New-York tribune., 1874-12-02
tlou of Jurisdiction wa. raised or considered in this


power to order bill of particulars. IL untenaole' Er
to be available appeal must appear on tue TACO Oh
the record under eyiew. ,, ,oo
In the OF Tracy agt Altmeyer, is n T.; ~ sgs,
the appeal was from order of the General lSrn
affirming order denying motion for ne @ ti,al o
From the opinion of the Judge at Special Term IL sp &
peared that the motion had been denied solely on .ue
ground could not be- made after entry OF
Tns Court Of Appet held 10 be error; bnt pro
ceeded To say, the Geh, ra Term hsd lne p1~ei o ~
the order the merits aud upon any anu esJ
ground connected tberewIh. Ine otue.
OF The General Term Is simply an ennsIsteHt
with the idea that the General Term consiiered tne
OF armauce thereon. Il was Is duty 10 90 SO, aai
the presumption Is that this duty was perIorieu, %
until the contrary appears It Is iDcum'ens "
party seeking reversal Of judgment or order 10 10
show afirmatvey that an error was cohni,r A. ~ ay %
prejudice. not sufficient to show cause toaI II I'm may
does not appear lbnt that the General Ierm reviewed
the order and passed upon the merits the orner ~
pealed from must 1e affirmed" T1e ease oi Lii.s
import. The appeal was from an order of the
General Term denying new trial A. appeafSu 'uSer
Of was grounded on an erroneous impression
of power. But tins Court ruled ia the lo',o"
ing language: I'VE ere not anthorz.d TO teSe% b So
Judgment and 1t for alleged error wnch uoes
appear upon the record aud s uot shown or ayga %
Court" Accordingly ihe order was ainrhed'
TIE SENSE OF JUDGE NELSON'S ORDER.
In fact, neither the the opinion at spee@i
Term shows that appellants application was denied ior
lack Of power IN the Court TO grant 1t. Judge Nelson
specify and places of appellants confession OF
the adultery right renouuced by the appellant him
self General Term. Tae Judge did exercise h.s dls
erection upon the whele matter. although, az 10 one
brAnch Of The application, he Iepudated the power as
speculative proposition te order at General ieTm T ~
simple all nance of tie orGer at SPesia dr tetn
| and in itself imputes no want Oi p""es po"s
to the Court MILE me- s 70 sserts T the power
Judge Reynolds waving the question OF poMel' M
ns eo U nnn 70 The discretion OF Ine
Court aud 1t not appearing that ITS DENIAL or ths
ance vi the denial proceeded from the sIppoSi.ioT o.
dctou TO review tho order and the appeal shouId oe
Snonld the Court entertain the appeal, the order
should he affirmed TIE application was nol or @ u,.'
fines and places OF the acts aouItey imputed TO ap
pellant. Il toe complaint was defective Ia tne -,
more dehulte and certain dsualt 10 --ron oV "a M 10
Code Inc term 't.Ict,.S o. 'io e]o'.. ] cSNobIe OF
being resolved nto patts fractions p'F'cuaIsa..u NJ. ~
Is these paris OF whOe these fractions Oh uul, S
p.. cUars OF q general. tAdt The party may b r'qliei
| 10 tUrnish his adver-piy But cause OF aeuoI IV'
cIn con- - one, entire ana indyisDie anu 10 Aos S
cepule OF or separation into parts OF ptlc
u4Is Tire Ime and place VI the wrong are mere a.ci-
! tify the clam; aud IL. By OF their omis-
| sion, the claim be indefinite aud uncertain, tue
remedy is by application OF Section 1C0 Hence the
present l. within tue intent or operation Oh
section 15s. And. tor another reason namely La I
neither Ia ITo ssonaI nor IN popIIaf auE - -,
word claim apPFoprate to the iaea ci1ao OF gTnt a
of redress @ for iO' tho pTr'Gi. aeaon tO' Of b. WIFE is
legal as well as ph.olSs!c"i soec'ln. Jldge Epa pa 10 10
90 the cLce Of bli or pdttcuil4e l5 ~
apprse the defendant OF ih9 cns "Ai.l lne pla.nul
intends to prove upon ne lia and to resr1t - proc
to the matters specified" Oldtthews agt Hubbard. Al
novelty IN jurisprudence and an atfront 10 common
