HORTON against HORTON.

J. R. LAWRENCE, moved to set aside the verdict, and for a new trial, on the ground of the misconduct of the jury, who agreed upon their verdict while the Court were at dinner, and without the consent or knowledge of either party, dispersed and obtained their own dinners, and returned into Court at the opening thereof in the afternoon.

J. A. Collier, contra, cited Smith v. Thompson, (1 Cowen's Rep. 221,) and note (a) there, where all the cases are collected. The result of these are, that though the dispersion of the jury may be a contempt of Court, for which the jury are punishable, yet it is not such an irregularity as will be a cause for setting aside the verdict.

The Court were of this opinion. They remarked that if the slightest suspicion had appeared, that the privilege which the jury had taken had been abused to the injury of the party, the verdict should be set aside, but none such was shown or even insinuated.

Motion dénied.

ANONYMOUS.

An attorney having commenced an action without being retained for that purpose, and having failed in the suit, this Court made a rule upon him, that he should pay to the defendant his costs. These being duly taxed and demanded, but not paid,

This court cannot control attachment,by ordering the defendant

the effect of an

therein to be denied the jail liberties.

An attorney

E. Williams, moved that an attachment issue against the attorney, and that he be denied the jail liberties, till the who was or

dered to pay the costs of an

action which he had brought without being retained, was attached for not paying them and a rule made, that unless he paid them in ten days after notice of the rule, he should be suspended till he paid.

VOL. II.

75

NEW YORK, Costs be paid, or that he pay the costs within a given time, May, 1284. or be stricken from the roll.

Ex parte
Noble.

Curia. The attachment must take its course. We cannot control its effect. But we order that the attorney pay these costs in ten days after notice of this rule, or that he be suspended from all practice as an attorney, till the costs be paid.

Rule accordingly.

Proceedings to

to prosecute

Ex parte NOBLE.

J. C. MORRIS, moved for leave to prosecute the sureties obtain leave of Jacob Downing, late Sheriff of Cattaragus county. the general He read an affidavit (which was not entitled) setting forth, 1. A judgment of $267 06, in October term, 1820, in fathe statute, (1 vor of Noble against Reid & Dodge.

sureties of a sheriff, under

R. L. 421, s.

6.)

the affidavit

2. That a writ of test. fi. fa. issued and was delivered to In general, Downing, then Sheriff of Cattaragus, January 11th, 1821, should show a commanding him to levy the above sum, and endorsed for fi. fa. and return of nulla that sum, with interest from the 20th October, 1820, who

bona, &c., on levied the money accordingly.

the judgment

against the 3. That at last May term, Noble sued Downing for not sheriff; but returning the writ and paying over the money, and at the

this is not ne

cessary, where last February term, obtained judgment against him for clearly that he $292 78, which was docketed the 16th March last.

it is shown

is insolvent.

4. The affidavit, which was made by Noble, then proceeded thus: "And this deponent further saith, that the said Jacob Downing is, as this deponent is informed and verily believes, utterly insolvent, and destitute of property, has been confined on the jail limits of Cattaragus county, and is unable to pay any part of the said judgment so recovered by him, this deponent, as aforesaid; and that unless this deponent can collect the amount thereof of the sureties of the said Jacob Downing, upon their bond, the same will be lost. And this deponent farther saith, that the sureries who executed the bond required by law, with the said Jacob Dow

ning, as such Sheriff as aforesaid, are, as this deponent is in- NEW YORK, formed and believes, M. B. C., H. W., W. S., J. D., L. D., May, 1824. and H. D. F. Anonymous.

The motion was ex parte, and the only question was if a fi. fa. against the Sheriff and a return of nulla bona, &c., were necessary.

Curia. Before we give leave to prosecute the sureties of the Sheriff, under the discretion vested in us by the statute, (1 R. L. 421, s. 6,) we in general require that a fi. fa. against the Sheriff be returned nulla bona, &c., as the evidence of his inability to pay. But this is not necessary when it appears sufficiently plain, as it does in this case, that the Sheriff is unable to pay. Issuing a fi. fa. and having it returned would be an idle ceremony.

Motion granted.

ANONYMOUS.

THE plaintiff had taken judgment for the same debt, on the same bond, against the executors in one action and the heirs of the testator in another action, and

a

Tho' judgment be gainst executors and heirs

in separate suits for the same debt, on

J. Smith, moved that there be but one taxation of costs. He claimed this under the statute, (1 R. L. 521, s. 14.) the same bond, But,

The Court were clear, without hearing Silliman, who was to have argued on the other side, that the statute did not apply to this case. They said, it is confined to actions where the defendants may all be sued jointly, as in case of a joint and several bond-not where they must be sued severally,

as here.

Motion denied with costs.

there will not be one taxation of costs

under

the

statute, (1 R.

L. 521, s. 14,) which applies

only to cases where the de

fendants may

be sued jointly.

