documents of Mr. Beecher ought not to be produced in my statement; and that is the substance of that conversation as I remember it at that time; and when Gen. Tracy went away I saw Gen. Butler, and he said Gen. Tracy's idea

Mr. Fullerton.-You need not state what Mr. Butler said in Mr. Tracy's absence. Now, go to the occasion referred to by Mr Tracy's examination of you. Mr. Tracy.--What was that occasion ?

JUDGE NEILSON.-Where was that occasion ?

The Witness.-Mr. Tracy did not name it.

Mr. Beach.-The occasion at Mr. Moulton's house, when Mr. Tracy inquired of him whether it was upon that occasion that the form of statement was finally agreed upon.

JUDGE NEILSON.-That was an occasion when he was not present.
Mr. Beach.
agreed upon.
agreed upon.

That makes no difference. The witness says it was finally
We want to know why it was agreed upon, and how it was

Judge NeilsoN.—I think we must leave it as it is. Mr. Tracy was not present.

Mr. Fullerton.-Do you recollect an interview in the back room, when the committee was sitting in Mr. Storrs' house, when you went to present your statement? A. I remember Mr. Tracy was there when I presented a statement.

Mr. Evarts. We object to that, on the ground that it is not any part of our re-cross examination.

Mr. Fullerton.—Mr. Tracy asked the witness whether at any time before the statement was presented to the committee he (Tracy) knew what the statement was to be.

Mr. Tracy. With his knowledge.

Mr. Fullerton.-I know that, and what I now ask him is to try and draw his attention to an interview between him and Mr. Tracy at another place, in the back room where the committee sat, at which time Mr. Moulton stated to Mr. Tracy what his statement was, and Mr. Tracy approved of it. That is a direct answer to the inquiry which was put by Mr. Tracy.

Mr. Evarts.-Then we asked him a general question, and he answered it. Mr. Beach.-We try to show he is mistaken, by calling his attention to an interview.

Mr. Evarts. And now they say, having asked him a general question, and getting a general negative, that that gives them a right to go into all interviews and conversations that they may wish to explore to prove he has been incorrect in that statement. We don't go into that.

Mr. Tracy.-The question stands in this way. The witness testified on the direct examination that it was determined at the Fifth Avenue Hotel, at my request, that this statement should be withheld. On his cross-examination he testified that it was determined, at a conversation at his own house, at which I was not present, the ensuing day. Then I asked him the question whether he had any knowledge that I knew, prior to his appearance at Mr. Storrs', before the committee on that day, what his statement was to be, and he said he had no such knowledge.

The Witness.-[To Judge Neilson.] That is just the point on which I wished to make an explanation in my answer, if your Honor please. It was not finally determined; Mr. Tracy did not know what the final determination was to be.

Mr. Beach. -The witness has corrected that misstatement of Gen. Tracy. The point is just this: Mr. Tracy has extracted from this witness the answer that he (Tracy) did not know of the statement of Mr. Moulton until after or at the time he appeared before the committee. We believe that that was a mistaken answer upon the part of the witness; and for the purpose of refreshing his recollection, and enabling him to correct that answer, we, in our re-direct examination, call his attention to an interview between him and Mr. Tracy, in which Mr. Tracy was informed of the very fact which, on cross-examination, the witness has mistakenly answered he did not know. there any rule —

Now, is

JUDGE NEILSON.-That is a correction the witness has a right to make, of

Mr. Tracy.-According to the question put, it is after his appearance before the committee.

Mr. Beach.-No, it is not.

JUDGE NEILSON.-Well, I think we will hear the correction.

Mr. Tracy. -Your Honor will note my exception.

The Witness.-I saw Mr. Tracy in the committee room before I made the report to the committee, and told him I had in my statement only presented the documents quoted by Theodore Tilton in his statement.

Q. What reply did he make to that?

Mr. Tracy.-I object to that, your Honor.

JUDGE NEILSON.-That covers the point that Mr. Tracy didn't know.
Mr. Fullerton.-His reply might indicate very clearly that he knew,
understood and comprehended it, and approbated it.
JUDGE NEILSON.-This indicates it clearly enough.

RE-RE-CROSS-EXAMINATION BY MR. TRACY.

and

Mr. Tracy. That was in the committee room, you say? A. In the committee room, I think; yes, sir.

Q. And in the presence of the committee? A. In the parlor. I forgot they knew it. When I say "the committee room" I mean Mr. Storrs' house. Q. In the parlor? A. They were in the back parlor, and I think you came out in the front parlor.

