New-York tribune., 1874-12-02
ARGUMENT OF WM. NJ. EvARTs.

heeanse the order OF The Special Term expressly
based upon alleged want OF power Ia the Court to grant
tie defendants motion for bill Of particulars He
claimed this On tliAed in any material degree,
by the words land on the other grounds stated" These
ether grounds are not Of discretion The
decision was made, appeared from the opinion OF
Judge Nelson, the theory, first. that Sec
55 OF the Code the sole source OF authority 10
the Court, and the Code did not give the Court
power TO orIcr the particulars in such case as thIi
and second that the practice Of the Courts prior to the
Code established precedent which would justify an
order for particulars in this case, even II the
Code out OF the way. Now the non
existence OF any practice which would by analogy
Justify the order demanded by the defendant,
would have established the want OF rShtful
power the Court e1ectually the omission OF such
authority from statute creating court OF special
Jurisdiction. Tue Courts nave such discretion
invent absolutely practice for use
IN old and familiar proceedings. And Judge Nelson's
decision proceeded entirely upon the ground that
order for particulars IN this ease would bo just
such au abuse OF discretion this. He docs
not say that TO grant the motion would be merely
.unwise Or tnliscreet" He says II would he "repre-
hensibe" scrOds and dangerous innovation. Tins
not the guHye OF Judge who simply exercised
acknowledged discretion. denying tAe motion because
OF some peculiar facts or absence Of fact which might
exist or not IN another acton Of the
L Il the language OF Judge who thinks that he IS
strained Dy law from granting the relief asked.
Tie General Term J Jaises being equally divided, the
order of lirmance purely formal, and their opn
lions must laid of the The fact that judge
Reynolds thought that bill Of particulars should be
denied discretionary grounds wholly iInmaterial
Judge McCue thought otherwise AID the divided
Court had 10 power to alter tho decision Of Judge
Nelson ei,her IL form, power. or ia motive The de-
csion Jy very terms Of the order at General Term
stands "iu all respects a.lrmed." Tle order below is
Therefore made upon matter OF practice, not involv
a. discTeuou aud IL effects Of the most sub
staual ri.uts" which be Involved in any question
OF practice. II IA, therefore, renewable here.
POWER OF THE COURT TO ORDER BILL OF PAR
TICULARs.
At common law the Court has power to order bill OF
particulars any action from the generality OF
the proceedings the parties could not otherwise come
prepared for trial This power is independent OF
ute, and the counsel here cited the opinion OF Chief
Justice Slaw ia q leading case on the subject,
who said that the Court lad power in any
and every action whether civil or criminal, to
require particulars OF the claim or defense to
De furnished; anl that wherever justice could
not be done trial without the Information to be OBJ
tanned by Of a speculation or bill OF particulars
the had power to direct such Information 10 be
reasonably furnished, aud to require the proof, upon
the trial to be confined the particulars specified
And in that bill Of particulars was required upon
an indictment for hDel-(COmmOu wealth aSt. Smelling
Is Pickering, 32l. The rule Of common law was thaI
particulars might he obtained IN any where, from
the generality Of the plcadIngs, the parties could Lot
otherwise come prepared for tie ulaL
Tie code Of procedure rather euarges than decreases
The power to order "a bill OF particulars, it providing
that the Court may in all order bill OF partcu
lars to be by either party this language not
relating merely to items OF account, but having been
Inserted by amendment in 1851 for the very
purpose Of enabling particulars TO be obtained
In actions where there account. and removing
any doubt that might have existed as 10 the con-
tauance Of the prctios OF ordering bills Of
particulars. The practice prevailing before the
Cote respecting bills u particulars is therefore
entirely applicable to proceedings under the
Code This is titled by recent decision OF this Court
in divorce SUIT holding that powers the Courts
were not restricted by the Code except by express
language.
CASES IN WHICH BILLS OF PARTICULARS HAVE BEEN
ORDERED.
Some general and language in recent treatises
Oh practice tone of which quoted by the Jndga In
his opinion al Special Term), may seem to throw doubt
uDop the proprety Of motion for bill Of particulars
Oh an acton upon Tort But this IL error arising
partly from nadeQuacy Of research upon the part OF
the authors aud partly from Misrepresentation OF
what they have said. 1t never safe TO
adopt any such general language as an absolute
guide It is always necessary TO TO the foun-
OF law and 10 examine the cases n the reports IN
order to had what was actually decided, aud AVOID
being msed by mere hasty expressions or opinion.
Upon such examination u WIZ be 1Olu1 that OIIs Oh
particulars have been repeatedly ordered IN actions
of T. IT. mature consideration by the Court and
derive our practice this subject. but also in the
courts of this aud other States. Reserying for the
prrSThS & ng viii 5e fonnd tHat bills of particulars
have Reen red civil action for libel, IN crln
Ior sander Of title, in writ OF DOVER in an action
eiccnenT action Of troyer, to give particulars OF
Tie articles in question, III an action or respass
on land 10 GescriOe the locus quo, and
In action TOR escape; aud here .ns
OIL TO say that II 1t possible that the Cour had not
power would not exercise the power 70 order bill
in 1lapfl
lars could ordered in criminal proceedings, but to
noped tSat particulars were ordered in a prosecution
tor emO zzement as IN the cases OF Rex ag Hodgson
500 So on an Indictment for nuisance, particulars
we're ordered OF the separate acts Of nuisance which the
furwood e Ad and Esi5 and that OF Regina agt. Flower
g Jurst, $751; Also on an Indictment Tor belng com
seller OF liquor, particulars were ordered Oh the
names OF persOus 10 whom liquor was SOLD: ana Oh
an Indictment for being a common barratOr,
where the gst OF the ohense is not IN single
act, but course OF conduct defendant Is entitled 70
ern Dsiric is the uniform practice TO order bills OF
particulars prosecutions for turning out barrels of
Although there Is direct precedent reported IN this
State OF order for bill Of particulars IN action for
IN England and in other States OF this Union where the
common law PREVAILS and there are pla4 S IN
law, here elsewhere TO give the defendants IN
actions benefit Of precision and particularly IN
the charges brought against them.
Tus Is preeminently ease In which the defendants
entitled TO particulars Of the charges TO be brought
him. In actions for divorce. which are OF very
nature aad Tor reasons which apply ruy 10 TINS
case. the courts uolformy require particular and
specidc statement OF the wrongful acts intended to
be proved. without some such precaation the
defendant may easily De surprised at the trial by
witnesses or even by witnesses laboring under
mistaken impresson charging him with being present
would unprotected save By his own unsupported de
NAL Every Judge well knows that In actions OF this
kind the danger Of trumpedup testimony 10 Immense
There precedeuts 0f false and manufae
tured testimony this class ef acfous which are re-
ported In the books; but what are these TO
the vast number which 60 unreportedf There
u absolutely no class OF cases Ia which the DAD
peured testimony Of witnesses pretending 70