The New York herald., 1874-12-08
THE COURT OF APPEALS DECISION

Judge RapaIlo yesterday delivered the opinion
Of the Court OF Appeals, sitting In Albany, on
motion made before IL that the order of the
General Term and the Special Term Of the City
Court OF Brooklyn, delivered by Judge Nelson.
denying the application or Mr.. Beecher's counsel
tnat tue decision the OF Theodore Tilton VS..
Henry Ward Beecher be reversed and that bill
OF particulars be furnished defendants counsel
The opinion takes the ground that the courts
below had right TO order a bill OF particulars.
The Appellate Court orders the TO be remtted
to the Court below, that its discretion upon the
merits may be expressed. without costs to either
party as against the other. The opinion delivered
by Judge Rapallo is concurred in by Chief Justice
Church and Judges Foger and Andrews. Judge
Allen gives a dlssentient opinion, which ls also
given below. Judge Grover or1eny expresses
doubt as TO the existence OF the power to dismiss
the appeal as claimed by Judge Allen, out new er-
sheless concurs in the dissentient opinion.
Theodore Tilton, respondent vs. Henry Ward Beecher
appellant William NJ Eyarts for apPsaat Roger A
arising The present appeal which visvaDis IL
s car wsssT I S no, u ae nc c0u Or
possessed that power and, under the MISTAKEN I'M
eanon mat ground we hs e Jurisdiction, ana
heard at Special Term: on the merits people
New YORK S Ss; sTewn '. Brown. c%ss.i cSaIs y As:
% s ..sns 70 which we o' nees with 'n osde
made upon applications which DO rest upon strict
court. below i not sonsaasd Sn he
eo a % was To
legal right that it did the discretion
xsi s
wSom he was az
special Term decided that he had no power
such relief could have applied or under section ls0
other proceeding defendant is entitled to
have this Of law corrected and his duly
c1es supposed to stand the way The nrst point for
posed OF in the Court below on the question Of power
was we are then called upon to decide whether
defendant entitled 70 the unembarrassed exercise Of
Ing upon the question whether or not JUS.
s ,,cs de demands that his application be granted ed
Court DENYING the DEFENDANTS motion THIS order
granted fesuIrng the plaInti 10 show cause why he
should not deliver tP ne deiendants attorney state
hs he ea9es p intends q & ha Of
motion the ground mat ,he Court mad power 70
words and on the other m stated bad been omit
establish that the motion was, denied solely on the
ErounS Of = Supposed want M OF power % grant
the Insertion Of these wordsf We must, sup
nas staten b h@s in hs ahdss gpn6e WHICH s 70
S &C. n wh e order and IN
suppositon would be unreasonable This opinion pre-
had power grant the notion But in part Of It
he a that ne has his as 70 the
he denied upon the merits The learned Julge after
ssons q Tort ana showing that tor ordinariy hey viii II
mo, be granted @ IN that class q e ACTIONS @ as
AND he proceeds 70 sustain his position that the Court
edy Ss
definite and certain sed Y mai nat 1ss e aspoprs
= anu so,e M 1enedy me Adter careful examnanon q the
tia respect qualify The statement IN the order that he
sa% the 2 want ha q
nna y tss o e Sod ana n the party
which the case comesbe before think presents
not s souy sea &c e a s
lion whether the particulars sought could have been OBJ
complaint more definite and certain II the power 70
section i i not thereby abroeated The most that could
be said upon the subject y that section i6o
require the party 70 resort 70 that remedy.
but as maca stress has been laid On The sser that
remedy could have been obtained ander SECTION 100 70
sound The iaassage Of the section is when tie ale.
he
rent the Court nay rnquTs - me pleading % be made
where the precise nature Of The charge s not spparel.
party % 'o oo. IN Senise in he
pleading Of ne nature the charge INTENDED be made
q tme q Place For this purpose dnere9. proceed
i which Provides among o,ae1 Sins that %us The ooars
may ali cases order bill OF particulars OF the claims
of either party be furnished" II evident tnat In the
present there occasion for application
under section 100 70 make the plaint defn
and certain. There Ia uncertainty indcfnften mss
in regard the Of the charge made against
defendant The difficulty under which he claims be
la aboring Is III the complaint does point the
times occasions when the alleged ofences claimed
20 have been committed, but simply that they
were committed the i0n OF october, 1864 and divers
other days and times after that day and before the
commencement Of this action. thus Covering q
period Of nearly six years ,s1 the ,action having
the acts charged committed but claims
at for purpose OF preparing his defence neces
tnat ne shoud furnished with the particulars Of
Ihe time and place In order that he may summon Wit.
rebut such evidence be brought against
rim or explan the crc nmstsnces which may proved
md upon which the plaintiff may rely 70 establish the
charger In actions upon money denandA con-
listing OF various items, bill OF particulars Of the
ses description OF tho transactions out OF which the
~ 10 claimed TO have arisen granted almost
s m ater OF course and this proce cdnR 50 common
nd familiar that when o Of ar Spoken of