The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1877-03-23

record onlyis, IN act, triangular suit sui generic
the government or public occupying the position OF =
third party without counsel being the duty OF
Court TO protect its interesA From these principles
bed and board or from the bonds OF mstrimony be
entered by the Court upon the mere consent of the
parties OF record, because they cannot bind the
public There must be complaint in due form for
cause authorized by la~, sustained by due
prOol default does not as !. other suits
burden OF the plaintiff In establishing the allegations
The Judge therefore holds that the STATUTE although
prescribing when divorce may be decreed and when
not still leaves u to tho discretion OF the Court do
SO; and, though the adultery may be proven, tho
Court may deny decree whom IL appcars-nrst, that
the complainant connved at or procured the onence
second when the offence has been condoped; third,
discovery OF the offence, and fourth. when the COM
planant is found guilty OF adultery. The Judge then
goes to show that tho referees report containing
the findings OF fact conclusIons1 OF law, must be
brought before the Court, together with the evil
donce. But, on the other hand. rule 92 does
not change the requirements Of the Code; that the
reference OF the shall be Tor the purpose
hearing and determining the same, and that the trial
before tho reioree shall DO conducted in the same
manner as "a trial by the Court The ruio cannot
abrogate tho statute, intended that II
should have ,nas smec, rne grating OF decree
Court. under rule o. simply exercises a super
visng power over trials by referees AS part Of
the system naugurated by the constitution OF 1916
the former practice In equity suits by which evidence
taken before examiner and not IN the presence
OF the tribunal deciding tho issue. was done away
with, and It is only in where been
joined, where some interlocutory question 10 n-
reference
allowable. Moreover, It was expressly ruod in sew
eral that reference in action for divorce alter
issue joined 10 take the evidence and report the same
irregular though both parties appeared before the
referee.
In conclusion Judge Freedman says that "there is
but one way that can In which evidence CHROME.
ously taken after issue by reference, pursuant 10
order to that effect. can be used In action for
DIVORCE and that u.s. that by OF parties may
be read upon subsequent trial had before The Court
and brought OF by regular notice aud in the usual
way. In such Case 1t may DO treated as. and 1t will
hQu I'm fnrpn nf n mi ua tim A utf
before trial But this course must DO agreed TO
by the parties, and thereupon the Court must try the
issues and make Its own innings OF fact and draw its
own conclusions OF law therefrom. AS the case stands
mt present have no alternative but TO deny plaintiffs
motion for confirmation OF tho report and for Judg
mcnt thereon"
IMPORTANT TO BONDHOLDERS.
The United States brought suit against the Erie
Railway Company to certain taxes alleged to
be due the interest coupons paid by tho
company for the years 1865 1887, 1858 and 1869 on
bonds issued by IT, aud penalties for the
failure OF the company to make of the amount
of the taxes The tried before Judge Batchord
the United stntes District Court without jury, and
agreed statement Of fact, in substance ol-
Iows:-Pror TO September l, 1866, the company had
issued and sold sterling coupon bonds dated September
1866, the principal being payable ten years after
date and interest payable in London by J. s. Morgan
Co., to the amount OF SSoo,o0l After the LIST Of
March, 1865. before the lst Of the following Sep
tember tho company issued and sold 5000, 900 Of
the same class of bonds the principal and interest
being also payable by Morgan IL Co. Tho interest on
all the bonds six per cent per annum, paya bic
nualIy the lst Of March ana LIST Of Septem
Der OF each year. The bonds, with the coupons at
tached, werc all sold directly TO foreign bankers prn
cipaly in London. and were resod by them to their
customers in different parts OF Europe. During all of
and coupons held and owned by non resident
aliens, with the exception OF bonds amounting 70
f20 600 and the coupons thereunto belonging which
were held and owned by citizen or citizens OF the
United States residing IN Europe. The amount OF the
interest the same fell due all OF the bonds was
provided for and sent forward by tho company
sum Morgan Co. before tho dates when II fell duo,
which date the same was PAID by their agents, Nor
gan Il Co. The total amount OF interest paid from
and including September 1866, to and including Sep
TENDER 1853, fS6 00O the amount OF tho tax on
which at the rate OF five cent amounted to $4,000
Included therein is the amount OF interest paid the
f20 OF bonds held and owned by citizen or citi
zcns Of the United States, and the amount OF tax
thereon such interest beng "a 200 and the tax f2l0
Tho company made no returns To the assessor or TO
any other officer Of the internal revenue OF the United
thereof did the company withhold part OF tho
tax IRON the amount OF the interest which was paid In
full TO tho holders OF the bonds No assessment was
made the company Tor any portion Of the tax,
any demand made on The company Tor pay
mont TO the Unlied States until December 81 1872
and the company has paid TO the government any
penalty for failure make return OF the payment of
Judge BIatchford Yesterday in rendering his docis
ion In the case, said tho main question was whether
the company was liable TO pay TO the government
the five per cent tax being $4,000 on the flSl, 500
OF interest which II paid to nonresident aliens. II
be regarded settled IN the construct of the
affecting the that who're interest is payable
by corporation any bondholdcr who for any special
reason exempt IRON the tax on such interest then
corporation Is not liable to pay such tax Tho tax
was held to be- a the bondholder in effect and
in substance, the corporation being the agent
OF the government tor collecting and paying
the tax. II was really tax on the income OF
the bondhoder, and was part OF the income tax pro-
vidcd Tor by the act of 1854 and the amendments
thereto Congress, by the tax IN question had taxed
either the nonresident alien or his property out OF
the jurisdiction OF the United States This tax
the resident aliens themselves, and II
which could be upheld. The government was
therefore, not entitled TO recover the the
E1S1. 500 OF interest ch the company paid to
resident ae;,s or any penalty thereon The right TO
the E2lO tho "a, 200 OF interest paid
citizen citizens Of the United States admitted
Mr.. Roger NJ. Sherman appeared Tor the government.
and Judge William ID. Shpman and Henry ]. Burnett
Tor the company.
IMPORTANT WILL CONTEST.