New-York tribune., 1874-12-29


ton. at am innocent not innocent as to the time and
place; but am innocent M TO the fact, and l
was the position that this defendant then took but
whet II be that his confidence is IN the inverse ratio
whereas at the co,nmencemont Of this fignt will
ing to have the battle waged-they come by this 6 OF
great question, shall be eliminated rum the trial. and
tnat the shall hang suspended upon an accidental
sire to have the issue changed from the substance OF the
Moners please, the kind and the qnantum of evidence
by which the plaintiff Is TO support his aiegations ahu
by OF evidence, those rules which uuin
peachable and tmmudble as any precept OF your posi-
safeguard OF the rightr and the liberties and the prop
ery OF Citizens those rules OF evidence propounded py
elementary text writer's ard illustrated ana en-,
forced by all tribunals, ami rreGminenty by Lord
sowel' the great master Of ecelesasca Law;
cOhaOitatlon excludes the necessity VI proving
particular facts that is not TO prove in
order 10 maintain this action that the adultery was
committed at any particular or certain time or NJ any
particular or certain place Further these writers ana
catve ts face OF any particular time or place. Is IN
admissible Although this general evidence nee does @ NOT
point to any particular time or place tne Jury may u
a verdict for the plaintiff and may fnd the fact upon
places to which the evidence may De appncaoie, NV,
SIR this order provides and the gentlemen on the other
strict the introduction OF proof" Nay, more they
further, and say, I'VE wiling to give your gen
your Honors, they contend, "Athoneh your general
evidence be admissible, aud although We concede
nevertheless since you have got 20 prove the
aci committed at some particular time aud place,
then this evidence. although 1t Is PROOF OF
the act, tails short Of does not reach TO demonstration
of The tie and place. therefore the defendant muSt
please H0nors where upon this CONSTRUCTION ana
impuus this operation 10 tGe Wrier under ap2ea. c
he stdnds. IN the view Of tue general laws OF
evidencei You have seen what are the. the ris-ts -ts
guarantee to him. And what Is the remedy What arc
the rights which he updcr this BAL or particulars
H., olSfp pruV M
he must Prove 10y competent aud sucent evluehet
that the fact that adultery was committed at some par
tIcuiar time particular place; otherwise tue
defendant must have u verdict Wei, now, now eau
rms naIntlff prove the details of the adultery Adul
terry is not thing perpet iii the pubic eye WAtn
mon the W, rid to Wuess his exploit least all
ne invite the injured husband 10 be spectator OF his
dlsgrace anu uialy. Bat instead he rturcs INTO
corner and dra wing around him the OF dark
ness and concealment, he cOnsummates HIS iniqulty
Such Is common sense, such ~ human experience Bu
further tna gentlemen know, ana tn" word
knows that this plaintiff does in UOnt ~ fact pre-
tend 10 have any personal knowledge as to the times
and places at which the acts or adultery were commit,
ted contrary, having avowcd aHd disclosed ali
his mOny, these gentencn See ana tle ullc sees,
that is impossible tor MIN by legal evidence 20 prove
Tue time and place wherefore, wncn these gentlemen,
by bill OF PARTICULARS eXat as cOniltoh OF yer
ct for the plaintiff that must show the time and the
circumstance, thcy impose an Impossible condlon tny
decree his defeat and would he more manly
az once 70 usmssnls complaint. II your HUn0rs please,
this ia no trivial THIS defendan is o OruIdry
parsonage This controversy involves issues oi moment
Gus tIde, and II is no rhetorical eX&Egerdton 70
say that the eyes Of ChrtcndOn are directed III hnN-
inns
tsnly this issue Is irauSh Win eVerl!stnE anu mn
feraHle ruin 10 one the other OF these parties
Wherefore, them since such grave interests are lhp
be determined upon the great fact III issue
anu hUa gem The rea f"t in sne H. did this ccI-
brated persOuage the defendant commit the act OF adu
terry aud where did he commit IT, or when diu ne
commit H. II your HOuOrs Please, the eclipse oil an IS'
triOus uame the degradation OF an exalted character
not O CATASTROPHE which any wciOrucrG mlhd can cO-
template with compacency, 1ecause 1t impeaces our
common humanity, 1t SHAKES aho uusettieS our la'n III
the integrity OF human virtue.
