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Moulton v. Beecher.

benefit to follow from a legal investigation before men, some of whom, at least, might have obtained their views and judgments of a cause elsewhere than in the courtroom. The administration of justice should be subjected to no such hazard, and the party who is inconvenienced by a determination that it shall not be, can only blame the indiscretion which induced him to submit his case to the general public, with all possible art and skill, in advance of its legal presentation in the mode and manner established by law. The proper guarding of a trial by jury requires a change of the locality fixed by the plaintiff. If a fair and impartial one then be impossible, it is a contingency only, and exists in spite of efforts to the contrary, to the hazard and uncertainty of which no cause should be subjected (People v. Webb, 1 Hill, 179; People v. Long Island R. R. Co., 16 How. Pr. 106-111).

In the selection of a place of trial for this action other than that of Kings county, the fact that the plaintiff has already, by the service of an amended complaint, transferred it to the city of New York, has not been overlooked. As already stated, such selection cannot influence this motion any more than an offer upon the argument to locate it there could do. When notice of the present motion was given the place of trial was Kings county. That motion could not be in any way prejudiced by the amended complaint. It gave to the court full discretion to fix the place of trial; and to allow the motion to be presented and argued as if the venue was now in the city and county of New York and the effect was to change it from that place to another, would be to give to the amended complaint a force which the section allowing it expressly forbids. When the law fairly commits a discretion to the court, neither party can, by his action, take it away, and for this reason the action of the plaintiff in amending his complaint can not succeed.

Moulton v. Beecher.

In fixing a place of trial for this cause in some locality other than the county of Kings, one manifest objection to New York exists in the fact that its courts are now burdened to an extent which makes the trial of this, if not impossible, at least unjust and unfair to other litigants. Whilst this cause would be dragging its weary way for an indefinite period, interests involving millions would remain undisposed of. Issues actually arising in the great commercial metropolis, and which must be tried in its courts-vital, too, to parties -would tarry and wait for months, whilst one not arising therein, and properly triable elsewhere, was occupying the attention of its courts. This ought not to occur; and justice to others, if not to these parties themselves, who could only reach this cause in a very long period of time, must prevent the selection of New York as the place of trial.

Apart, hovever, from the reason just given, every argument against the county of Kings applies to New York. It is there where the great daily papers, which so largely give tone and color to public sentiment, are printed and published. The trial of this cause at that great centre-more, even, than in Brooklyn—would draw and attract public attention and surround it with influences antagonistic to calm inquiry and judicial investigation. Here, too, are the very papers which the plaintiff chose as his spokesmen to the public. Its population is the very population which he addressed, whose opinions he sought to form, and whose sentiment he sought to direct. Separated only by a river, with the residents of one very largely the business men of the other, with interests and business and social ties very closely intertwined, New York and Brooklyn make substantially a single community, and every argument against the one as the place of trial of this action applies with equal force to the other, and hence the former can not be chosen for the trial of this action.

Moulton v. Beecher.

In selecting the locality in which this action is to be tried, it may cause inconvenience to witnesses to go into one of the rural counties, but I am also satisfied that very many who would be examined, were such trial either in New York or Brooklyn, can, without injury to the merits of the cause, be safely left at home. To every lawyer the fact is obvious, that trials are oftentimes uselessly protracted by the examination of witnesses, whose evidence, which the court can not legally exclude, weighs not a feather in the scales of justice. In a country circuit, with the trial stripped of unnecessary witnesses, this cause could be readily disposed of in a few weeks, and thus great expense saved. It could be tried, too, before a jury intelligent and impartial, who, during such trial, would not be subjected to the influences which would focalize around one conducted upon the spot and scene of the transactions, and which influences exist amid that teeming population, continually stimulated by the appeals of partizans and of the daily newspapers, as they do nowhere else. There is no occasion, however, to subject parties and witnesses to useless inconvenience and expense by compelling them to attend at any extremity of the State. The New York daily papers circulate in Franklin county as well as in those more contiguous to the city. From my knowledge of the State, I incline to the opinion that the county of Delaware will afford as fair and impartial a trial as any other. That county is, therefore, fixed as the place of trial, subject, however to the designation of some other, upon proof of any fact, now unknown to me, which renders the selection of some other more desirable. The attorneys of the defendant will prepare the proper order for settlement, and upon such settlement the suggestions of either party as to the place will be heard and determined.

No appeal was taken, and plaintiff discontinued the action.

Moulton v. Beecher.

III. December. Motion for extra allowance.

Thomas G. Shearman, for the motion.

Roger A. Pryor, opposed.

BRADY, J.-The motion for an extra allowance in this action was pending when the bill of costs was served, and the defendant's attorney insisted that the costs, if to be paid, would be received only on condition that this proceeding should not be prejudiced. It is true that the representative of the defendant's attorney then stated that he paid them unconditionally, and left the money, which was appropriated; but there was no adjustment of the costs in accordance with the rules of the court, and there was no meeting or unison of minds which made the payments so absolute as to subject the defendant to the 56th rule of this court, requiring the motion for an allowance to be made before the final adjustment of costs. The next and remaining question is, therefore, what amount of allowance should be given? I entertain no doubt that that this is a proper case for an allowance under section 309 of the Code, or that the circumstances attending the prosecution are sufficient to justify-nay, to require some indemnity. The defendant had not answered when the cause was discontinued,* it is true; but he had appeared and defended. He had interposed a defense by demurrer, and this was, I think, sufficient under section 309. The plaintiff succeeded upon the demurrer at general term, however, and the only labor performed in the cause, therefore, on the part of the defendant, of which this court can take notice, is that involved in the arguments at special and general terms. This labor, it seems, was unnecessary, and subjected the plaintiff

His original answer had been superseded by plaintiff's service of an amended complaint, and the discontinuance was made before service of answer to the amended complaint.

Fagan v. Knox.

to delay and expense. The result is that the defendant has appeared in the action and done nothing more, except to obtain extensions of the time to answer. The action was one of great importance to the parties, it is true, and if it had continued would, doubtless, have involved many serious complications; but these would have been formidable only at the trial or in its preparation. The cause had not reached that stage, as already suggested, when it was discontinued—there was, indeed, no issue. Under the circumstances, I think a moderate fee only should be granted. This should be given, because the plaintiff, by commencing this action, rendered the employment of counsel necessary. I think $250 should be allowed.

FAGAN v. KNOX.

N. Y. Court of Appeals; September, 1876.

Reversing 40 N. Y. Super. Ct. (J. & S.) 41.

MALICIOUS PROSECUTION.-COMPROMISE OF EMBEZZLEMENT. In malicious prosecution, if there is a conflict of evidence as to defendant's knowledge of explanatory circumstances, the testimony of the plaintiff to the existence of such knowledge being corroborated by other evidence, the question must be submitted to the jury.*

* Compare Heyne v. Blair, 62 N. Y. 19; rev'g 3 Sup'm Ct. (T. & C.) 263; and Bernard v. Rensselaer, &c. R. R. Co., 1 Abb. Ct. App. Dec. 131; Sheridan v. Mayor, &c., 8 Hun, 424.

For some recent cases, as to probable cause,-see Carl v. Ayres, 53 N. Y. 14; Foote v. Milbier, 1 Sup'm. Ct. (T. & C.) 456; Boyd v. Cross, 35 Md. 194; Sharpe v. Johnson, 59 Mo. 557; Wilson v. King, 39 N. Y. Super. Ct. (J. & S.) 384. As to burden of proof. Miller ». Adams, 52 N. Y. 131; 7 Lans. 131. For other recent cases on evidence in this class of actions, besides the authorities cited in this and the pre

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