The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-06-25
NEW YORK HERALD FRIDAY JUNE 25 ls76-rRPLE SHEET.

But In cases where the practice OF acting in the
double capaclty u counsel ana witness on tne
an exception 10 the rule mas been recog-
MED ,azed. haa such an execution arisen IN Ia
took place between himself and others
In an Interview ut Mr.. Moulton's house. having
been received III evidence that fact mas well have
imposed upon MIN the duty OF becoming witness.
II tnat VAS MS view and was the opinion OF his
associates, to whom he deferred, you Will not
readily perceive any substantial ground Of crltl-
clsm.
me other suggestion as TO his not being at lib
erty 10 act as counsel Tor the defendant, assumes
that he mad been IA professional relations TO the
plautlf or IN Their confidential intercourse had
learned MS secrets or obtained information which
gave an advantage 10 the party aiterward repre-
No RELATION OF ATTORNEY AND CLIENT
NO sucn relation existed; Mr. Tracy had not
been the attorney or counsel or ADVISER or this
Al tae interview at Mr. Moulton's mousse the
paper. dated January /. 1871, was shown 10 and
examined by Mr.. Tracy. After that Mr.. luton
asked MIR. Tracy whether ii diniculty should arse
between him and Mr.. Beechcr be would act for
Mr. Tilton then made expanations Did he COM
municate 10 Mr.. Tracy ana the other persons
that would enable him TO serve Mr. Beecner better
than ne could otherwise have done
In testfying to conversations with the oelenu-
known, Mr. Moulton stated 10 Mr.. Beecher that
| he had told Mr.. Tracy ''the truth or the matter
TOLD him the fact OF the case II was" 'Tneo-
dore Tltou had denounced me for so dong, anu
had sad to me that had no business 10 reveal
the guilt or Elizabeth TO Mr.. Tracy without his
consent.n
You will therefore observe that before the
promise made by Mr.. Tracy he had become pos
sessed OF the case, and tnat Mr.. Ilton censured
Mr.. Moulton Tor making the communication.
i What confidential communication could Mr. Til
ton have MADE beyond the information which Mr.
Moulton had already glvens You may also
slder. now that the whole before you,
| whether any lact or secret that Mr.. Tlon would
have withheld was transferred over as a benefit
to Mr.. Beecner.
Moreover, at that interview as Mr., Tracy under
stood the conversation, Mr.. Iilton's com liant
/ become
lect OF Allegation, that Is, the improper advances.
have only 10 add that my own view OF the pro-
prlety OF the course pursued by Mr.. Tracy agrees
with that OF his associate counsel IN the cause.
tnlnK, with them tnat there has been no violation
| or duty on his part, personal or professional
TIE QUESTION or DAMAGES.
Ihe third branch or tue general division OF evil
denee relates to damages
call your attention TO it simply that you may
be advised OF the evidence peculiar 10 that SUD-
| ject.
me glst OF the action being the loss or the So
ciety comfort and as. stance OF his wife, evidence
as to their condition, o. love and harmony, or the
l contrary, becomes material. The letters or the
wife, written be!ore the alleged offence, have been
read. / mention this that you may understand
why the yolumtnous correspondence between
could put in!svidence the letters OF the plaintiff as
he could any other declarations Of his touching
matter IN dispute But neither party could use
the letters OF the Vile. except a. 10 the damages
You perceive that the rule 10 founded In good
sense the action Is NOT to punish the DEFENDANT.
and worthy. be misled the home in comfort and
greater than under less favorable conditions
So TOO TO reduce the amount OF recovery,
unfaithiul to his marriage VOWS, the theory
being that a husband consortlng with lewd wom-
en- suffers from the invasion Of lis own house
hold less than he would have suffered II pure IN
4 TrLToN,s CHARACTER
But the impure association OF the plaintiff with
i other women is no defence 10 The action. Ii was
held, as early as 1901 by Lord Kenyon, that such
1 conduct went TO the husbands rignt OF action;
but, IN 1908 Lord Alvanley ruled otherwise, ana
i his view has since prevailed.
i n
ceve that we nave here q large amount or EVIL
dence, including the plaintrs alleged niscon-
1 question Of damages.
some other features OF the case remain TO be
'ExTREME IMPRoBABILITY."
i Upon principle and authority, and also with ref
erence TO our accepted rules oil social order the in
timacy ana intercourse which are allowed between
a married woman and her legal ADVISER, physician
considered proper or becoming between the wo-
man aud man holding no such special relation.
entitled to the benefit OF 1t. Lord Brougnam. In
considering . case where a clergyman was
on o wan G cassti applied Is pu tue
term extreme improoablhty." That learned
term thus used was extravagant. what can be
claimed is mere presumption OF innocence. In
many years spent IN religious teaching and intel
leclua service, the defendant comes into court
him, offers shield of protection. We are wont
to say that ali suitors are treaIed alike, and In
character man grown old in prayer and pious
service has prfrsd Jacie che benefit OF presump-
tion which the mere man or the world has not
Mr.. Beecher's advances OF money, winch,
T1lton and family, appear to have been mere acts
\ OF generosity. That money was not extorted by
\ rult OF improper articles. Although IL is OF no
special moment, think 1t proper to say tnat the
uncontradicted evidence shows that Mr.. TLton
old not know that no was thus benefited BY Mr..
-......... - -. -.
points OF slight Importance did not express
opinions 10 jurors upon controverted questions OF
fact. 1 regard the conspiracy ana attempts to
| blackmail suggested as OF tnat Character. Those
Gated on mere suspicion. We have before US
| evidence which could support such chargesi and
II we had, the defendants position would remain
the same; II Innocent 10 be SO declared inde-
pendently OF such articles.
Tne nearest approach 10 blaekmall would seem
10 have arisen between Mr.. Tliton and Mr. Bowen
II the former did threaten 10 publish a card lnJu-
rlou5 to the latter unless the money we're paid.
But we have no interest Ia that question. More
over, he did not publish tue card, nor was ne paid
until after due course OF Investigation. 1t seems
that the covenant OF Mr.. Bowen and Mr. l1ton
! In respect 70 compensation Tor service on the
on permnat,pp ~ me empovment before tie
/ ED OF the term, and that tue claims or disputes
should be determined by arbitration. la The no.
tees OF dismissal put la evidence Mr.. Bowen
proposed that mode of adjustment. he had legal
rient % stand on tnat. he ala 50, and the ar
| bitrators, men Of cnaraGter ana integrity, und
that $1,000 was due, anH tnat was PAID. No spe-
I clzl purpose could nave led such men TO tnat de-
I termination n the money had not, In their Judg.
| menr, been actually due.
THE INVESTIGATING COMMITTEE
IL seems proper 70 reier to two subjects Of con-
siderable Importance, which, 70 some extent, have
been brought into the case. Tue one, tue proceed
| iDgs and report OF the investigating Committee
appointed by Mr. Beecher, after tue Defendants
/ letter 20 DR.. Bacon mad been published. That WAS
a matter when concerned Plymouth church and
the detenoant as lts pastor. TIE report OF the
committee, after such investigation they thought
! proper, IN iavor OF the defendant. have
simply 10 REMIND you that that determination
| should not have any weight or influence with you
here.
THE COSGREGATIoNAL COUNCIL.
The other subject ID the advisory convention
I held at the instance OF two or our principal
churches. The question presented here had no
/ relation 10 the subject there involved. The West
I charges. when are In evidence before you, not
having been prosecuted by the Plymouth church,
ana Mr.. miton's name having been dropped