The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-05-29


have been had he made his application in January or
February last when It would doubtless have been
granted without annexng to the order terms con-
ditons whatsoever The circumstances which relied
on IN his are that he attached great importance 10
the actual Of the witness upon the trial. and
lying upon the positive Of herself and hus
band that she would come to this city when required
believing that her present attendance could without
difficulty be obtained that in this confidence he deemed
until the approach Of he period he supposed the cause
might be tried but that he wrote TO her husband the
Goth Of April desiring that she would prepare to
TO this city upon being teegraphed to that effect and
that his reply stating the impossibility OF her
pliance with his request, was not received by him
until the twenty-hrst Of the present month. The
circumstances thus detailed while they account
for the conduct Of the defendant, are very far
from showing that he has acted with the reasonable
diligence that the law requires bile they explain they
do not his aches Ills reliance upon the assur
of Mrs Flower and her husband justified him in
not applying for commission in January last but does not
his omission to write to them for the purpose OF
ascerainng whether the that had been given
would be fulfilled In delaying TO write until the 18th OF
April he acted at his own peril. lie took upon himself
the risk of the being called for trial. as 1t well
might be- at earlier day. and certainly looking at the
Of that from the neglect Of the PARTIES
their counsel witnesses constantly down upon
the calendar he had right to suppose u at the cause
would not be called as 1t actually has been, at the
present term Yet had Mrs Flower been prepared to
comply with his wishes, ii does not appear that any
Geographic notice sent to her she could not have
been here in time for the trial The loss therefore, Of
trial at this term is not much owing to the disappon
ment ofhs expectations that she would attend to his
omission to request her attendance. Although L
clearly Of opinion that the laches Of the defendant
have been fully excused am not prepared to say
that they have been such to render it necessary to
deny absolutely his application If he choose to take
a commission at the risk of its being executed and
returned before trial. he is at liberty to do SOL bus If
he desires in addition stay Of proceedings 1t only
be granted upon the terms that deem to be equitabe
and deem 1t to be equitable that if the plaintiff shall
be enjoned from proceeding to trial. he shall be sub
eced to similar restraint 1t is not necessary do
deem it expedent, TO state all the thai have
led me round to this conclusion | shall not inquire
whether the defendant far resident in Pcnnsyl
vana as to give jurisdiction to the court in Philadelphia
in which his suit for divorce has been instituted
shall impute to him blame for the institution of that
suit express any opinion to the proprety Of the
injunction by which he has been restrained from its
further prosecution. To justify the discretion that
now exercise It Is sufficient to say that in my judgment,
the plaintiff has been rightly advised to enter ap-
pearance, and to interposc defence, in that suit in
Philadelphia; and that, taking into consideration all
the circumstances Of time and place, and persons
satisfied that il Is in this city that charges against her.
self and her husband may be heard and decided not
only with most convenience to the parte les but with the
fairest chance Of equal justice The defendant Knows
that the suit in Philadelphia will not be defended and
II seems TO me most unreasonable that he should
be permitted to obtain decree against his wife
by default aud upon &c parte evidence, when by his
negligence, from the consequences Of which he seeks
to be relieved he prevents trial. which, by its full
and open investigation Of the merits upon both Sides
would lead to determination Of the entire controversy
II he anxious to proceed in trial in which all the te
mony the part Of his wife will be excluded, he has
thereby right to complain if by his want OF pro-
and reasonable diligence he loses the testimony Of
u
in the pending suit in Pennsylvania that the defendant
obtain the relief Lich he seeks In the suit in this
court he is only defendant, and consequently, in this
the judgment which he desires should he prevail
in his defence cannot be given but there noforce in
objection which he may at elect TO remove 1t
is in his power to file his complaint against the
plaintiff prcferring against her the charges that
contained in his answer and seeking against her the
relief that she has pray for against himself The two
suits will then be treated one there will be the
issues in both to be heard at the time and upon the
evidence and If he shall succeed in establishing his
innocence and the guilt Of his WIFE decree upon the
terms which he desires must necessarily be granted.
and will be granted by judgment, far advanta
geous to himself than that which, under existing cir
curnstances he alone obtain in Pennsylvania, and
by Judgment not cucctua only in a single State but
valid throughout the Union. For these and other
reasons, which deem II needless to specify sats-
fed ought not to grant to the defendant the dscre
tonary relief for which he asks unless bis assent shall
be given 10 the condition that propose. The motion
defendant shall file within two days stipulation in
writing signed BY himself his counsel that the motion
in the supreme Court for dissolution Of the injunction
which has restrained him from the prosecution OF his
suit In Pennsylvania shall be suspended until this
shall be reached for trial at the October term IL Is
however. only 20 this condition that intend that the
order for stay OF proceedings shall be subject do
think that the defendant be justly required 10 make
any further advances TO the plaintiff to enable her to
sustain the expenses Of the litigation In which they are
engaged. The annual Of $500, in quarterly pay
ments, regard being paid 10 hi fortune and her wants IL
seems TO me- ample and liberal allowance sufficient
not merely for her usual support but to provide
the extraordinary charges to which she Il succt
but II II shall hereafter appear to be Insufficient the
Court, upon proper application and proper evidence
would not refuse to direct the payment such further
sums as shall be proved to be necessary.