New-York tribune., 1874-11-20

compiished this without seduction ms psu, nSsnts
printed points, An examination of the order 10 snow
cause dsposes of the first objection tne D the wife
only those made by the deponent himself oo los. q,
On, ficn cotort society, and assistance Of the
wife are elements OF damage, it Is true out tne
right 10 o. ,Ss it and the plaintiff to prove the
sct no;withstandng he may have lost her aztec
&c. he WSi' rTe ra N him S Tef but n this action
falling 10 prove that the defendant deDaucneu TUE
s Wife hs ioos nSs as stated IN the fourteenth
point referred to, that the deendant was ente9 10
have the bill OF particulars applied Tor no wonlu 90
equally entitled 10 the items OF proof proposed 10
be introduced in the trial. touching the ire
onept visits his presents and the various arts by which
the defendant the affections of the plaintiffs wife
,he sinss QUESTION presented on this appeal viz Has
this Court after issue joined In an action OF GRIM
ron TO order hill OF particulars OF the divers otner
DAYS and times after the particular day named In
the complaint, when the criminal conversation Us
acts Which % Il Is caimed the defendant confessed
no objection raised to the power ot ths Court az ddr n
Is sought 70 be sustained on the grounds:
First That section l5S OF the Code when proviues
G orep epS Of the ccur the items Of an
in pleading, or bill of particulars OF the claim OF
snch as that which forms tie subject Of acOn and
Second That the defendants application should have
t,ons of pleading are indefinite and uncertain that
the precise nature Of the charge OF defense Is not ap
parent Court require the pleading TO be MADE
definite and certain by amendments and that having
omitted TO make the application before answering the
cent and has waived the right to require any amehd
npderstand the doiendauts application to have been
denied by his Honor the Chief Judge not because there
OF power to grant the same well for other grounds
stated" In the opinion OF the Court The main consd
Grafton suggested by the learned Chief Judge for reus
ing tho application seems based upon the assumption
that question could be raised In relation 10 tDe
pied 10 have the complaint made definite and GER
tain and that TO compel the plaintiff to give the parc
al in
evidence upon which the plaintiff relies TO establish his
With great respect we think this position
The complaint as pleading is good and follows 10 tne
tainty IN the nature Of the charge; it is distinctly al
legged that the defendant debauched the plalns wlie
day Of October 1863 thus bringing it within the statute
OF limitations Except for this purpose the allegation
adultery Therefore on or about the date particularly
alleged. would establish The right OF the plaintiff to
That fact established, the plaintiff mas per
OF acton and the other matter alleged IN the
complaint as TO the loss OF wlfes aecons society anu
question OF damages. The defendant could not obtain
he Information he ASKS 5 under S5,rsa TINS vbeS Se
is called to meet Is not apparent in the com.
@ pieadine more definite and certain Il matters not
whether the defendant did did not deoauch the plain
tis wife al divers other days ana times between the
10th day October 1863 and the OF the commence
lnent OF the action II guilty on the one day alleged he
entitled 10 recover damages. Even III the plaintiff
should fail 10 establish the commission of an act OF
siiil de1uite and distinct against INN, and II the
plaintiff establish the commission OF single act OF
1863 and the OF this action his cause OF
is thus fully established; The Cour, therefore,
can give him relief under Section 100 because the
nature Of the charge against him Is apparent on the
face Of the complaint, and the time tM immaterial. M
trial. not follow that because the plaintiff is COM
neIed 10 designate with some reasonable particularity
those other days aud times, that lie is necessarily
obliged d close the evidence by which his cause or
Sciion is TO be sustained and thus expose his prepara
fion nd
sumo Of these other days and hours is the day
3 aa q to 81 the BY wca he
can forsee any way the proof by which the palntln
ON the trial proposes to establish the defendants guilt
The plaintiff has undoubtedly the proof within his
reach by which he hopes 10 establish the fsci; but the
OF the witnesses who saw the guilty act commit
ted cIrcumstautia evidence by which the plain
M MsSs 81 ssSS ES gFSG& nov % SscioseS SaeSaVeh How S
be SAID that TO give this date either absolutely, or
any opportunity to tamper with or elOgn an unwilling
witness. or enable him TO manufacture testimony to
t and not disclosed under the order applied for and
against which it TO me impossible that he should
be able to manufacture any available testimony.
Ihave dwelt thus at length upon tins branch OF the
rest mainly upon the points that the defendant had
full and ample remedy under Section l60 which he has
voluntarily abandoned and that the application OF the
defendant called for the disclosure Of the evidence upon
which the palnilh relies TO estaohsn his claims Tor
damages. DO not with the learned Chief Judge
that the question is not Of much moment to the defend
ant as the information 10 which he could have been
entitled, 0hat is under Section l60 may yet bo OBJ
Iained 10y examining the plaintiff before the trial. Un
noubtedly tho piaInuH might De examined before
irai but il is dcult imagine any liue of examina
iion which wOOd De permissible which would give tie
defendant Information as TO the days and times on
which II Is proposed to prove any guIy acts DetWeen
the defendant and the plaintiffs WIFE Ii we assume for
Exn nnoet Of SS any eoson With the alleged guilty par
ties that the defendant wrODguy ana wickedly' and
without his priority consent, committed this great
wrong against him, and that TO make out the case he
relies upon statements made to him by parties who
themselves have witnessed the guilty acts upon cir
obeP 1r iner aiemeDs or their
,tr.
incompetent as evidence. We submit therefore. that
The examination OF the plantn before trlal docs not
give him the particulars he desires.
Itis however OF vital importance to the defendant
able paricularty when ii is claimed that he nas com
mitted any wrong against the palntD non coatSta put
might be able to establish that he was absent
from city when 1t is alleged the adultery was com
,ptted tat because OF some other acts or cIcun-
Stances the charge Is equally untrue. The plaintiff un-
doubtedly prepared, at the me MS action was COM
coWnSaint Is sworn TO- and we must assume, for the
present purpose that the plaintiff believes the matters
alleged by hm TO DC true. and that this belief based
npon facts and circumstances and information In ms
possession and they ought to be very fu ana clear 10
Warrant the grave charges therein made. , -
Tue answer is verified and as before observed. con,
tains fu and uneqnvoeal denial OF the charges MADE
defendant guilty The burden of proof rests upon the
plaintiff The defendant may not be put upon ms
p1na fdce against him, ana II Is thereIoIe peg
pg the whole question to say that tae deIeIdsa
be introduced against him. We nave no rlgnt 10 pre-
that eS Ry vail aep Se pns to
Is as the plaintiff TO the deicndant 1t Is no
Injustice therefore, to ask the plaintiff TO designate the
times when the acts OF which he complains were |
committed 1t cannot N any way disclose his line OF
attack Ii is iar the defendant that he should be
pointed with degree Of certainty TO the times and
occasions enable him to meet the charges fairly
n satisfied this and this course alone Will
aid the cause justice and lead 10 the ascertanment Of
the truth. -. 4. -. A.,
order Tue authorities cited by the learned counsel for
the defendant have, think, no room 10 doubt that IN
England nd n some OF sister states the practice Is
well established TO the full extent claimed IL Is in
sisted that this practice has never 10
ths and tlat the only power possessed by our