New-York tribune., 1879-10-28
SIR. TTLDEN OBLIGED TO ANSWER.
HIS DEMURRER OvERRULED IN EQUITY.
ARGUMENTS BEFORE JUDGE BLATcHFoRD IN THE
UNITrD STATES CIRCUIT COURT.

HIS DEMURRER OvERRULED IN EQUITY.
ARGUMENTS BEFORE JUDGE BLATCHFORD IN THE
UNITrD STATES CIRCUIT COrRT.
In the Equity Branch of the United States
Circuit yesterday. Judge Batchcrd presiding, ar
gument was heard Gu demurrer interposed by the
defendant 10 the plaintiffs bill OF discovery IN the SUIT
brought by the Government against Samuel D. II ueh
Tor the recovery alleged arrears of income tax Ihe
bill OF discovery requires Mr. Tilien 10 answer severa
hundred questions 10 his operations in stocks ana
railroads from ls62 to 1873 inclusive. 1t also requires
that ne should questions as to bis professional
earnings and his income from fixed investments during
m, same perlod The main ground Of Mr. Tilden's de-
murrcr IS that Government assessors assessed his
income duriag the taxpayng period, and that the
Government ought 10 bound by the decision and acts
OF It's own The point argued in the Dis
trict Court. and Ovcrruled hy Judge Blatchioiu
who was then a District Court Judge.
Ix-Iudge John X. Porter aud \. J. Vanderpocl ap-
pearel for Nr. T.lG AMI DstriC'.Atcruey Woodford
for the Government.
Tx,Jrdst Porter said thai Mt Tlen demurrel to Tho
bin ON thc ground That the compliments have not made
such case as entities them GO discovery as 10 any Of
the matters cor tanned M the n and thit any discovery
vch con ne made 10y he defoulint caunot be OF any
a,nn 10 the compaina9 for the purposes Tor which
discovery Is sought; and hat the complnans have mol
In law any cause of action in the suit at law In ad of
which discovery IS sought. As the first point wien II
naintT is not entitled to q remedy in the original suit
"a ay IA -covcry Wili NOT D. eranicl for IL wonld, as
expressed ly Lord Thnrlow IN Houdepu against Wyatt,
DE purely mpcrucnt. Story's Equity Pleading noie to
section 3la reads: F,r unless the painiif had itle
to recover I'm az action at law suppssug his case - be
true he had no title 10 the assistance Of a Court
of Eqnitv." Ths rue was enforced in Young against
Colt q Bltclfoid. 373l. The right of a complainant
and of "A defendant 10 discovery sJsnds on the same
footing aud when the Court huds that defendant VINO
hll Of dscOvcIy in aid OF his defence ia suit AT
law has NO defence tire original action. the hll Will
he dismissed IN Smith against FOX lG Hare $780, tho
V'ce Chancellor saws: II is settled that party
applying this Court for discovery In aid Of an action
m which the defendant hv plea or demurrer show
that the plaintiff is not entitled TO recover. may raise
the defence bv plea demurrer in equity" In Chol-
mondelay against Clinton q Turner and Russell. 100.
the hill showed title the plaintiff. but from state
m,ni it that the defence relied
and there had IN fact been adverse possession for
twenty year ~ hr'i hat Court ~ Equity ough
not 10 Inter ere In a0 suit at law The second ioht
il that tie bill on s face shows that an action AT law
innot h" mann iihri aeainsi t.e ceiendant, II SUP
mort ~ hs counsel submitted the brief on the discus
sion Of nternOsed 10 the plea in the action
law The thrd point Is tnat bill OF discovery IN aid
of suit ~ law cannot he malnianet under the existing
statutes practice The presiding Judge said counsel
has considered and ruled adyersey on MI question ID he
ease OF Beardsley AGAINST lAt'el "a baichloru Iuo
We therefore content ourselves with The statement OF
proposition The desire 81 the defence 10 reach
decision upon the main question as early as possible,
aud the last point advanced merely for lis protcc-
Mr. woodford d~sened from the proposition made by
Judge Porter that the main question at issue would he
most speedily determined bY I'll" ntcrrosuon oi de-
murrer al this stage OF the proceeding. He admitted
tho proposition that the Government had no case at
law against the defendant they were not emitted
10 KAN inc into the accounts and private affairs ~ the
defendant If the plaintiff mad case at law The Dis
plant contained good cause OF action, and having
already overrued the point now taken in reply to The
defendant be simpv handed III the prlhteu ar,
gument had IN the District Conrl. he there argued
that II the Goverhment haI aus ~ 1 49," a, - ,h
the defendant at common law cerlanf "n a ~
to the present proceeding and - clirS the
case Beardsev against Litel, IN IA blatchiord III
snnport of mis- POSITION lie claimed that All tn nts
raised hy the defendant bad already been heard by
Judge Blatchiord In the District Court and 'ney had
! been decided IN favor Of he Government.
Judge Batcbord said If he overued The demurrer he
did not how the law and the practice the de-
fcndlnt could appeal TO the supreme Court he suU,
posed however that counsel had carefully considered
the point Mr. VanderpOel reped that he had ana That
he fully believed that should the Court declde against
eniifle them to have reviewed 10 the supreme Court
Judge Blatchford said that a week had passed since
the term opened and appeal papers coud not be taken
so as 10 returned before the meeting of the supreme
Court ~ October next y y,aI rom now. row. rood, ~, ,,e
first day of the term, aud has constantly pressed Tor
/ hearing
Judge Batchford-T presume that n decide again~i
the lvernmeut ON Tins uotion II will appeal The de-
fcnd mt certainly states ms intention to appeal II my
| decision oVcrrulcs hls demurrer.
Mr.. woodford-I cannot say what action the Govern
men' viii IKE until after the pending denmr'r r Ia, Ia,
been decided long AGO learned l" follow fIe'ld' ~
Lncons advice not % cross Lich River IN come to H.
should the Court OVcffulc the dcfenlhnH demurrer,
apprehend after considering the law must, Ms coun
lei will decide FOR themselves Wnat they suai DO II
the demurrer is sustained cannot say that the GOV
crnmcut will appeal. Very likely shall he Inclined 1,
put TIE defendant on the stand To-day. however, II Is
| not necessary TO determine tins matter.
Judge Porter asked whether n the Court shouid over
me The demurrer. the Dstrct-AttOrneV would ne WI
ing that the decree should b. entered nuc pro tuhc. ~
on ihe first day of the present term. Mr.. WoOiiOrd
promptly replied that he would consent 10 any thlul
| that Wou.u facilitate a decision.
judge Batcnford said that be must decide The mat
ter purely question OF law. lie had heard nOilre
10 change his previous decision as gwen I'm the court
below that the pluntn l. entitled to prosecute Tie
action his opinion IN the Beardsct case mat bll
az discovery Will he and oi action at common law
H. accordingly OverTulcd the demurrer. lie irccteC
that the plant serve the proposed form Oi order. an,
said tAat u counsel c0n'd moi agree upon II he would
settle II Oh Friday morning