The New York herald., 1874-12-30

be gwen he might be prepared TO prove that p
such times he was absent from the State such
not deserve much attention. The statements that
plaintf intends 10 introduce fabricated testimony
that denial. The case Is not in this respect pecu-
liar; the like suggestion, for aught that we
can see might be made IN hall the cases on
our calendar. have TOO much falth IN tte orceal
to which unknown witnesses NAV be subjected on
the trial TO accept such suggestion In lew cases
could a defendant be as ree rom chance Of
being taken by surprise. AS the case IS expected
10 last some weeks IN Its trial, there would be
ample time for the defendant 10 recover'lrom any
casual surprise and meet any unexpected testi-
mony. on The hearing OF the Special Term Judge
McCue granted the order from which this appeal Is
taken. After MS usual method he wrote an orln-
ion-an opinion entitled 70 great respect. On the
trial the order would be OF binding force and
the order precudes plaintiff from Offering any
evidence at the trial 10 prove any specllc act or
the particulars. We think TINS improper rot
only because proof otherwise admissible aud
somewhat circumstantial IN It's character would
oe excluded but because an order or non pros.
or Tor sucn preciuson should not be made until
after previous order to furnish the particulars
had been dlsobeyed. The deprivation should ol-
low some offence The residue OF the order pro-
vldes that the plaintiff shall not be prohibited
from introducing testimony, confessions, and so
forth, otner than as to specific acts Of adultery,
though no specific time be referred to. That relates
TO the mere introduction OF sucn proof, not 70 the
effect oil it when received. At the close OF the
argument thus morning | entertained the hope
that we could modify Lhe order ana IN sense
at1irm-it, but on further examination and renee
ton we md that, according to our convictions,
impt sSlble ana after mach elaboration are con-
strained 10 reverse the order.
The following Is the opinion OF Judge Reynolds:-
The Court OF Appeals has decided that this Court
has 'the power, ii 1t sees lit. to order particulars
to be furnished" ana has RENTED the case 10 this
Court 10 decide 'whether IN the exercise OF It's
discretion, 1t should grant or reruse the order ap-
Piled for.n Upon The former appeal | con-
sidered the question carefully and came to
the conclusion that this Is not proper case for
the exercise OF that power. With great respect
for the views OF my brother McCue, to the con-
trary Is,ill think nat the order ought not to be
made. and Tor reasons given III the opinion then
filed by me.
Alter ali the statements and afldavits that have
been made in this matter | think there is more
danger tnat an order so cxactlng as TO DC at all
efiectua would work hardship and Injustice to the
plainLifr than that the defendant without IL,
would suffer from surprise upon q trial which, as
the counsel on botn sides suppose, Is TO last FOR
weeks. The usual course OF procedure and the
rules OF evidence viii, think conserve the rights
OF both parties. am. therefore, in Iavor or nc.
GEORGE c. REYNOLDS, J. @. y.
THE TRIAL TO GO ON.
A reporter OF the HERALD had short interview
with General Tracy, at his house. last evening,
and was assured by rhe General that the trial
would. so lar as Mr.. Deecner's counsel Is con-
cerned, go on on Monday next. Though the re-
versal OF the order was a surprise TO them, ne
SAID, inaS,nuch as they nad expected only q modl-
ncaton OF 1t, and though its reversal would oblge
them TO go into court very heavily we Ented and
with cloud OF disabilities upon them, ne was still
confident that the result would be a victory for his
client. There was one great satisfaction about II,
he lemarked H. ief. the Titon side without the
shadow OF ali excuse Tor any iurther delay. Gen.
eTa Tracy said tnat he had not had an opportu-
nty since the decision OF seeing Mr.. EvartS. but
thut, so far as the tra! concerned, thls.would
make DO difference, inasmuch as IT Was luly de-
c.ded to 60 on on Monday.