A DISTINCT SETTLEMENT OF TIE CASE WANTED
Therefore this defendant innocent, ia entitled
to yirdcaton; he is entitled to absolute and
complete vindicatlOD-not vlndcatlOn winch nnds
that he did commit the act OF adultery IN LIVING
ston- that he did not commit the act OF adultery on
the 10th OF August 1868. bu, vindcatlon WhIcl ascer
tans and proclms tlat he never committed this dct
I'm his languaGe) at any tlme at any pace.
petty t9ae5 he BE- et U co y aW IN he nd
meut OF IN the prohf but TINS Defendant can
be content the world will BE- content with no sucn
ac0uittal What he wants and what the world demands
10 settlement of the Issue raised Dy inc plcadntb
decision, determination or the TACT alleged ny he
plaintf and denied by defendant namely, that he
committed the of adultery When he gets mat VIM
and nopnariTv winch he so long occupied and cfacei
but uu ne gets that vindcatioD, Dc escape from the
faugs Of Justice by variance IN the proof or nav II
the lndict nent he will 60 fugitive vita the lndelibc
mark Of Cain branded upon his brow So tnen II s due
defendant is guilty, las Sustained the most enormous
wrong which one man can lntct upon aDother-lt
ia due to the plaintiff tnat IL sha Lc !nyeS Gatcd o. an
impartial tribunal and determined DY thc country not
whether the wrong was perpe rIel upon hln on one ay
or another at place or anOtner nut EiEc cd ana
decided great whether he las -ustdIcu WFrH5
at all The gentlcmen on the other SIDE cannot com,
main of surprise. TICy might complain of surprise Il
I LIS D.'' aa ~ Pc nernt,n us 70 give proof o, anntrr
time and place. they might complain OF surprise,
CuI 0e 10 order, II there be 10 6 0i pafueu-
lars they com plain Oi surIsc Way, wiIt are
ihe facts il your Honurs please with cdDdJr un-
parallel the history Of hC atom this pl!nth hds de-
ployed and developed cisses AMI ca;egorls cvury
flttla of eyldGUce Ivy when he prop Seb 10
suDstantiate his case; and not Uuly tAil, Dnt
witness whom he proposes 10 produce u2OI tue
trial. How, then. these "1aIlenta be SURPRISED
The considerations that suggested TO your Houors
are pertiuent 10 the exercise Of y0ur discretion
affirming reversing this order; ana that you may ex-
ercse your dscretOn that you aT reve" lhe exercise
OF the discretion the Judge below III granting the
order Is specifically not de ernined out assumed Il"
pOstuate III tue CASE OF Tracy aGt A!tMryer rpr'od
46 New-YOrk. These arg linens, tuen' thdt nave
briefly and hurr:cIly submitted 10 your Aohors x" 10
show that the granting oi the ORDER ln tS ci"e-Com
cedDg TO tne Court the power 10 OfdtT D OF pdrcu-
lars species OF action-yet these considerations
90 10 show tnat allowing the order IN this case Will he
practical denial OF justice TO the planl Us Wen as 10
the defendant. for that natter that 1t VIII excudi an
considerations OF the rea lestlon III for
that ask Your Houors not 10 m0dy the Order
not 70 to aiate ITS ierocty not to restrict It's
Operation but your Honors for an order OF re-
yersal, pure and smpe. .
please your HUnOrs that II is rather DANGEROUS 10 change
front presence OF the euemy Etner the learned
tner case or they have great confidence IN our naDIy
to meet II, they are preparing TO run away Iaey
presence of the which have ever known IN
al INV exper,ence Ouly few days ago. and though
YOUR Honors were not holding General Term you heard
the oucry of counsel with regard 10 tue Terms ol hs
order and the whole argument was directed 10 the
question OF the of the order Now, 1t Is acKn0w
edged with frankness that would nave Deen conenoa-
be IL IL had been at tho beginning tnat would nave
been comment II another line had not been taken
before the Court and before the public and tnat may
Derhaps, be even a little cOmpendable coming even
now and SO late, from q gentleman VINO. really De
heve always tries frank ana candid that Their o.
iecton s not any particular terms OF the order not
10 any supposed special defect when coud DC oOvaeu
in grsntIg an order for any bill OF particulars what
ver hut 10 any and TO for particulars IN this
'"'' SHARP PASSAGES BETWEEN COUNSEL.