The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1879-10-28
TILDEN's INCOME TAX.

ARGUMENT AT LAST HEARD ON THE DEMUB-
RER TO THE BILL OF DIsCoyERY-DEcIsIoN
AGAINST THE DEFENDANT.
The long litigated Tilden income tax case was
up again yesterday in the United States Circuit
Court before Judge Blachford, on argument on the
demurrer interposed by the defendant TO the bill OF
discovery. which requires him to answer some one
hundred interrogatories propounded by the govern
ment covering his property in stocks and railroads
from 1862 to 1873 The questions also relate to his
professional earnings and income from fixed invest
ments during the same period. The ground OF the
demurrer is that the assessors assessed
his income during the taxable period. and
that the government ought to be bound by
the decision and acts of it's Tho
same point made when the case was
first brought into the United States District Court.
After full argument by United States District Attor-
ney Woodford for the government and eminent coun-
sci for the defendant, Judge Blatchford, who was
then sitting in tho District Court, overrued the de-
PENDANTS proposition. The defence still relies upon
the soundness and business of the first proposition
question OF law and again interposes its demur
in the higher court against the present applica
ton by the government for IL bill of discovery.
Ex-Judge Porter opened the argu nent in favor Of
the demurrer. contending that the compliments
u
bill of discovery to any of the matters contained
in the bill and that any discovery which be made
by the defendant be Of any avail to the
plainant for any of the purposes for which a dis
covery is sought. and that the compiainants
have, not in law any cause Of action
in the suit at law in aid of which dis
covery is sought. And when 1t appears on the face
of the bill of complanants that the plaintiff is not
discovery will not be granted for it would,
pressed by Lord Thurough in Rondeau against Wyatt
unless the plaintiff had title to recover in an action
at law supposing his to be true he had title
to the assistance Of court OF equity. The right Of
Q complainant and of defendant to discovery
stands the same footing, and when the Court finds
that defendant who files bill OF discovery in aid
of his defence in suit at law has defence the
original action the bill will be dismissed.
In Smith against Foy Is Hare 1861. the Vice
Chancellor says 1T Is now =. settled that q
in and Of AN action in which the defendant may by
plea or demurrer show that the plaintiff is not en-
titled recover. may raise the defence by plea or
demurrer in equity" In Chomondeley against
Clinton. Turner against Russell. lO7 the bill
it further appeared that the defeuce rolled upon and
there had in fact been adverse for twenty
to interfere in aid of suit at law Again. Mr.. Por
ter urged that the bill on its face shows that
ton ut law capnot DO maintained against the defend
ant Also that bill of discovery in aid of Suit at
law cannot maintained under the existing statutes
and practice. The Court has already, counsel said.
considered and ruled adversely on the question in
the of Beardsey against Lttel IA Batchford 1O0
THE REPLY.
In reply United States District Attorney Wood
ford claimed that the District Court had already do
cided that the complaint in this case contained o
good cause of action and had overruled the very
point now relied upon in the motion for the defend
ant. The government. he concluded, had o right
to maintain the present proceedings in equity in aid
case Of Beardsley Ltte having clearly decided
that the bill Of discovery lies in such case as the
the defence had been already heard BY Judge Batch
ford himself and decided in favor of the
Judge Blatchford-If overrule this demurrer do
not how under the law and the practice, defend
ant appeal to the Supreme Court Of the United
States.
the Court decide against the defendant on the de-
murrer that decision would be far final decision
enttle him to have it reviewed in the Supreme
Court.
Judge Blatchford-I presume counsel has carefully
considered the question at issue: but week has
papers cannot be taken as to be returned be-
fore the meeting Of the Supreme Court in 1880,
Mr. Woodford commended that the government had
been ready to proceed on tbs first day the case was
called and he has constantly pressed for hearing
Judge Blatchford-I presume IL decided against
the government on this motion 1t will appeal. The
defenco certainly states its intention to appeal my
decision overrules the demurrer, M,
Mr.. Woodford-I cannot say what action the gov
ernment will take until after the pending demurrer
is decided long ago learned the wisdom OF follow
Lick River till came to it. Should the Court over
rule the defendants demurrer-as l apprehend
it-defendant's counsel must decide for themselves
what they shall do. II the demurrer is sustained
cannot say the government vii. appeal Very likely
shall be inclined. If can get this bill of discovery
answered, to putthe defendant himself on tho stand
and 90 to trial. At present. however. IL not
sary to determine this matter.
MR. PORrERs INQUIRY.
Mr.. Porter then inquired whether, II the Court
should override their demorrer tho District Attorney
would be willing that the decree should be entered
nunc pro tune. ~ Of the first day OF the term.
Mr.. observation-disclosures may professionally do
sire with the other side to get this to the Su
preme Court. shall officially do nothing to facil
tate the appeal but will do anything to facilitate
the decision.
Judge Batchford. after few remarks in review Of
the procedure in the case, said he must decide tho
matter before him purely as question of law. lie
had heard nothing during the present argument to
change his previous decision given in the court
below. that the plaintiff is entitled to prosecute his
action the opinion rendered by him in the
Beardsley case that bill of discovery will he in
aid OF action ut common law. The Court then
overruled tho demurrer. directing that the plaintiff
serve his proposed form OF order. and il counsel
could not agree to the form no would settle it
himself on Friday morning next
Counsel Their gathered up their books and left.