The national Republican., 1869-06-28
rur oornr,. M,

l.
This, as before repor Cd, is suit by smith.
son, who formerly kept brokers' ofnce at
the corner OF Louisiana avenue and Seventh
street, against Secretary stanton for damages
alleged to have accrued by reason OF Smith
sons impflsonment In the Albany peniten-
iiaIy by order of court martial
Tie case came up last week upon an appll-
fcndsnt 10 produce the originals OF certain
letters. orders, &C., and was fhen argued BY !
Judge wylIo on Saturday delivered the toh |
William T. smithson vs. Eiwiu N. stsntor
AZ Law No. Ana. "rhe plaintiff moves i9
this ease that before pleading, he be granted |
oyer, Inspection, and copies OF the several
records, orders and letters mentioned, and
pleas Of the defendau' and particuiariy oflhe
| i1ilowlng," and specifies tie several letters,
Ard records referred to in the arst and second
The third Of shcse pleas contains no refer
| cnee TO an" letters or records.
The motion q made under the 10th rule of
IA party TO an action At law, having 10 his
possession or power books. or writings, con-
be required bI order Of The court to pr pfoducs
| the same on the trial. on motion. and due no.
tioe thereof being given IN eases, and under
PEELED TO produce the same by tac ordinary
| rules Of pI ovidlnE In ehauceryn
ns sl1t M to SsSSpy y. ws 'nss
sui,.n .-.
| may, on motion, give judgment against him BY
defaultn
| The language aud form Of this rule are idcn.
| tlcal with those Of the fifteenth section Of the
judicial act Of 2iih September, if,o, which 10
| applicable only to the courts Of the United
States created by that act, aud not to this
| court,
The motion is ovcrrulei for the following
| reasons!
/. Because i,isp emature. The rule requires
I hat Nha hall hn At laaa haF nrln
can be maiei and the pleadings In this action
| have not yet reached that point. uhtil the
cause Z, st issue; by the pleading, the Cour,
documents can be Of the slightesS consequences
to the party applying for their production.
| la the present ease the defendant Dleada In
substance that he was Justified 10 ordering the
seizure of the pl,intiifTs property and the i'm
prisoumcnt OF mis- person, because the defend.
plaintiff was E-agcd in treasonable cores
pondcncc with 'le enemy, and was spy for
the enemy within tho entienched llnes OF the
nation during peiiod Of war, and as evidence
| OF the truth Of he plea sets out copies OF Ger
tain letters alleged TO have been written by
| name. II was wholly unnecessary to set out
this evidence In tho pleas, Indeed, It hAf fauli
But the plaintiff must know whether he was
the author Of the letters In question without
their production. lie knows also whether In
giving him intciiircncc prciuuicIal TO the GOV.
ernment Of his country in a time ofwnr.
Tue production OF the letters, therefore, can
not be necessary to cnablc him even to prepare
his replication
2 The motion is refused also for tho reason
that II has not been shown, or even alleged,
| that the original letters In question are IN the
| possession or under the control OF the dcien-
dant. The pleas Of the defendant aver that
they came TO hts knowledge and possession ns
Secretary Of War, and II is judicislly known to
. | the Court, that Mr.. stanton is no longer con
nectcd with the Government in that capacity:
; an ing he archives Of that department; Snl il
80, are quite as accessible for Inspection by the
plNinliff Ra by the defendant,
: 3. The profcssed object OF the motion 10 TO
A | compel the production uf he papers In ques-
q tlon In aid Of an action for = tort. IhAye been
: referred TO no authority where this has ever
Glynn vs Houston ! Keone's ch. x $40 the
Court, "Npressly refused to sustain bill Of dir.
n | covery for that object.
