of the sort. The only point in that case is, that it states how a bill of particulars should be made more certain when the one served was insufficient, that being a bill of particulars in relation to a matter of account. But it was not in the power of the court there to decide that a bill of particulars could only be given in a case of account, because the action was one of account, and a bill of particulars had already been granted. Now, a bill of particulars has not been confined to matters of account; nay, more, there are more cases in the books where bills of particulars have been granted where the action was not in relation to an account, than there are where it was. More than that, the very reason why that clause was added to the Code, "The court may in all cases order a bill of particulars," &c., was, that in the original hasty codification of 1848, provision was made only for items of account, and not for bills of particulars in other cases. The gentleman excepts to the citation of English cases: I suppose on the ground that they are not authority. But from where did we get our authorities for any bills of particulars? Where did the precedents for the 19th of Johnson come from? Purely from the practice of the court of King's Bench; and (the gentleman may not be aware of the fact) the foundation of our practice was laid upon the practice of the Court of King's Bench in England, and at an early stage of our legal history the practice of that court was adopted by our Supreme Court in all cases where there was no rule to the contrary. That practice comes down to the present day. The Code expressly recognizes the power of the court to order a bill of particulars in all cases; and these decisions of the English court are precisely applicable to ours. With regard to all that has been said concerning the theory that your Honor must judicially decide that the plaintiff is going to commit perjury if you grant this motion, I say there is no ground nor pretext for that, and there is none in the affidavit which we presented. I drew a distinction between what was stated in the affidavit, and the inferences which we drew from facts here as counsel. Our affidavit does assert the belief that the plaintiff intends to rely upon-—— Mr. Morris.-The language of the affidavit is "intends to produce." Mr. Shearman.-I accept the language as it is," intends to produce it." If he does not intend to produce false testimony, how can any evidence be introduced at all in this case, if the oath of the defendant be true? For he swears that he never did commit any of these acts. If he never did, then the plaintiff necessarily must produce manufactured and false evidence. But I say, again, it does not necessarily follow that the plaintiff himself manufactures that evidence or knows it to be false; and the affidavit does not so assert. Therefore it was no justification for counter-charges of falsity with knowledge, in the plaintiff's own affidavit. With regard to that affidavit of the plaintiff, it is a very striking circumstance that the gentleman who comes in and stands upon the technical law, as a reason for denying this information, comes into court with an affidavit so clearly wandering outside this case, so clearly going beyond its sphere,--drawn by the plaintiff himself, and evidently not read by the counsel before he came into court, with any care. Mr. Morris.-The affidavit was drawn by myself and handed to the plaintiff and elaborated. Mr. Shearman.-Exactly: the plaintiff wrote it out in his own handwriting, and comes into court with an affidavit intending to spread himself elaborately, taking the legal points suggested by his counsel, but going beyond what his counsel thought necessary. As the counsel says, his client “elaborated" that affidavit, simply for the purpose of spreading himself upon the record and throwing mud right and left. Mr. Morris.-I say he did not go beyond what I advised him. Mr. Shearman.-I can not follow the gentleman in his tactics. He said a while ago that the plaintiff did elaborate; now he says he did not. Now, we seek not to know the witnesses, not to find the documents; and therefore all the cases cited with regard to the discovery and inspection of documents are wholly irrelevant. We do not ask anything of the kind. We do not seek to know the name of a single witness, so that we might tamper with him. What we ask is that we shall have a venue and a date. That is granted to every person when he is tried for any crime. No indictment is allowed which asserts that the defendant "on various days, and at divers places picked the pockets of sundry persons." The indictment is always required to specify the time and place where the offense was committed, and the person upon whom it was committed. Mr. Morris.-Would you in that case move for a bill of particulars? Mr. Shearman.-In the old common-law practice, which still exists in full force in criminal cases, a demurrer was allowed for all manner of insufficiences, including want of particularity. But under the Code, the power of demurring to the complaint on account of the want of a date or a place, is taken away in civil actions. We have no longer that remedy under the Code. The only remedy we have, therefore, is either by a motion to make more definite and certain, or by a bill of particulars. I cite on that the case of Hunt v. Duke (2 Swab. & T. 574). What we seek, then, is to get this ordinary right, which, as the gentleman himself admits, we should have, as a matter of course, in a criminal action. Mr. Morris.