ORDER. The following order was accordingly entered: At a General Term of the City Court of Brooklyn, held at the Court Present,-Hon. GEO. G. REYNOLDS, JJ. The appeal from the order entered in this action on the fifth day of November, 1874, denying the defendant's application to compel the plaintiff "to deliver to the defendant's attorneys a statement in writing of the particular times and places at which the plaintiff expects or intends to prove that an act of adultery or criminal intercourse took place between the defendant and the wife of plaintiff, and of the particular times and places at which he expects or intends to prove that the defendant confessed any such act of adultery or criminal intercourse," having been heard at the General Terin, It is now, on motion of Morris & Pearsall, attorneys for the plaintiff and respondent, after hearing Thomas G. Shearman, Esq., for the appellant, and Samuel D. Morris, Esq., and William A. Beach, Esq., for the respondent, Ordered, That the said order be, and the same is hereby in ail respects affirmed, with costs. (A copy.) Enter, G. G. R. STEPHEN J. COLAHAN, Clerk. APPEAL TO COURT OF APPEALS.* From the order of the General Term, defendant appealed, and filed the following notice of appeal and undertaking: [Title of the cause.] : GENTN Please take notice that the defendant hereby appeals to the Court of Appeals from the order of the General Term of this Court, made herein on the 19th day of November, instant, and entered herein on the 20th day of November, instant, affirming the order of the Special Term, made herein, on the 30th day of October, 1874, and entered herein on the 5th day The proceedings in the Appellate Court are inserted in their connection here on account of the importance of the questions involved, and because of their necessity to an understanding of the subsequent proceedings in this court. of November, 1874, denying defendant's motion for a bill of particulars, and from every part thereof. Yours, &c., SHEARMAN & STERLING, Defendant's Attorneys. To S. J. COLAHAN, Clerk of the City Court of Brooklyn. MORRIS & PEARSALL, Plaintiff's Attorneys. ¡Title of cause.] Whereas on the 19th day of November, 1874, in the City Court of Brooklyn, an order was made by the General Term thereof affirming the order made at Special Term on the 30th day of October, 1874, denying defendant's application for a bill of particulars; and the above named appellant feeling aggrieved thereby intends to appeal therefrom to the Court of Appeals. Now, therefore, Elmer H. Garbutt, of No. 161 St. James place, in the city of Brooklyn, and S. V. White, of No. 210 Columbia Heights, in the city of Brooklyn, do hereby, pursuant to the statute in such cases made and provided, undertake that the said appellant will pay all costs and damages which may be awarded against him on said appeal, not exceeding five hundred dollars. Dated New York, Nov. 21, 1874. ELMER H. GARBUTT. 8. V. WHITE. City and County of New York, ss.: Elmer H. Garbutt, one of the subscribers to the foregoing undertaking, being duly sworn, says that he is a resident and house-holder within this state, and is worth the sum of one thousand dollars over all his debts and liabilities, and exclusive of property exempt by law from execution. ELMER H. GARBUTT. Sworn to before me this 21st day of November, 1874. OLIN J. CLAUSON, Notary Public, New York County. City and County of New York, ss.: S. V. White, one of the subscribers to the foregoing undertaking, being duly sworn, says that he is a resident and freeholder within this State, and is worth the sum of one thousand dollars over all his liabilities, and exclusive of property exempt by law from execution. S. V. WHITE. Sworn to before me this 21st day of November, 1874. ARGUMENT BEFORE THE COURT OF APPEALS, DECEMBER 1St, 1874. Mr. Evarts (with whom were Mr. Shearman and Samuel Hand) for the appellant, argued the following points: I. The order of the General Term is appealable to this court. 1. The order of the Special Term was expressly based upon the alleged want of power in the court to grant the defendant's motion. Nor is this qualified, in any material degree, by the words "and on the other grounds stated." These other grounds are not reasons of mere discretion. The decision was made, as appears from the opinion of Judge NEILSON, on the theory, first, that section 158 of the Code was the sole source of authority to the court, and that the Code did not give the court power to order particulars in such a case as this; and second, that the practice of the courts prior to the Code, established no precedent which would justify an order for particulars in this case, even if the Code were out