N. Y. Superior Court.-Gillott agt. Kettle.-Seaver agt. Robinson.

be made a party to the suit. The contract had been assigned to plaintiff and the bill was filed simply to carry into effect the purpose of assignment. In the case decided in the Court of Appeals, a receiver appointed by the Court was interested instead of an assignee selected by the debtor; and the very question which that suit was brought to determine was, whether the property passed by the assignment to the receiver. In that question the original assignor had an interest; but he had none in this case, where the contract had been unquestionably assigned.

2. That the fact that this action was brought to enforce a contract relating to real estate in another county, did not defeat the jurisdiction of the Superior Court. This was not an action for the recovery of real estate, or for the determination of any interest in real estate; but for the specific performance of a contract. So far as the present case was concerned, the contract might be regarded as a merely personal one; the Court could not consider whether the contract affected real property, but whether it ought to be enforced.

Order of Special Term affirmed with costs.

[Same Term.]

GILLOTT against KETTLE.

TRADE MARKS-INFRINGEMENT INJUNCTION.

This case came up on appeal from the decision of Judge Hoffman. It was an action brought by Gillott, the steel pen maker, against another dealer in the same article, who, it appears, was in the habit of putting the cheaper pens of Gillott's into the boxes that Gillott had originally made and filled with the best quality of pens, thereby, as it was contended, infringing the plaintiff's trade marks, and marked accordingly. In defence it was urged that this was not an imitation of trade-marks. Judge Hoffman, at Special Term, decided that such a course was a wrongful injury of the plaintiff and his business, and granted an injunction against the defendant.

THE COURT, on appeal, affirmed the decision of the Court below.

[Same Term.]

SEAVER against ROBINSON.

SERVICE OF SUMMONS-PRIVILEGE OF NON-RESIDENT WITNESS.

This was a motion before Chief Justice Oakley at Chambers, to set aside service of summons; but his honor stated his decision at the ses

N. Y. Superior Court.-E. Roche and John Roche agt. John P. Farran. sion of the General Term, on account of the importance of the point to the profession. The facts were as follows:

Henry G. Robinson, a resident of Rhode Island, came from that State to this city, of his own accord, and in good faith, to testify as a witness in an action entitled Dobbing against Robinson. While waiting here for the cause to be called, it being upon the day calendar for Monday, he was served with this summons. He now moved to set aside the service, claiming that he was privileged from service of process, having come within jurisdiction in his character of witness. The motion was opposed on the ground that the privilege of a witness only extended to exemption from arrest; and that residents of the State only are entitled to it.

The learned Judge now stated that the non-resident voluntarily coming into the State as a witness has the same privilege as a witness compelled to attend by subpoena, and that the privilege case extends to the service of summons. He considered this ruling as in accordance with the decisions of the Supreme Court, and with the principles of general policy.

[February Special Term, 1854.]

Before Mr. JUSTICE HOFFMAN.

E. ROCHE AND JOHN ROCHE, agst. JOHN P. FARRAN.

EXAMINATION OF DEFENDANT ON BEHALF OF PLAINTIFF, TO ENABLE HIM TO FRAME HIS COMPLAINT.

There is no authority, under the Code or otherwise, to order the examination of a defendant in order to enable the plaintiff to frame his complaint.

Such practice was unknown in courts proceeding according to the course of the common law. There were cases in chancery in which such a discovery was allowed to aid in framing a declaration at law. They were to discover parties or facts.

The Code appears to pre-suppose a complaint served or prepared in every case. The facility of amendment, both as to parties and facts, renders the practice, as in chancery, unnecessary.

MOTION that the defendant be examined in behalf of the plaintiff, to enable him to frame his complaint by bringing in members of an association unknown to him.

Booth, for Plaintiffs.

for Defendant.

HOFFMAN, J.-Upon an order to show cause, the plaintiff applies for an order that the defendant to attend under the 391st section of the

N. Y. Superior Court.-E. Roche and John Roche agt. John P. Farran.

code, and be examined, in order to enable him to frame his complaint, by ascertaining, who, if any persons, are jointly interested with the defendant in the association named.

The applicant has been very careful as to the form of the proceeding, which seems free from any difficulty. He has served a notice, a subpoena, and an order to shew cause. I have examined into it, therefore, on the merits, and have concluded that the motion cannot be granted.

The point is, I believe, of novel occurrence under the code, and merits consideration. Such an application depends upon a principle o Chancery Law. It was never heard of in a court proceeding according to the system of the common law proper.

There were cases in a court of equity, in which discovery and examination of witnesses was granted, before a declaration was filed at law. It is of some importance to notice those cases, and point out their principles and extent.

Standen v. Bullock, (Tottill's Transactions, 9,) the defendant was obliged to discover to whom he had assigned his lease; because otherwise the lessor could not have his action of waste; and to state the names of the persons whom he had caused to fell trees, whereby the lessor might have his action against them, (38 Elizabeth.)

In Cary's Reports, 22, it is stated, that if a man have cause to demand land by action, and knoweth not the tenant of the land, by reason of the making of secret estates, it hath lately been used to draw them in by oath, to confess the tenant; but it is now doubted.

Marsden v. Panshall, (1 Vernon, 407,) was a case of a bill against a pawnee of plaintiffs' factor, and upon answer that some goods were pawned, but he did not know if they were the plaintiff's, an inspection was ordered, in order to enable plaintiff to bring an action.