Q. When you came into the room? A. I think so.

Q. Then you, for the first time, informed me what your report was to be? A. I think so; yes, sir.

Q. That is your short statement is it not, that you submitted to the committee that day? A. The time at which I presented to the committee the documents quoted by Theodore Tilton in the statement.

Q. What day of the month was that? A. I don't recollect the day of the month.

Q. It was your statement before the committee, not what is known as your long statement? A. No, sir; that was not made until after Mr. Beecher made his.

Q. Not either of your long statements? A. It was not either of my long statements.

JUDGE NEILSON.-It was not either of those papers you said Gen. Butler prepared. A. No, sir; it was a modification of the first statement Gen. Butler prepared? The meeting in my house, I would like to explain, was in consequence of the meeting at the Fifth Avenue Hotel between Mr. Tracy and Gen. Butler and myself, and Gen. Butler told Mr. Tracy that there would be a conference at my house the next day, and promised that he would present the views of Mr. Tracy at the meeting next day at my house. Mr. Woodruff was in favor of making the report, and my wife was in favor of withholding it, and it was determined to withhold it.

Mr. Evarts.-I move to strike that out.

JUDGE NEILSON.-I think not; that is an explanation.

Mr. Evarts.-This is a conversation between him and General Butler outside of the time Gen. Tracy was there.

JUDGE NEILSON.-They don't object to that, of course; it was understood the night before there would be a conference next morning on this subject. The next morning there was a conference held. What General Butler said and what Mr. Woodruff said ought to be stricken out, of course.

Mr. Evarts. If your Honor will pardon me for being somewhat explicit here, I ask to strike out all that this witness has given, not in response to any question, but which is a volunteer statement, on the ground that it is not admissible evidence, especially from the fact of its not being drawn out by any question of ours. Now, the parties on the part of the plaintiff sought to introduce a conversation, or the witness sought to introduce, before, a conversation between General Butler and himself, when Gen. Tracy was not present, which was promptly rejected by my learned friend. I understand what he has now voluntarily said is exactly what he was going to say then.

Mr. Beach.—I suggest to Mr. Evarts, sir, that he is mistaken in regard to what the witness said concerning the declaration of Mr. Butler that there should be a consultation next morning. That was in the presence of Mr. Tracy The Witness.-That is the point exactly.

JUDGE NEILSON.-The general statement is received by way of explanation, to show that the purpose of the night before was carried out, except that Mr. Tracy was not present.

The Witness.-That is it exactly, sir.

JUDGE NEILSON.-But the words on that occasion said by Mr. Woodruff and by Mr. Moulton are stricken out. Now, that is all by this witness, I understand. Mr. Beach.-Yes, sir.

JUDGE NEILSON.-Mr. Moulton, you can retire.

Mr. Evarts.-Your Honor will note our exception to denying the motion to strike it all out.

JUDGE NEILSON.-Yes, sir. •

[THE END OF THE TESTIMONY OF F. D. MOULTON.]

NOTE

ON THE RULES OF PLEADING APPLICABLE

FOR ADULTERY, AND ON THE LIMITS

THE ISSUE.

IN ACTIONS

OF

The general principles applicable to this subject are as follows:

The defendant is entitled to a specific allegation of time, place, &c. ; but if this is not secured before trial, evidence is admissible under a general allegation; but in case of surprise, defendant is entitled to an adjournment. The entire intercourse is regarded as one transaction.

Acts of adultery prior to the period limited by the statute of limitations may be proved, to give significance to improper freedom, &c., within the period. In connection with proof of at least improper familiarities within the time alleged in the complaint, evidence of acts of adultery previous to that time is admitted to give significance to those familiarities. But evidence of acts of adultery subsequent to the period alleged in the complaint is not admissible, except by way of corroborative proof in connection with at least presumptive evidence of acts of adultery within the period. The cases on this point, however, involve some conflict.

Whether the adequate proof relating to the period alleged, must be given before other proof, or whether this is in the discretion of the court, is left in doubt by the authorities.

The following cases illustrate the foregoing principles:

I. Of particularity in pleading.

Freeman v. Freeman, 31 Wisc., 235 (Supreme Court, 1872, Opinion by DIXON, Ch. J.). Action for divorce. The court say, The offense charged (adultery) is a most grave and serious one, for which no person can be required to answer except upon the distinct and positive specification, to which the proof must be strictly confined, for otherwise the party can not come prepared to defend, and the greatest injustice and wrong might be committed."

66

Vance v. Vance, 17 Maine (5 Shepley), 203 (Supreme Court, 1840, Opinion by EMERY, J.). The court say, The strict rules of pleading applicable to common law cases have not been followed in libels for divorce. We apprehend that it may become important to adopt a practice of greater particularity in the allega. tions in cases of adultery, in order to prevent surprise and to enable a respondent to prepare for trial.

