The semi-weekly messenger. [volume] (Wilmington, N.C.) 1897-1908, 1904-06-07
(SpeciaI TO The Messenger.)

tSDecldl 10 Inc Messenger
Raleigh, y. c., June 2.-Interest
conferred this morning in the hearing
before Judge Purnell of the matter
of the bond of S25, 900, which Chief
Justice Fuller, of the United States
Supreme court, directed to be given
in order to terminate the receiver
ship of the Atlantic and North Caro-
lima railway and replace the road In
the hands of the state. The proceed
ings were comparatively brief. 1t
was stated yesterday that the attor-
news for the receivers would try to
make a fight against the acceptance
of the bond by Judge Purnen on two
grOundS-first. the order of the chlef
justice was not operative, and second
ly, that a writ Of supersedeas would
not replace the property in the
hands of the state.
Judge PurnelI on taking his seat
stated that he wanted definite infor-
nation. first, whether the order of
Chief Justice Fuller, having been
signed outside this circuit, is effec-
tive. as if that were true. Rule SO of
the Supreme court must be suspend
ed, and second, to know If the writ
of suDerSedeas were of restitution.
He said that the court desired to do
it's duty as it saw it, but. Of course,
frequently made mistakes. These
two questions are troubling the court,
questions of doubt. He referred to a
recent decision that a circuit justice
had no authority TO sign an order
outside of his circuit. These queS-
tions the court desires cleared. He
added that the court had no interest
in this litigation.
ATTORNEY Argo for the receivers
cited Section 719, revised statutes,
holding that no justice OF the Su-
preme court shall grant an injunction
or restraining order of the court out
side of such circuit.
ATTORNEY Busbee for the state and
the railway, said his side did not de-
sire to discuss the matters suggested,
thinking that the only jurisdiction
that the judge has in the premises Is
to pass upon the form and sufticiency
of the bond. He said he understood
from the questions that the Judge
had raised that he had passed on the
matter of the form and sufficiency OF
the bond, and asked him TO ADVISE
counsel if this were so.
Attorney w. w. Clark, for the re-
c~eivers, said Busbee'S proDosltlon was
rather novel; that if a writ OF super
sededs is TO become effective at all,
it must be aided by some additional
writ: that if this writ is made effec-
tive by Judge Purnell, a writ of man
damus would have to be added TO
make it so. He commended that by
the refusal of the other side to argue,
it admitted the writ of the chief JUS
tive to De ineffective. He said that
the matter has not been called TO the
attention of the chief justice; that
he writ of this court a. been exc
cuted and the receivers put In pos
session of the road. He said the
bond could not be approved, on the
distinct ground that the supersedeas
is ineffective, and that the other size
ought not to ask the court to give
validity to annuity. The writ OF SUI
persedeas, he commended, was not a
writ of restitution. 1t puts in motion
no machinery of this court, but mere
ly stops the machinery. You can't
get at the receivers under a superse-
IDEAS. The only way to get them out
is by a writ of mandamus, or by a
writ of assistance. o can't get
them out by contempt proceedings.
He declared that the chief justice was
expressly prohibited by statute rom
interfering in such a matter, and tnat,
second, it was not for Judge Purnell
to give effect to annul an order OF the
chief justice.
Attorney T. S. Fuller. for the state.
cited an opinion of the Supreme court,
WHICH, liz Sdlu pLCAISSAS $3.50
case. He made no but
merely read it. The Supreme court
in this case held that a district judge
had erred in attempting to set aside
an order for bail, granted by the
chief justice, but the Supreme court
allowed to such a judge to do what
he should have one INT carry out
it's order.
Attorney Day, for the receivers, said
that the supersedeas was merely an
order suspending the power of the
court below and was not retroactive
where execution was already issued,
the only remedy being a writ of re-
stitution.
The judge asked if either side wish
ed TO make further statements. and
being old none, said that by the act
of Congress the chief justice OF the
United States Supreme court is the
presiding officer of this court. but in
his absence, and in the absence of
the circuit judge, the district judge
exercised authority for them both,
yet the chief justice is the presiding
Officer and this court VIII defer to
and respect that authority. The de-
eision cited by counsel has been modi-
fed, if not overruled, by more recent
decision. He said he had very seri-
Gus doubts as to the sufficiency of this
rule or the authority of the chief
Justice to sign it outside the circuit;
also very serious doubts as to the eff