NEW YORK,
May, 1824.

Denslow

V.

Fowler,

In trover for

a bond, a mo

DENSLOW & WIFE against FOWLER.

TROVER for a bond. On an affidavit stating that the bond

tion to compel had been delivered to the defendant, demanded of him, and delivery of a that he had refused to re-deliver it, and that a copy or descopy, to enable the plain- cription of the bond was necessary to enable the plaintiffs to

tiff to declare

accurately, was denied,

declare,

J. Smith, moved that the defendant deliver to the plaintiffs' attorney a copy of the bond within ten days, or that an attachment issue against him. He cited 1 Tidd. Pr. 440, where it is said, that "the plaintiff may have a rule nisi, for the defendant to produce a deed before the commissioners of the stamp office, to be stamped, and also to give the plaintiff a copy of the deed, in order that he may declare thereon."

Silliman, contra, said this motion was unprecedented. Rules like the one applied for, had indeed been granted in actions arising ex contractu, but never in a case where the action is for a tort; and he referred to May v. Gwynne, (4 Barnwell & Alderson's Rep. 301,) where the same distinction was taken.

The Court were clear against the motion, and denied it, with costs. (a)

Motion denied.

(a) If one part only of an indenture be executed, the Court will compel the party having the custody of it, to produce it for their inspection, upon an action commenced against himself by the other party. Blakey v. Porter, 1 Taunt. 384. And the English Common Pleas compelled the production, by a defendant, of an unstamped agreement in his custody, to which the plaintiffs claimed to be parties in interest, upon the instance of the plaintiffs, in order that they might get it stamped, although the plaintiffs were not instrumentary parties, and their interest no otherwise appearing than by their own affidavit, which will prove a claim, but not an interest. Semble, that the Court would compel a plaintiff to produce deeds, by attachment. Bateman et al. v. Philips, 4 Taunt. 157. The Court will compel a defendant, in covenant on a deed which he holds, to produce it to the

Denslow

V.

Fowler.

plaintiff for the purposes of the cause; and it differs not that the plaintiff NEW YORK, seeks for inspection, for the purpose of discovering some defect in the deed. May, 1824. King v. King, 4 Taunt. 666. The principle of these cases is stated by Gibbs, C. J. in Street v. Brown, 6 Taunt. 302. He says, that in both Blakey v. Porter and King v. King, “the ground on which the Court make the rule, is, that the party holding the deed was a trustee for the other." And where two parts of an indenture of charter-party were supposed to have been interchangeably executed, and the part of which the master of the chartered vessel had the custody, was lost at sea, with the ship, the Court would not compel the charterer, being sued thereon, to grant inspection, and a copy of the other part, for the purpose of the plaintiff's declaring with certainty. Id. And Gibbs, C. J. said he should be unwilling to establish a new precedent, though, if there were a case so decided he could not say that he should be unwilling to follow it. Id. And in an action for a libel, by May against Gwynne, 4 Barn. and Alders. 301, the Court refused to compel the plaintiff, who was vestry clerk of a parish of which the defendant was an inhabitant, to produce and permit copies of documents to be taken from the parish chest, in the custody of the plaintiff, though the alleged libel was a written report of the defendant, respecting the plaintiff's conduct, founded, as was stated, on these documents. Stress was here laid, however, on the action being for a libel, and Abbot, C. J. said, "If the papers had been wanted for the purpose of advancing any parochial right, the case would have been different." And in Morrow v. Saunders, 1 Brod. & Bing. 318, where the plaintiff made affidavit that he sued the defendant, to recover damages for a breach of agreement, in not entering into partnership, pursuant to a partnership deed, drawn up and signed by the plaintiff, but remaining in the custody of the defendant or his attorney, and that the plaintiff possessed neither copy nor counterpart of the deed, the Court granted a rule enabling the plaintiff to inspect the deed, and take a copy, though the defendant swore that he had not executed the deed; but the Court required that the affidavit should state, that the party moving had neither copy nor counterpart. In causes on policies of insurance, the Court will make an order, for the assured to produce to the insurers, upon affidavit, all papers or true copies thereof, relative to the matters in issue between the parties. Lawrence v. The Ocean Ins. Co., 11 John. 245, n. (a). Where the action is not founded on any instrument of writing, but the declaration contains only the general counts on implied promises, the defendant is not entitled to an order on the plaintiff, to produce letters or writings in his possession, or to give the defendant copies of them. Willis v. Bailey, 19 John. 268. In the last case, the Court say, "We proceed on the principle, that, from the facts shown, the defendant would be entitled, on a bill of discovery, to the information sought for." When this bill will lie as to writings, see I Madd. Ch. Tit. Bills of Discovery, p. 160, and the cases there cited. In Willis v. Bailey, the Supreme Court decided that this motion to enforce a discovery, must be made to this Court; no order being grantable by a Judge at chambers.