of the way. Now the non-existence of any practice which would by analogy justify the order demanded by the defendant, would have established the want of rightful power in the court as effectually as the omission of such an authority from a statute creating a court of special jurisdiction. The courts have no such discretion as entitles them to invent an absolutely new practice for use in old and familiar proceedings. And Judge NEILSON'S decision proceeded entirely upon the ground that an order for particulars in this case would be just such an abuse of discretion as this. Mark his words. He does not say that to grant the motion would be merely "unwise" or 66 indiscreet." He says it would be "reprehensible," as a serious and dangerous innovation. This is not the language of a Judge who simply exercised an acknowledged discretion, denying the motion because of some peculiar facts or absence of fact which might exist or not exist in another action of the same nature. It is the language of a Judge who thinks that he is restrained by the law from granting the relief asked. 2. The General Term Judges being equally divided, the order of affirmance was purely formal, and their opinions must be laid out of the case. The fact that Judge REYNOLDS thought that the bill of particulars should be denied on discretionary grounds is wholly immaterial, because Judge McCUE thought otherwise, and the divided court had no power to alter the decision of Judge NEILSON, either in form, substance, or motive. That decision, by the very terms of the order, stands"in all respects affirmed." 3. The order below is therefore made upon a matter of practice, "not involving any discretion," and it affects one of the most "substantial rights" which can be involved in any question of practice. Code sec. 11; Russell v. Conn (20 N. Y. 81); People v. Central R. R. Co. (29 N. Y. 418); Beach v. Chamberlain (3 Wend. 366). II. At common law, the court has power to order a bill of particulars in any action, without regard to its nature, subject, or form. This power is independent of statute: it is incident to the general administration of justice. 1 Phillips on Evidence, 799; Commonwealth v. Snelling (15 Pick. 321); Hancock's Appeal (64 Penn. St. 470); Early v. Smith (12 Irish C. L. Appendix xxxv.); see Wren v. Weild (Law Rep. 4 Q. B. 213). 1. Chief Justice SHAW, in a leading case on the subject, said that the court had power, in any and every action, whether civil or criminal, to require particulars of the claim or defense to be furnished; and that wherever justice could not be done on the trial without the information to be obtained by means of a specification or bill of particulars, the court had power to direct such information to be reasonably furnished, and to require the proof, upon the trial, to be confined to the particulars specified. And in that case a bill of particulars was required upon an indictment for libel. Commonwealth v. Snelling (15 Pick. 321). 2. The rule of common law was that particulars might be obtained in any case where, from the generality of the pleadings, the parties could not otherwise come prepared for trial. Tidd's Practice, 526; Vischer v. Conant (4 Cow. 396). III. The Code of Procedure does not diminish the power which the court had, at common law, to order a bill of particulars, but rather enlarges that power. 1. The Code provides that the court may in all cases order a bill of particulars to be furnished by either party. Code, section 158. 2. This language does not relate merely to items of account. On the contrary, this clause was inserted by amendment in 1851, for the very purpose of enabling particulars to be obtained in actions where there was no account, and removing any doubt that might have existed as to the continuance of the practice of ordering bills of particulars. 3. But in addition to this express provision the Code provided that the former practice of the courts in civil actions, so far as consistent with the Code itself, should continue in force. Code, section 469. 