-I don't admit it. Mr. Shearman.-We seek to get it by the remedy which the Code and the common-law provide. We seek to get it in the old-fashioned way, by getting a statement of the particular times and places; and I confess myself unable to notice a single argument advanced by the learned gentleman, or to find a single case among those cited by him, which in any way denies the power of the court to grant this motion, or which limits the discretion of the court, or guides it adversely to the conclusion at which we seek to arrive. Mr. Morris. In regard to delay, I will remind the court that they took about seventeen days to put in their answer, which it would only have taken about thirty seconds to draw. Mr. Shearman.-That is a most unwarranted imputation, which I resent on behalf of my client, because, as is well known, at the time the complaint was served he had left for New Hampshire; and the counsel knows (if he knows anything about the Revised Statutes) that there is a most special and complicated provision of law, with regard to the mode of verifying affidavits outside of this State. I am bound to believe he does not know it, judging from conversations which he has caused to be reported; but I say there is a most technical provision, and we had to send three times before we could get the verification in the form prescribed by law. On the day after receiving the complaint, we mailed the answer to our client in New Hampshire. He went, on the day after receiving it, seventeen miles to find an officer before whom he could verify it. That officer forwarded the paper for attestation to the wrong official. We sent it back; and this time it was certified by the proper officer, but in wrong form. We sent it a third time, and I personally superintended the matter in the White Mountains, to get it right. Of course we, as attorneys, might have verified the answer; but we did not propose to give the enemies of our client an opportunity to charge him with evading the responsibility of a denial under his own oath. Mr. Tracy. Since this argument has been in progress, my attention has been called to a case in this court of a similar character, in which one of your associates has settled the rule that even where an application has been made to make the complaint more definite and certain, and that is granted, the court will not then on the trial confine the plaintiff to the particular allega. tions in the complaint, but will allow them to travel outside. If that is the rule of this court, it makes it still more important to grant our application here, requiring them to give us a bill of particulars in which they shall state the times and places concerning which they propose to offer evidence. Mr. Morris.--I have no doubt it would be of great advantage to you to know our evidence. Mr. Tracy. We do not seek to know their evidence, nor their witnesses, nor any discovery of papers and documents. We simply seek to know what is the right of every man charged with an offense which he denies; the time and place when it is alleged that offense was committed. That is essentiai, we say, to enable him to prepare for his defense, else he may be utterly surprised at the trial, both by the locality and the date assigned by the evidence. DECISION OF THE MOTION. On November 5, 1874, the Chief Justice delivered the following opinion: NEILSON, Ch. J.-The complaint charges that the defendant committed the wrongful acts stated "on or about the 10th day of October, 1868, and on divers other days and times after that day and before the commencement of this action, at the house of the defendant, No. 124 Columbia-st., city of Brooklyn, and at the house of the plaintiff, No. 174 Livingston-st.," in said city. An answer, denying the charges, has been put in, and the issue of fact thus joined, noticed for trial. An application is now made for an order requiring the plaintiff to deliver to the defendant's attorneys a statement in writing of the times and places at which he expects and intends to prove that the defendant committed and confessed any such acts. As to the places where the plaintiff may expect or intend to prove that the acts were committed, the complaint is specific; the houses and streets are designated. The information on that point, sought by this application, has been fully given. As to the supposed confessions the complaint is silent, and properly so. Under our system of pleadings the facts are to be set forth, not the evidence of those facts. This distinction must be observed; it is expressly enjoined by the Code; has been enforced by an unbroken chain of decisions. When, therefore, the plaintiff's case is stated in the complaint, the claim or wrong being one of which the law takes cognizance, the pleader is not allowed to add averments disclosing the oral proof by which he expects or intends to support or establish his case on the trial. But it is shown by affidavits that the plaintiff, who could not have alleged in his complaint that such confessions had been made, and might have been prudently reticent on the subject, has stated in a newspaper article that such proof existed. In view of that, the defendant's counsel claims that the plaintiff should be required to state when and where those