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SECOND APPLICATION FOR PAR

TICULARS.

The following order was granted by Judge MCCUE December 7th, 1874, upon the affidavits of Mr. Beecher (ante, page 4), Olin J. Clauson (ante, page 5), and Mr. Shearman below.

[Title of the Cause.]

ORDER TO SHOW- CAUSE.

On the affidavits of the defendant and of Olin J. Clauson made October 17th, 1874, and now on file in this court, and on the affidavit of T. G. Shearman made December 7th, 1874, and all the pleadings and proceedings herein,

It is ordered that the plaintiff show cause before me at a Special Term of this court to be held at the Court House in the City of Brooklyn on the 10th day of December, 1874, at 10 A. M., why he should not deliver to the defendant's attorneys, at some reasonable time before the trial of this cause, a statement in writing verified by his oath of the particular times and places at which he expects or intends to prove that any acts of adultery or criminal intercourse took place between the defendant and the wife of the plaintiff; and why the plaintiff should not be precluded from giving evidence upon the trial of this cause of any such acts not specified in such bill of particulars, and why the defendant should not have such other relief as may be just; and in the meantime let all proceedings on the part of the plaintiff in this cause be stayed.

[Title of the Cause.]

MOVING AFFIDAVIT.

A. McCUE, J. C. C.

City and County of New York, ss.

THOMAS G. SHEARMAN being duly sworn, says:

1. I am one of the attorneys and counsel for the defendant in this

cause.

2. A motion was heretofore made at a Special Term of this court for a bill of particulars in this cause, which motion was argued before Hon. JOSEPH NEILSON, Chief Judge, and was by him denied, and his order denying the same was, on appeal, affirmed by an equal division of this court at General Term.

3. Proceedings in this cause were stayed pending the appeal to the General Term from the said order of the Special Term, and an appeal was

taken by the defendant from the order of the General Term to the Court of Appeals; but no application was made for a stay pending such appeal, for the reason that the defendant was extremely unwilling to occasion any delay in this cause, and the defendant's counsel hoped to obtain a decision from the Court of Appeals some days in advance of the time fixed for the trial, which is Tuesday, the 8th of December instant.

4. The said appeal was argued in the Court of Appeals on Tuesday last, December 1st, 1874, and counsel for the defendant specially requested the court to decide the appeal at the earliest day possible, so as not to interfere with the trial in case the order should be affirmed.

5. I have just received a telegram informing me that the said order has been reversed by the Court of Appeals this day, but I do not know what, if any, order has yet been entered, and the remittitur can not be received until to-morrow, while the opinion of the court in all probability can not be obtained before Wednesday or Thursday next. I have requested Samuel Hand, Esq., who is counsel for the defendant at Albany, to forward the opinion at the earliest possible day, and I have no doubt that he will do so. But until the opinion is received the defendant's counsel can not know the extent and effect of the decision of the court, nor how far they will be warranted in applying for particulars, and can not, therefore, safely bring on the hearing of any motion for that purpose.

6. Wm. M. Evarts, Esq., is the senior counsel for the defendant, and as such, argued the appeal before the Court of Appeals, and he has chief control and regulation of this cause. He is now engaged at Washington in the argument of a case before the Supreme Court of the United States, in which the Government is interested, and which the Attorney-General insisted on bringing to argument this Term. It is not probable that Mr. Evarts can return before Wednesday, and it is possible he may not return until Thursday; and his associates in this case are unwilling to bring the motion for particulars to a hearing before Mr. Evarts' return, and before he has had an opportunity to read the opinion of the Court of Appeals.

Sworn to before me, December 7, 1874,

OLIN J. CLAUSON, Notary Public, N. Y. Co.

THOS. G. SHEARMAN.