4. The practice prevailing before the Code respecting bills of particulars is therefore entirely applicable to proceedings under the Code. This is settled by a recent decision of this court in a divorce suit, holding that the powers of the courts were not restricted by the Code, except by express language. IV. Some general and vague language in recent treatises on practice (one of which was quoted by the Judge, in his opinion at Special Term), may seem to throw doubt upon the propriety of a motion for a bill of particulars on an action upon a tort. But this is an error, arising partly from inadequacy of research upon the part of the authors, and partly from a misrepresentation of what they have said. It is never safe to adopt any such general language as an absolute guide. It is always necessary to go to the fountains of law and to examine the cases in the reports in order to find what was actually decided, and avoid being misled by mere hasty expressions of opinion. Upon such examination it will be found that bills of particulars have been repeatedly ordered in actions of tort, after mature consideration by the court, and that not only in the English courts, from which we derive our practice on this subject, but also in the courts of this and other states. Reserving for the present the consideration of actions for divorce and for crim. con., it will be found that bills of particulars have been ordered in the following actions of tort: 1. In a civil action for libel. Jones v. Bewicke (Law Rep. 5 C. P. 32). (Reversing the ruling of Cleasby, B., at Chambers.) 2. In a criminal indictment for libel. Commonwealth v. Snelling (15 Pick. 321). 3. In an action for slander. Early v. Smith (12 Irish C. L. Appendix xxxv.). 4. In an action for Islander of title. Wren v. Weild (Law Rep. 4 Q. B. 213). 5. In a writ of dower. Vischer v. Conant (4 Cow. 396). 6. In an action of ejectment. 2 Burrill Pr. 331; Doe v. Phillips (6 T. R. 597); Doe v. Broad (2 Scott N. R. 685). 7. In an action of trover, to give particulars of the articles in question. Humphrey v. Cottleyou (4 Cow. 54). 8. In an action of trespass on land, to describe the locus in quo. Kirwin v. Jones (3 Hodges, 230); see also, Johnson v. Birley (5 Barn. & Ald. 540). 9. In an action for escape. Davis v. Chapman (6 Ad. & El. 767); Webster v. Jones (7 Dowl. & R. 774). V. If it were possible that the court had not power, or would not exercise the power, to order a bill of particulars in a civil action of tort, a fortiori, particulars could not be ordered in criminal proceedings. But we have already shown that particulars are ordered in such cases: a point which we can further illustrate. 1. Particulars were ordered in a prosecution for embezzlement. Rex v. Hodgson (3 Carr. & P. 442); Rex v. Bootyman (5 Id. 300). 2. So on an indictment for nuisance, particulars were ordered of the separate acts of nuisance which the prosecutor intended to prove. Rex v. Curwood (3 Ad. & El. 815); Regina v. Flower (3 Jurist, 558). 3. So on an indictment for being a common seller of liquor, particulars were ordered of the names of persons to whom liquor was sold. Commonwealth v. Giles (1 Gray, 466). 4. On an indictment for being a common barrator, where the gist of the offense is not in a single act, but in a course of conduct, defendant is entitled to particulars. Hawkins P. C., B. 1 c. 83, § 13; Goddard v. Smith (6 Modern, 261); Commonwealth v. Davis (11 Pick. 482); see Lambert v. People (9 Cow. 578, 587). 5. We have already mentioned that the defendant in a criminal prosecution for libel has been required to give particulars of his intended justification. Commonwealth v. Snelling (15 Pick. 321). 6. In the U. S. Circuit Court (Southern Dist.) it is the uniform practice to order bills of particulars in prosecutions for turning out barrels of spirits without payment of tax. VI. Although there is no direct precedent reported in this state of an order for a bill of particulars in an action for criminal conversation, or for divorce, yet there are express precedents in England and in other states of this Union where the common law prevails; and there are plain indications in the decisions of our own courts that it is the policy of the law, here as elsewhere, to give the defendants in such actions the benefit of precision and particularity in the charges brought against them. 1. In England, since the Statute of 1858 (20 & 21 Vic., c. 85), actions to recover damages for criminal conversation must be brought in the Divorce Court, and in conjunction with a petition for divorce, the wife and the alleged paramour being joined as co-respondents, the trial being had before a jury, and damages being recoverable as under the old practice, though the husband is not allowed to put them in his pocket, but they are disposed of by the court, and generally invested for the support of the wife and children. In such proceedings it has been repeatedly adjudged by the English Court of Divorce that the alleged paramour is entitled to a bill of particulars when more than one act of adultery is alleged. Bancroft v. Bancroft (3 Swab. & T. 610); Higgs v. Higgs (11 Weekly Rep. 154); see Sanderson v. Sanderson (20 Id. 261); Codrington v. Codrington (3 Swab. & T. 368); Hunt v. Hunt (2 Id. 574); see also Porter v. Porter (3 Id. 596). 2. The right of the defendant in a divorce suit |