Evening star., 1869-06-28
LOCAL N e W 8.
The Case Of stanton ast. smithssn, &c.

The Case OIL stanton agt. Smfthson. &c.
CIRCUIT COURT, Judge Wyls.-On Saturday,
he Jury in the case OF Messer agt. Rowland
Srachan, for damages for alleged malpractice
in drawing a tooth-found for dsfsndants.
Judge Wylie delivered his opinion on the
notion Of oyer entered in the case of w. T.
Snithson agt f. n. Stanton, overruiing the
motion Of the plaintiff to compel the defendant
20 produce the original Of certain letters, orders
Tor the following reasons:
l. Becanse it Is premature. The rule re-
order can be made; and the pleadings IN this
action have not yet reached that point. Until
the cause Is AZ issue, by the pleadings, the
Court cannet tell whether or not the produc-
quenee 10 the party applying for their produc-
tIon- In the present case the defendant pleads
IN substance that he was justified in ordering
The SEIZURE Of the plaintiffs property and the
Imprisonment Of his person, because the
defendant at the time was Secretary of War
and the plaintiff was engaged in reasonable
correspondence with the enemy, and was a
spy Tor the enemy within the eutrenched lines
of the Government forces and in the capital of
the nation durin period Of war, and as eyi-
dence OF the truth Of the plea sets out OF copies
Of certain letters alleged to have been written
by the plaintiff to the enemy sigued IN a ficti-
nous name IL was wholly unnecessary to set
fault IN his pleading. But the plaintiff must
know whether he was the author of the letters
IN question without their productions. He
Knows whether IN fact be was engaged as a
spy for the enemy. giving him intelligence
preIudlcial TO the government of his country in
time CT war The production of the letters,
therefore. canDoG be necessary to enable him
even 70 prepare his replication
?. The motion Is refused also for the reason
tha' y has not been shown. or even alleged,
tnat me original letters in question are in the
possession or under the control of the defen-
dan,. The pleas OF the defendant aver that
they came to his knowledge and possession as
Secretary OF War, and it rs judicially known to
the Court, that MIR. Stanton Is no longer con-
nected with the Government II that capacity
The letters must be presumed to be at present
among the archives Of that department; and il
70, are quite as accessible for inspection by the
plaintiff as by the defendant.
,. The professed object of thu motion is to
compel he production OF the papers in quss-
tiOn IN aid of an action for a tort. / have been
referred TO no authority where this has ever
been done, and have found none myself. In
Glynn vs.. Houston. 1 Keene's ch. X 3,9, the
Court expressly refused 10 sustain q bill of dis.
Coyery for that object.
After stating fully the points of the case re-
terred TO In which Lord Langdale saId .'that
bill OF discovery cannot be sustained in aid Of
an action for a mere personal tort,n Judge
wyhe Gays:
"The decision in this case, however, was not
placed by the Master of the Rolls on this
ground alone, but manly also on the ground
that the evidence sought for by the bill might
be made the subject of criminal charge against
the defendant-a ground Of objection even
stronger in the case under consideration than
of the Rsils.''
AS 70 the records OF the court.martial and OF
this court, of which the motion Graves over,
Am Of opinion that oyer cannot be given, not
withstanding defendant may have made pro-
fert OF one or both of said records in his pleas.
The rule IS laid down by stephen In his work
on pleading. page o., as follows: "Oyer is
said 10 have been formerly demandable not
only of deeds but Of records alleged in plead
ing; but, by the present practice, II is not now
granted OF record, and can be had only in the
case of deeds, probates, and letters of admins
uaiion, &c-, of which profert Is made on the
har Aa of 80 - tf..yC
oyer has never been demandable.- Again:
TINS autnor says "If profert be unnecessarily
made, this does not entitle to oyer"
This morning, Smithson agt. Stanton plain
uf allowed until I'd Monday IN July TO file
repheanon.
Bradley agt. Fisher on trial, OF which q re.
Port will be found elsewhere.
Judge Wylie gave notice that he would like
a full attendance Of the bar on the morning
after his case shall have been concluded, thar
the cases epen may be disposed Of