ARGUMENT ON SECOND MOTION FOR PARTICULARS, BEFORE JUDGE MCCUE, THURSDAY, DECEMBER 10th, 1874. *

Mr. Shearman.-If the court please, this is a motion renewing an application for a "bill of particulars," as it is called, under an order that the plaintiff be required to show cause why he should not deliver to defendant's attorney, at some reasonable time before the trial, a statement in writing, verified by his oath, of the particular times and places at which he expects or intends to prove that any acts of adultery or criminal intercourse took place between the defendant and the wife of the plaintiff, and why he should not be precluded from giving evidence upon the trial of any such acts not specified in the bill of particulars, and why he should not have such other relief * An intermediate motion relating to the time of trial is omitted.

as may be just. This order to show cause was obtained upon the affidavits formerly read, and with which your Honor, having sat on the appeal to the General Term, is familiar, upon the complaint, the answer, the affidavit of the defendant and the affidavit of O. J. Clauson, mace Oct. 17, 1874, which set forth the statement of the plaintiff published in The New York Graphic, in which he alleged that these times and places were explicitly made known to him; and it was obtained, further, upon a new affidavit of Thomas G. Shearman, which is not very material to read, as it simply states the fact of the appeal to the General Term, the appeal to the Court of Appeals, the reversal of the order by the Court of Appeals, its remittance to this court for further action, the fact that we had not at the time of making this affidavit received the opinion of the court, and the reasons why the motion could not be made before Thursday, in consequence of the necessary delay in obtaining the opinion of the court and remittitur, and the absence of Mr. Evarts. Mr. Evarts has but just returned this morning. And I am sorry to say that the opinion of the Court of Appeals in an official form has not yet come down, although we applied for it immediately. I understand the fact to be that the opinion, as published in the newspapers, is the first draft of the opinion, and before the Judges send it out in an official form, they prefer to revise it, simply to see that there are no small mistakes, as to the volumes of reports, the dates, and such matters. I understand that the plaintiff has an affidavit, which he will now read.

Mr. Morris then read the following affidavit : [Title of the Cause.]

City of Brooklyn, Kings County, ss.-Theodore Tilton, the above-named plaintiff, being duly sworn, deposes: That the sum total of the knowledge now possessed by him of the sexual intercourse between Henry Ward Beecher and Elizabeth R. Tilton, and of the times and places thereof, consist as follows: First Confessions of the said sexual intercourse made by Henry Ward Beecher to Francis D. Moulton, Emma R. Moulton, and Theodore Tilton, and others.

Second: Confessions of the said sexual intercourse made by Elizabeth R. filton to Emma R. Moulton, Martha B. Bradshaw, Florence Tilton, Theodore Tilton, and others.

Third: Written and printed papers, documents and letters by Henry Ward Beecher.

Fourth: Written and printed papers, documents and letters by Elizabeth R. Tilton.

Fifth Written and printed papers, documents and letters by other persons. Sixth Acts, declarations, and conduct by said Henry Ward Beecher and said E. R. Tilton, respectively, tending to prove such sexual intercourse, without locating it in any time or place.

Seventh And various circumstances not amounting to direct proof, de rived from the acts, oral declarations, and written papers and documents of the said Henry Ward Beecher and of other persons, communicated to him, and admissible against him.

And deponent further says that the aforesaid confessions, made to others

than this deponent, did not, to this deponent's knowledge, nor did any or either of them, specify any time when or place where any sexual intercourse between the said defendant and the wife of this plaintiff occurred.

That the confession so made to this defendant, named but two specific occasions and but two places when and where such intercourse was had, namely, the one at the house of said defendant, in the city of Brooklyn, on the 10th day of October, 1868, and the other at the house of this plaintiff, in said city, on the 17th day of October, 1868.

But this deponent is not absolutely certain that the above are the precise dates given by said confessions, but is positive that they were about and very near to those two days.

Nor is this deponent positive that the places assigned to these dates were as above stated, it being possible that the intercourse stated above as occurring on the 10th October 1868 may have been at the house of this deponent, and that on the 17th October 1868 at the house of the defendant.

And this deponent further says, that the confessions so made to him admitted various acts of adultery by the said defendant with the said wife of this deponent between the said 10th of October 1868 and the spring of 1870, but did not particularize any time or place otherwise than as above stated.

