New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1875-06-25

spirit of loyalty 70 the defendants repuauon anu !"
that of Mrs Ton and from an earnest wish TO divert
the minds of others from the subject I'm carrying out
policy Of suppression adopted, you are at liberty 70
make such allowance for that a. shall seem proper
Az TO Mr. Tilton you will consider whether his testf
mony the confession OF the DEFENDANTS quit can DO
reconcied with his previous declarations that ms wire
innocent The peculiar theory which ne mas explained
to you has been sufficiently illustrated by counsel, and
may be accepted far you think proper III his pur
pose was TO protect the Of his wife, and not TO nure
unduly or maicorsly anothcrif in the ftfui conflicts
and emotions which may have possessed him. you discover
q moral purpose o. contrasted with depraved spirit
you will give him the benefit Of that view.
The general rule persons who have wllfuly test
fed under oath, what is false, any material point
Is that their testimony dsereded You not bound
dsregardt ALL The witness 10 be entirely dscredited
have given the false testimony with reference TO
fact TO which he could not be presumed liable TO mis-
take and given 1t with knowledge that 1t false. You
are to apply the rule cautiously and discreetly Tho
MAXIM wfully false In thing, false in ALL is sound
subject caution stated and TO right TO decide
how much credit you will give the witness.
The testimony OF Emma Moulton is sought 10 be dis
credited quite different ground 1t is claimed that
there inherent mprobaby in the superstition that
lady OF her confessed refinement and decacy would
have conversed freely with the defendant Is TO his
adultery, undertaken advise him on that subject
It Is also said that the occasion when she claims TO
was not her You will consider and apply the
proof which stands in conflict and in corroboraton The
question gentlemen, rests with you Two other observa
tons may be proper. Had Mrs. Mouton got the impress
that the defendants guilt adultery and IN her
conversation regarded that the subject IN his mind as
1t her mind Do you believe that, whether mis-
taken or not she testified honestly Her the
stand and the opinion which the defendant himself had
her character and WORTH stated in his letters
commend her TO your respect.
had occasion to state in your hearing my view OF the
suggestion that this witness testified at the will or on the
instruction OF the husband. still hold to the opinion
then expressed. There Is no proof OF artfice, or
coercion undue influence. The fact however, remains
that husband deeply concerned In this controversy
and that her testimony without repeating with
his and that considered the question OF
bias In sustaining the plaintiffs she is sustaining
her husband az a witness.
As to another witness Benjamin F. Tracy two sugges
tons have been made the first, that having acted as
counsel for the defendant should not have been called
as witness for him in the the second that owing
to an arrangement with promise TO the plaintiff he
should not have acted such counsel II appears from
the testimony that before he accepted the relation OF
counsel for the defendant he consulted the other dstin
gulshed gentlemen, who had been retained and have
since acted him the cause 10 the proper course
to pursued by him. and that he has acted on their ad
1t also appears that when circumstances seemed
TO make his testimony necessary the trial, he sub
itted the question to his associate counsel and acted
on their advice in coming forward to testify. The
matter IN both aspects, is thus strongly contrasted
with those cases where professional men, acting
upon their notions enter into improper relations
The principle which restraints an attorney or counsel
from acting in litigation against one by whom he had
been consulted and from being witness for his client on
the trial OF salutary and should be respected
But in cases where the practice Of acting in the double
capacity OF counsel and witness the trial OF cause
has been most strongly reprObaed an exception to the
rule has often been recognized Had such exception
arisen this instances The conversation which took
place between himself and others in interview at Mr.
Mouons house. having been received in evidence that
fact may well have imposed upon him the duty OF
becoming witness. II that was his view, and was the
opinion Of his associates to whom he deferred you Will
not readily perceive any substantial ground OF criticism
The other suggestion his not being at liberty TO act
as for defendant that he had been in
professional relations to the plaintiff or In their conf
Dental had learned his secrets or obtained in
formation which gave advantage TO the party after
wards represented by him. No such relation existed
Mr. Tracy had been the attorney counsel or ad
wiser Of this plaintiff At the interview at Mr. Moultons
house. the paper dated JAM 1871 and called the Let
of Contrton, written by Mr.. Moulton except line
or two shown to and examined by Mr. Tracy After
that, Mr.. TiltOn called in, and before pro-
ceeding further asked Mr. Tracy whether IL difficulty
should between him and Mr. Beecher he would act
the latter and Mr. Tracy said that he would not Mr.
Tlton then made explanations Did he communicate to
Mr. Tracy and the other present. any matter not
previously known and that would enable him to
Mr. Beecher better than he could otherwise have done
In testfying to conversations with the defendant and
thus what through him Mr.. Tracy had known Mr.. Mou
stated Mr.. Beecher that he had told Mr. Tracy
truth OF the matter told him the fact OF the case as
1t was" " Theodore TiltOn had denounced me for so
doing and had said that had business TO reveal
&b,.+ D.. ne ~
You will therefore observe that before the promise made
by Mr. Tracy he had according to Mr. Moulton become
possessed OF the case what Mr. Moulton calls the fact
and that Mr. Ton censured Mr. Moulton for making the
communications. What confidential communication
could Mr.. Tton have made beyond the information
which Mr.. Mouton had already gveni You may also
consider that the whole before yo whether
any fact secret that Mr. TitOn would have withheld
was transferred q beneftto Mr.. Beecher More
over at that interview Mr. Tracy understood the
versaton Mr.. Tton's charge Of inferior grade
and could not become the subject Of litigation in
court
You will observe, gentlemen, that have paid what
you may think undue attention TO this evidence The
testimony az the interview at Mr.. MoultOns house
when Mr. Woodruff was present, and when this promise
was made, received at early stage Of the
and with view to the evidence as 1t then stood before
me- Other evidence has since been received and H. con-
Meeting what has since been received with what was be-
fore when made that decision, you should come 10
the conclusion that Mr. Beecher had not agreed Mr.
Tracy the person TO speak and act for him on that
easiOn then you will exclude all that testimony be-
cause in order make 1t admissible here, Mr. Beecher
should have been present some person representing
him been present And the testimony was received, not
on the theory that Mr.. Tracy confdentay related
to Mr. llton, that he thus otherwise related
to MI Beecher, and then and there represented him,
and therefore the testimony received as though Mr.
PeQf her. W s
erty TO try this witness in respect TO the line Of profess
siona duty unless you think it mpars the force Of his
testimony and shows such bias prejudice as
would renure YOU In the inst infernretation Of