, 1851 the plainiiT, Charles Hynn, was resiianl
= at HibrAltat rs . British merchant, aud that
g the defendant, Lieutenant General Sir Wa
n | Stationi that under pretext Of searehinr fol
4 one Gen. Torrigos, nsubjeet Of Spain, waYn
h and capture, ihe defendant ordered I.ieuier .ni
search the private dwelling house OF the plain
sshmsnt @ %S Of soldiers andsr " eonmspd % Of al,
ie Lieutenant Colonel Muir. did surround ani
ID blockade the premiSes of the plaintiff, ant
~
A during several hours. and Searched the sal,
/" dwelling house and the premises adjoining
y And that The plaintiff in attempting to so ou
and coercion OF the soldiers, one OF whom pre-
Y, sented his bayonct and Threatened TO wouu
- and kill the plaintif II he should persist Il
- attempting TO quit his housei that the sIi
w. GeIeTal Torrigos was not and had not bee
IL on the plaintif's premises, and that there wa
Of no iopnd.tion whatever for such search an
" 70 zine 6lii eontained a charge that the defend
mt had In his pos 'ession divers deeds, mil
tary and other orders, reports, books, Litter
US II prayed ! siIscoTery. w. '' W ""''
IN The defendant putin general demurrer I
10 The Master of the Rolls, Lord L,ngd,l,
~ after the argument was closed, expressed =
demurrer, and said "The arst question while
arises upon this demurrer is, whether this is
of case of such n nature as gives the plAintif
" right to discovery, l asked, In the course {
cs tae argument whether any instance could b
al cited Of bill Of discovery In aid OF an aetio
NV SoRSi tort, and the answer which was % given
" me conhrm med me In the Impression that such
bill could not be sustained. / will look int
the authorities which have been cited, an
he dispose OF the case tomorrow"
ed At the next sitting Of the court, his I.or,
ce ship said "I have looked into the suihoIiti,
" bill OF discovery cannot be sustained 10 aid
an action .ot mere personal tort"
The, Ihs heSi',GH Eel ,S iN ms case hoTsyer was no no
l
i | ground alone, but mainly also on the groun
W. that the evidence sought for by the bill migl
Az be msde the subject OF criminal chArg
ry against the defendant-a ground OF objectio
rs, even stronger In the case under cOnsidera'' OF
Ia than It was In that decided by the eminc.
As TO the records Of the court. martial and
this G Iurt, Of which the motion crav' Oyer,
nd am OF opinion that Oyer cannot be given, no
mt withstaudlng defendant may have mlte pr
M per- OF one or both OF said records In his pIea
70 The rule is laid down by stephen In his wof
,I IPSaGhT @ h,ys bsse % :r,r ss
only VI deeds but Of records alleged In plea
ty, ingi but by the present practice, It Ia not 70
NJ granted OF = rrIOrd, and eau be had only 10 it
u u case II deeds, probAtes, and letters Of adni
tn istrAiion, 49,, Of which profert is made on III
A other siic, ofpriyato writings not under sea
Oyer has never been domandable." Agai
this author aays; "If profert be unnecejsA
,r ily made, this does not entitle to Oyer"
u, The authority OF MIR. stephen isquite co
ll | ClGaiyI on these ppintS.
Sayrc Va. El,nore. Mr. AOpleby moved Il
ed | leave 70 examine the plaintiff under the ru
No' OF Goul,, hut the court ovcrruled the motion
&c Wm, MCsSer Va, Rowland & StrachHn. A
tion for damages n'lcdgel to have ensued
Throase was argued by counsel, and the jul
I'd. I uud verdict Tor the attendants.
n"' Samuel T. GnlGST1sSP vs. N SsShs
tachcd (onC horse aud two mulcs) for do
OFF i22S on prImIssory note ~
-, Roberts vs., Adams. Mr. Foley asked for
CT reference by couscdt to u B. M1ssey and II
~ reference was made accordingly.
Morgan VS.. Rollins. This was an action
forciblc entry and detainer. Order dismissii
appeal set aside, aud the case Te'Hstated on Il
X. | calendar,
de- whalcn vs. NcIllhany & Green. Exception
en- | to award Overruled mud Judgment a. awarde
tys Wanstall vs.. B-nwn. The court laid n Fu
'' on plaintiff to employ new counsel
Adjourned.
{. CRIMINAL CouRT-Judge Fi,hG.-This oou
was occupied on Saturday with an Argume
On an application made by Mr.. N. Wilson
y. the United States for writ 10 arrest Gener
BuFhridgC, and send him to Missouri TO
tried In the United states there for ceFta
offences which are alleged to have been col
mltted by him IN the district under that jurI
OF diction. 1t is an old case new papers.
Mr. DAyldgr appeared for Gen, Burbrilg
and Mr.. Wilson for the United STATES. Jud
Fisher heard the argument and reserved