appointed for the
Bay State Gas Co. of Delaware.
Judge Wales granted an order restrain
ing the Bay State Gas Co. of Delaware,
from disposing of any of its security while
litigation was pending, and made the rule
returnable OH April 25th. He also made
the order providing for 5. r. Smith us eS-
aminer, to take testimony i'll order that
the same might be read on the day court
convened for the consideration of the APP
plication for the receivership
On the Monday following the filing of
the bill for u receiver, Mr.. Addicks and
his counsel came into court and secured
the release of the bonds as mentioned
above. The next step taken in the case
was the fixing of day for argument on
the motion of Attorney Ward to compel
the complement to give security for loss
to the defendant company by reason of
the proceedings for the receivership. This
argument was heard oil Monday last aud
| nothing definite was dontn. the matter of
security at that hearing. The case went
| over until yesterday morning.
In his opening argument Mr.. Ward
cited u long list Of authorities and stated
that he was convinced that there is no
rule of this court or law of the
| State of Delaware that would authorize
or permit testimony to be taken in the
case at this time. He held that the proper
way to get at the evidence was by eX parte
atfidavits and there was no precedent
allowing the testimony to be taken in
such cases by examiner. His whole argu-
| ment was ON this line.
In replying to the remarks of Mr.. Ward
H. G. Bradford said the learned counsel
was cndeayoring to surround the kernel
of this case with a chestnut burr, that is
very difficult to handle He reviewed ell
the points raised by the counsel OH the
other side and then went into citation of
authorities He held that tho motion tc
vacatc the rule to take testimony was
made for the express purpose OF keeping
from his honor the knowledge in tht
the affairs of the bay state Gas Co.
In the course Of his argument agains
the yacating Of the rule to take testimony
before an examiner he said there was M
rule in equity against taking oral testi
nouy. He saiC that oil Monday when tn,
learned counsel Oh the other side wa!
asked TO give some estimate Of the damag'
which the restraining order might do 4
the company. lie (Mr. Ward) had declnet
to do 50 on the ground that 1T would b.
placing weapon in the hands of thu
enemy" He said Mr.. Ward was deter
mined not to let the Court hear the eyi
dence of Addicks and Miller.
William q. Spriauce followed in nm nd
dress To the Court in which he Ciiet
authorities permitting oral testimony ii
such cases and denied that the law re
stricted the evidence to eX parte atfidavits
Judge Wales decided the matter b,
issuing an order vacatinS the rule proyid
ing for the taking OF testimony by an eX
aminer, and said the taking oil oral teati
mony was not the proper procedure in thi
case. He said that he Reluctantly granite,
the order in the first place and tho onl,
thing left for him to do at this time was 1
vacGtethe rule.
Judge Wales held the matter of secunt
under Amusement,