confessions, if any, were made. The question is not simply whether it would be well for the defendant to have that additional information, but whether the court has the power to make such a requisition. I am satisfied that we have not the power. It would be a dangerous innovation, an anomaly in practice, if every defendant who learns that there may be an attempt to prove admissions could, by motion before the court, compel further disclosures. So far as I am advised, such an order has never been granted. The only remaining ground of the application is as to the times when the plaintiff expects and intends to prove that the acts took place. The complaint has it thus: "On or about the 10th day of October, 1868, and on divers other days and times after that day," &c. That is good and correct pleading. Chitty gives that form for this action, and in a note, it is said, "the injury may be stated to have been committed on divers days, and times," &c. (2 Chitty Pl. 642). But if any question could be raised in respect to that form, the defendant should have applied to have the complaint made more definite and certain. In a case of this precise nature the complaint did not specify the places, not even the county, and Judge REYNOLDS, at Special Term, granted such an application before answer. That is the practice prescribed by the Code. Under the common-law system of pleading, especially where the common counts were used, a defendant might have been taken by surprise as to matters touching which he had the right to be informed, and some remedial practice for the suitor's protection was necessary. Courts of Equity, in the exercise of inherent powers, inaugurated a practice of the nature now invoked, and under legislative directions, the courts of law acquired the right to order a discovery and inspection of papers, but with special limitations, and to require bills of particulars in certain cases, especially as to the items of an account. The elaborate brief handed in by the learned counsel for the defendant has a large collection of the cases in which such power has been exercised. with interesting analogies and illustrations. But none of the cases apply to the legal question involved. In his treatise on practice (vol. 2, p. 48), Mr. Shearman says: "As a general rule, a bill of particulars will not be ordered in an action for a tort. (See Pylie v. Stephen, 6 Mees. & W., 813; Stannard v. Ullithorne, 3 Bing., N. C., 328; Snelling v. Chennels, 5 Dowl. P. C., 80.) Thus it will not be ordered in an action for injuries causing death (Murphy v. Kipp, 1 Duer, 659); nor, usually, in any action for personal injuries (Semble, Derry v. Lloyd, 1 Chit. Rep. 726 per Best, J.)." That learned writer proceeds to state the reason why such bills are not granted in an action for a tort, to wit, that the cause of action must almost always appear with sufficient distinctness in the complaint to enable the defendant to prepare his defense, and refers to Humphrey v. Cottleyou (4 Cow. 54), where a bill of particulars was ordered in an action for the conversion of personal property, "as avoiding great detail in the pleadings," and to Snelling v. Chennels (5 Dowl. P. C., 80), and Key v. Thimbleby (6 Exch., 696), to the point that, in actions of tort, the application should be accompanied with an affidavit that the defendant does not know what the plaintiff is suing for. This last proposition accords with several late cases, in which it has been held that such bills will not be furnished if the defendant already has, or, from the nature of the case, must have the best or fullest knowledge of the facts. Indeed, there are many exceptions, and as to the general theory, a late learned and prudent Judge has said: "The law has always considered sacred the rights of both parties to keep secret their preparations and means of attack and defense" (Strong v. Strong, 1 Abb. Pr., N. S., 238). As indicating the theory that the right of discovery at law has been regarded as matter proper for legislative direction, rather than for such direction as the court, in the exercise of its supposed inherent powers, might in each case choose to grant, our statutes as to compelling discovery in respect to betting and gaming (2 R. S., 926), and illegal brokerage (2 R. S., 979), usurious transactions (3 R. S., 73), and in respect to attorneys (3 R. S., 478, 479), might well be referred to. Moreover, as rules of practice must be general, not changed materially to conform to particular cases, a plaintiff may so shape his case as to meet exigencies, as where witnesses are hostile and refuse to disclose the facts until compelled to do so on the trial. But, as I have said, the question is as to the power of the court, a power to be exercised with special reference to the system of practice established by the Legislature. The Code, in creating a new system of procedure, has prescribed the manner in which a cause of action shall be stated in the complaint, and how a pleading, if defective, may be perfected. It gives to a defendant not satisfied with the frame or terms of the complaint, remedies much more full and adequate than given under the old system. He may move to have the complaint made more definite and certain, and where the claim can be itemized, may also have a bill of particulars. To all this the Code adds the right to examine the adversary on oath before trial, and even at the trial. |