That this deponent does not expect to be able on the trial of this action to prove by any eye-witness any such intercourse, or to prove any definite time or place when or where such intercourse occurred, except by the confessions aforesaid, and that the only proof of the adultery charged by the complainant within the control or knowledge of this deponent, or which he expects to be able to offer upon the said trial; and this deponent is unable to furnish any further or other statement "of the particular times or places at which he expects or intends to prove that any such acts of adultery or criminal intercourse took place between the defendant and the wife of the plaintiff," than is above given.

And this deponent respectfully says that any order for particulars as prayed by this motion which shall preclude this deponent from maintaining this action by proof of confessions, acts and declarations, and other testimony tending to prove the adultery named in the complaint, although such evidence may not indicate the time and place of its commission, would deprive this deponent of material testimony, and, as he is advised by his counsel, and believes, would injuriously and unjustly restrict his legal rights, and he therefore respectfully prays and insists, in case this court should grant any order for particulars, that a clause may be inserted therein to the following effect, viz.:

But this order is not to be so construed or applied as to prohibit the plaintiff on the trial of this action from introducing evidence of confessions, acts, declarations, writings and documents which may be admissible under the general rules of evidence as if this order had not been made, and which do not in terms -refer to any particular act or time of adultery, but proving by such evidence the adulterous intercourse charged in the complaint, although it may not thereby appear to have been committed on any particular day or at any particular place. Sworn to before me this 10th day of Dec., 1874, THEODORE TILTON.

GEO. W. RODERICK, Notary Public.

JUDGE MCCUE.--Won't you read that last paragraph again—that qualification in the order?

Mr. Morris read the paragraph called for.

Mr. Shearman.-If your Honor please, before coming into court I had drawn up an order which I shall propose, and which I intended to submit in the course of my argument, and I may as well submit the particular clause on this point now. After the usual order as to particulars, I have inserted this clause:

"But this order is not to be construed as precluding the plaintiff from giving evidence of any alleged confession on the part of the defendant, or any such criminal, wrongful, or improper acts, in which alleged confession no particular time or place shall. be alleged to have been referred to."

To that, your Honor, we, of course, have no objection, because we offer it as right and fair, and in accordance with the decision of the Court of Appeals and the order which we ourselves have drafted. We must object to the word "acts" inserted by the gentlemen on the other side, because it is impossible that specific evidence of any acts should be given that should not point to a particular occasion, and there is an inconsistency in the language of his order because he proposes that he shall be allowed to introduce general evidence of acts which shall not refer to any specific acts-taking out the verbiage in his order. In every other respect that order as we have drafted it covers the entire ground proposed by the plaintiff.

JUDGE MCCUE.-Mr. Shearman, can not the proposed order be modified so as to make that perfectly clear, and to avoid that apparent inconsistency? I understand their order proposes to give in evidence acts which, however, do not tend to prove any particular act of adultery.

Mr. Morris.-What we propose is perfectly manifest. When we go to trial upon this case we want all the legitimate evidence to have its legitimate force. We do not want, after we have introduced our evidence, to have the order in such a shape that the court will say that the jury, notwithstanding they find that the adultery was committed, must go further and declare that it was committed upon a particular day. There is a manifest injustice in that. It does not require any argument.

Mr. Shearman.-Your Honor, I think we shall be willing to agree

Mr. Evarts.-That is another matter, what the jury have to find; but really there does not appear to be very much difference.

JUDGE MCCUE.-It seems to me the difference can be reconciled.

Mr. Shearman.-It can, your Honor, in this way, by inserting after the word "acts" where it first occurs, where this proposed order says, "He shall not be restricted from introducing evidence of confessions, acts"-inserting there, "other than acts of adultery;" then it will be consistent with the latter part of the clause. With that modification, we have no objection to take it.

JUDGE MCCUE.-Mr. Morris, they enable you to prove all acts that may tend to prove the main fact in the case-that you can prove by any circumstantial evidence.

Mr. Evarts.-The point, if your Honor please, should be intelligible to

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