The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-03-29

body street in Durham. Judge Pur-
nell wrote an opinion in which he held
/ With the defendant railroad company.
/ The city of Durham appealed and
| afterwards agreed. as is well known
| for the purpose of obtaining a Union
depot, to abandon its appeal. Where
upon judgment OF Judge PurnoH
evidently written by railway lawyers
and as much broader than the subject
of the litigation as the sea than
the river was affirmed by the higher
court according to the technical terms
of the compromise. and under this de-
cree it is that the Southern Railway
sets up it's right to Pettigrew street,
piece of ground that had never be-
| fore, nor at the time of the filing of
| the decree referred to. nor even yet
/ before the midnight laying of the rail-
way tracks and the injunction sued out
| by the city authorities was in litiga
ton. 1t is for that action. in the seek
ing of redress from a court, that the
citizens of Durham. interested parties
as they are, are to be attached for
contempt
The facts in the case of the decree
| of Judge Purnell are that it was made
on what is called "cross bill'' of the
railway, that is an answer to the COM
| plant which seeks affirmative relief
And the law as to a cross bill is set
! tied that it cannot allege or ask any
thing beyond the matter in litigation
in the suit In the case out of which
the decree arose, it was only Peabody
street which was involved. The de-
cree based on the cross bill. includes
the possession of Pettigrew street
| Whether the failure of the town of
| Durham to avail itself of the error in
the relief asked by the cross bill es-
tops il from afterwards asserting title
to land included in the decree is n
matter of law, and a close one at that.
| Ask the average lawyer whether under
any circumstances an action of eject
ment can be maintained OH a replica
ton or a cross bill and see what he
will say. But, to say that a person
honestly seeking TO test such a propo-
sition in a court is guilty of con
tempt of the court which issues such
decree is a proposition which it is
waste of ink to PROFOUND.
Another thing about this Durham
matter: who is in contempt anyway?
1 Isn't Judge Pritchard going q '1eetle
too far" in holding, as his rule against
the Durham authorities and John
4 c,p,,,o+ Hin would CaaDo RI in6ioo 70
| that an application to a State Judge to
pass upon some questions of law re-
lating to a matter that may or may not
have been passed upon in a former
decree of the Federal Court is mat
| ter of contempt?
! Suppose that Judge PEBBLES should
| issue a rule against Col. Andrews and
Major Guthrie to show cause why they
should not be attached for contempt
for applying to a Federal judge for
rule against humble suitors in his
| (Judge Peeblcs) court; and then, sup
pose that Judge Pritchard should is
sue rule against. Judge PEBBLES for
| issuing a rule against his (Judge
PritchardsN suitors; and then. that
Judge PEBBLES should issue a counter
rule against Judge Pritchard for is
| suing a rule against him (Judge Pee
| bles) wouldn't there be a pretty maze
and mess?
The Superior Court of North Caro-
| lima is no pic poudre court and Judge
| PEBBLES is no pie poudre judge. nor is
+; the Federal Court the one nor Judge
| Pritchard the other. Both the courts
and judges are of high and equal dig
nifty in their particular courts and
spheres, and until a bill of peace" is
| filed and a decree granted against a
persistent litigant pursuing a particu-
| lar defendant in respect to a particu-
| lar matter, writs may be issued and
contests Waged in the courts without
| limit and without contempt
There is just this about the carrying
Of concealed weapons, that the flash
ing of gun by any one man in a
community breeds the pistol "toting"
habit so surely as April rains breed
| onions; and the too frequent and
ready pulling of rules of contempt by
| the judiciary can have the only one
effect of giving it a frequent and a
sneering target for it's balls