Germond v. Germond, 6 Johns. Ch., 347 (1822, Opinion by KENT, Ch.). Where the feigned issue specified a particular individual in the county of R., and had no general charge as to that county, but had a general charge as to persons unknown in another county, Held, that, in respect to acts in the county of R., the plaintiff should be confined to that specific charge of adultery with the individual named; and, admitting evidence of adultery there with other persons, must have operated as a surprise.

Wood v. Wood, 2 Paige, 108 (1830. WALWORTH, Ch.). The only safe and prudent course, says the Chancellor, is to require the charge, whether of crimination or recrimination, to be stated in the pleadings and in the issues, in

such a manner that the adverse party may be prepared to meet it on the trial." And the history of Germond v. Germond (6 Johns. Ch., 347; 1 Paige, 83), which the Chancellor recounts, illustrates the necessity of specific allegations, and of confining the proof thereto. And he accordingly held, that if the charges in the bill or answer are not sufficiently explicit, the parties may make that objection when an issue is applied for, and the court will then see that it is so framed that neither party shall take any undue advantage of the other at the trial.

Shoemaker v. Shoemaker, 20 Mich. (2 Clarke), 222 (Supreme Court, 1870). Where the ground of divorce, charged as stated in the bill, was adultery," with divers persons, whose names are at present unknown to your orator, at divers times and places, but at what times and places your orator is not informed," and also specifying the time and place with a certain person. Held, that this general and vague method of accusation was insufficient to authorize testimony to be introduced under it, and no decree could be based upon such charges.

In Porter v. Porter, 3 Swab. & T., 596 (1864, Prob. & Mat., before the LORD ORDINARY), a petition for divorce for adultery, the third allegation was that since October 8, 1846, said E. P. has, on divers occasions, committed adultery," &c., "held that this must be struck out or amended by inserting particulars." The fourth allegation was, 'that from the month of April, 1864, and up to the present time (the cause was heard November 8, 1864), said E. P. has been habitually visited at her residence, at, &c., by B. G., and that on divers of such occasions, particularly on the night of August 31st last, she there committed adultery with the said B. G." Held, that this was sufficient, without further particulars.

In Coddington v. Coddington, 4 Swab. & T., 63 (1864, Prob. & Div., before the LORD ORDINARY), it was held, that if the particulars were insufficient, application for further particulars should be made : if that was not done, the evidence would be admissible at the trial, but, in case of surprise, the party might have an adjournment. To the same effect is Barnes v. Barnes, L. R. 1 Pr. & D., 505, 506 (1867, before LD. PENZANCE), and Breinig v. Breinig, 2 Casey (26 Penn. St.), 161 (Supreme Court, 1856, opinion by BLACK, J.).

Whittington v. Whittington, 2 Dev. & B. [N. C.] 64 (Supreme Ct., 1836, Opinion by RUFFIN, C. J.). Held, that a petition for divorce ought, as far as possible, to charge specifically the facts to be given in evidence. When open

and promiscuous prostitution is the foundation of the libel, it may be sufficient to allege it in more general terms; but even then, time, place, and circumstances may be material. But when the plaintiff relies on adultery committed with a particular person, or at a particular time, such person, time, and place ought to be specially and plainly charged.

Wright v. Wright, 3 Texas, 168 (Supreme Ct., 1848, Opinion by HEMPHILL, C. J.). The statute regulating the law of divorce requires a full and clear statement of the cause of action. This full and clear statement must embrace the material facts constituting the charge, together with the material circumstances of manner, time, and place. General charges of cruelty, adultery, &c., are not sufficient to sustain the action. This explicit statement of facts is necessary, that the defendant may know what he is called upon to answer, and be enabled to make the proper defense.

Adams v. Adams, 20 N. H., 299 (Superior Ct., 1850, Opinion by GILCHRIST, C. J.). Held, that in a libel for divorce, proof of adultery at a different place from the one alleged, is insufficient; also that a charge of adultery with a person or persons unknown to libellant, is sufficient to admit evidence of the act with any person identified in the evidence.

Kane v. Kane, 3 Edw., 389 (1840, Opinion by W. T. McCOUN, Vice Ch.). Held, that a general charge of adultery with divers other persons, besides the paramour named, to the complainants unknown, is not sufficient to base a decree upon. Time, place, and circumstances must be stated, though the names of persons with whom committed are unknown.

Washburn v. Washburn, 5 N. H., 195 (1830). Held, that if it be alleged in the complaint that the defendant committed adultery with a particular person, evidence to prove adultery with other persons is not admissible.