The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-03-25
BY r.. l.. GRAY.

Durham. N c., March 24-The tenn
porary restraining order granted by
Judge PEBBLES to the city of Durham
on Monday last which operated to
prevent the continuance of work by
the Southern Railway on the moon
shine" tracks which they put on Pea
body and Pettigrew streets in the
small hours of Monday morning was
continued to the hearing by Judge
PEBBLES this afternoon, after several
hours spent in the hearing of affidavits
from the city and the railroad and an
argument of possibility an hour all
told, which took the form of debate
between the judge and the attorneys
for the Southern, Messrs. Manning and
Foushee sitting by during its course
without participation and merely as
interested spectators
The road relied almost entirely in
their argument on the ground that the
decision of Judge Purnell in the mat
ter of the Peabody street litigation, in
which he held that the Southern, as
the lessee of the North Carolina Rail-
road, was entitled to the possession OF
the original right of way of two hun
dred feet, was binding on the town and
operated as an estoppel against it by
reason of the fact that the appeal
which was taken to the Circuit Court
had been withdrawn by consent of
the parties and the decree of the court
below affirmed by decree of such Cir
cult Court of Appeals.
Judge PEBBLES, however, took the
view. first that the decree entered in
the Court of Appeals was consent
as a deed inter parties" which could
not be held to ALLEVIATE the right of the
city TO appeal to the courts for subse-
19ra F11af
the decree amounted simply TO set
tlement of the contentious existing at
the time it was entered, which had
relation only to Peabody street and not
to Pettigrew, and could not be availed
of to prevent the city seeking an in
junction against nuisance; and. final,
IL, that the practice of the courts was
invariable that in the case of a special
injunction, such as the restraining or
der in point-where the restraining or
der itself constituted the relief asked
the restraining order should be con-
tinued to a hearing.
Stripped of legal terms. the decisions
OF the judge amounted to a finding
that while the city of Durham in the
Peabody street litigation might have
bound itself by a submission to the
decree of the Federal Court as to
questions affecting Peabody street, out
of which the then litigation arose, tina:
consent could not be held TO bind or
estop the city from asking redress for
other matters arising subsequently
with regard to another street and not
contemplated in the contentious of the
suit so settled.
Judge PEBBLES. during the hearing,
was the same good natured, brusque.
and withal peppery man. who added
such sauce to the famous Lumber
ton bar contempt proceedings He
sent hot shot into the railroad lawyers
with the same grim smile and the
same ready and biting retorts, and evil
IDENTIFY enjoyed himself after his usual
half-exasperated manner Mr.. f. II.
Busbee and Major Guthrie made sew
eral starts to beard him, but he replied
with interest, and while the argument
never lost its good nature. it several
time sshowed beneath its current 2
thrust and parry which were not ex-
aetiy of judicial or purely argumen-
tative nature.
No Crowd at Hearing.
Although "moon-shine" is still the
one topic of conversation in Durham,
the people generally We're too busy TO
attend today's hearing in force Ten
O'Clock found the Judge cleaning up
the ends of the docket with the law
yers interested, a few members of the
bar and a half dozen citizens sitting
moodily in attendance. As the hear
ing proceeded, however, people came
in by ones and twos until the room
was fairly well filled.
The railroad attorneys and officials
sat together in a group on the right
hand side of the bar In the middle
was Col. A. B. Andrews, First Vice
President of the road, a large and
quiet picture of strength and dignity
carefully groomed. his thin. silvery
hair close clipped and smooth brushed
regarding the scene with the heavy
eyes OF restraint of smart man leav-
ing things TO his lawyers. passive and
yet thoroughly alive. Around him sat
Major Guthrie. +. II. Busbee, ESQ
quick and aIertly nervous as usual: A
B. Andrews, Jr., Jas. II. Pou. waiting
TO say the last word of demnnstra-
ton; W b. Guthrie. Jr., local attorney