'The use OF a bill of particulars Is TO apprise party
ci the specific nlaL.s oi ais dCTeIs > WAri TIE
/ plr,ieularly demanded aul hl- Application whar-
ever chat demand Is specifically SCI iOrt4 IN the
/ Wend., 20j) Here our demand Is srrsihcalR
stated IN the compliant. namely Oh Oh, rgareSS H iPr
lcatIOn OF the complaint "ouid make the demand
ce , oT Tirnai ver-rlon mi ellt pr0baly apprise
appellant OF tie direction Of our evidence. put would
not maze the claim or demand more clear II party
be IN possession OF facts or documents material 70
/ his advcrsary's case, that adversary may compel
/ their disclosure inspection by virtu3 OF Sc
nns 3ol ana 3,s OF the CUue. Did appellant desire 70
evidence for his defense from respondent lie
cited from foreign books ny aPpoants counsel Illus
trae earaing and rese-sc' Ggt 11 re a9ss,lei IN
OF New-York determiued aud l'guiaed by POSITIVE
minstratlon OF justice which Is not supplied
by the provisions q our own system. II tae
Code be silent point OF procedure, the an'e-
cedent practice is app caIe bat neither tue Code nor
tie former pracuce TJr any prlLcip.e OF prc'teat
sopa tort Tie provisions II our law are abundant aud
e,ctual 10 psh every cnl contemplated by tue
C. a. 4 a complaint in divorce for adultery fail 10 city
times places persons, tue defect h reincdnole other
wise Lian Oy DIu pIIt4cui4rs. (hOod agL nOJl
Paige, 1851
ABsUEDTTY or SR BErcHER's POSITION.
Eveu assuniug that oI 1876 ofthe Code applies to
the present case the bill of PARTICULARS properly
fused. First When the defendant himself knows as well
as or better than plaintiff very details which he
seeks tie uotIon will be denied. Here, Of all persons
save one and that not the respondent the appellant
best knows the times when and The places whore he
committed the acts Of adultery. The appellants de-
| mand simply absurd. second, II IL De answered
that have asccrtained tunes and places
from appellants confession the argument & ad;
SO is in no need of spec heAtion. Third, apparent
The papers that respondents PROOF consists chIeny OF
appelants admissions Of the adultery The j.
ceivable that plaintiff proof might consist exclusively
Of the adulerers confession Then, except the defend
to give time and place. he would escape chis
sement, though with an ayowal OF guilt 10 his mouth
Now In erin. cOn Ut - not necessary TO prove the
fact 10 committed At particular certain
time place General cohabitatlon excludes the neces-
city of proof Of particular acts"
Thus il bill OF particulars be required OF Mr. Til'On
and his only evidence consist OF Mr. echer general
copfes ions (which law adjudges penIry prUO he
cannot course furnish the particulars. and his
plant wOuli be dismissed. e Wait, Practice 35J Or.
snouId Mr. TntOn give particulars Of time and place IN
respect Of which he mad been mismfOrmed by Mr.
Beecher otherwise. then no matter how clear and
specific and conclusive the proof OF adultery II would he
nnavailing and would f. his action 47 n. Y,
Bowman aGt e irle, Duer., GoiJ
Mr.. TtOn means To fabricdte aud support IL by
false testimony, aud demands the particulars of this
fictitious claim We suppose this 10 be the first instance
OF demand OF the times and places OF the occurrence
OF an ina gDary and on.eXisent fact. III the thing
took place, then from the nature OF the case, Mr..
than Mr.. Tilton II the thing never was
| then 1t Is impossible 10 predicate OF It either
design repeIed and re orted by ThtOn; but. In
would court IN advance Ot the trial, and the
wanton and unsupported assertion OF his adversary.
load suitor with the miany Of meditated fraud and
PERJURY.
Al conclusion of the argument the Court the
PAPERS reserying Us decision which WILL, however, be
announced before Tuesday :@Et
MISS PROCTOR'S LIBEL SUIT.