Sir John Heathcote v. Fleet, and Morse v. Buckworth, (2 Vernon, 442, 443,) were heard together. The first bill was to discover who was the owner of a wharf and lighter, to enable the plaintiff to bring an action for damages, by reason of negligence of the lighter-man. In the latter, a ship had taken fire by the neglect of the master and crew, and the plaintiff brought a bill as one of the freightors, to discover who were the part owners, to enable him to bring his action. Demurrers in these cases were overruled.

Then came the case of Moodaley v. Morton, and The East India Company, (Dickens, 652, 1 Brown, Ch. Rep. 470.) The East India Company had granted a cowl or lease to the plaintiffs, for supplying Madras with tobacco, but had dispossessed him, and had granted a lease to another. The plaintiff sought a discovery from the a discovery from the company and their secretary, stating an intention to bring an action, but that he could not support the same without the evidence of persons residing in the East Indies, and the bill was to discover also, whether the persons who did the acts were servants of the company, as, if not, they would be liable in their own persons. It was strongly objected, that a bill would not lie until action was brought. The Master of the Rolls said “there was prima facie a cause of action, if the company has put other

N. Y. Superior Court.-E. Roche and John Roche agt. John P. Farran. persons in the way of doing plaintiff an injury. But it is said that no action is brought. In addition to the cases cited on that question, I remember one in point, that the commission may be before any action is brought. The discovery may be necessary before the declaration can be drawn, if the suit be original." He cited Mendez v. Barnard and Emmot v. Aylot.

The first case is found in Dickens, 65. Demurrer to so much of the bill as prayed a commission, it being only prayed to enable the plaintiff to go to law. Precedents were produced, and the demurrer was overruled.

Debrigge v. Howe, (cited 1 Br. C. C. 155, and Beames' Pleas in Equity, 276.) The plaintiff filed his bill for a discovery, stating that he had done service for government, and that the defendant had contracted to pay him, and praying a discovery to found an action at law. Demurrer allowed because the case would not support the action.

Rondeau v. Whyatt, (3 Br. C. C., 154,) was a bill relative to a contract for corn, and made one partner a party, seeking a discovery of various facts, and the names of the partners in the undertaking in order to found an action at law. A plea was overruled upon the question of law raised by it.

And in The Mayor, &c., of London v. Levy, (8Vesey, 404,) Lord Eldon said, "that where the bill avers that an action is brought, or where the necessary effect in law of the case stated by the bill appears to be, that the plaintiff has a right to bring an action, he has a right to a discovery to aid that action so alleged to be brought, or which he appears to have a right and an intention to bring."

Thus stood the law, while the separate jurisdiction of the Court of Chancery and courts of law prevailed in our State. When the Constitution of 1846 (Art. VI. § 3,) followed by the judiciary act of 1847,(Art. III. § 16,) abolished the former, and gave entire Chancery power to the Supreme Court, the rule of these cases would have been administered on the equity side of the Court. (Nieury v. O'Hara, 1st Barbour S. C. Rep. 489.) But the Code expressly declares, that no action to obtain discovery under oath, in aid of the prosecution or defence of another action, shall be allowed; nor shall any examination of a party be had, except in the manner prescribed by the chapter, (§ 389.) And the 390th and 391st sections provide for the examination of a party as a witness; and this examination is like that of a witness at the trial, or conditionally, (de bene esse,) or upon a commission, or under the 391st section, before the trial upon notice.

The case under this last section must be at issue, the examination being only to avoid the necessity of calling the witness at the trial; (3 Sand. 720,) and a commission can only issue when the cause is at issue; (2 R. S. 393, 2 Sand. 640.) Testimony de bene esse may be taken before an issue of any kind is formed, (7 Cowen, 489 ;) but it is upon an affidavit stating the nature of the action, and the plaintiff's demand, or the nature of the defendant's defence, and the infirmity or intended absence of the witness. There cannot be found any sanction for this application in any of these provisions.

Again, the mode of commencing an action presents a difficulty. The

N. Y. Superior Court.-Thomas Stalker and W. Newberry agt. Gaunt, and ors.

common law writ brought the party into Court to answer in the action, and also a bill then and there to be exhibited against him. A subpoena in Chancery could not be taken out unless a bill was filed, since a statute of Anne, with some few exceptions.

The 128th and 129th section of the Code appear to suppose a complaint is prepared, when the summons is served. The notice is to specify either the amount for which judgment will be taken upon failure to answer the complaint, or that the plaintiff will apply to the Court for the relief demanded in the complaint.

And under the 130th section, if the complaint is not served with the summons, the latter is to state where the former is or will be filed. In no case can an amendment be proper, under the 172d section allowing amendments of course, which changes the judgment asked for, and specified in the summons or complaint, unless a copy of the amended complaint is served. If served, the time of the defendant dates from that service. (1 Code Rep. 37.)

Nor does there seem any necessity for the examination to obtain the object in view. A plaintiff cannot be utterly unfurnished with some ground to implead the defendant. If he is the wrong party, or others are liable with him, he must set this up in his answer, and then the plaintiff may amend. After answer, he may be examined at large, and thus the disclosure be made. And so, if the defect exists, not as to parties, but as to facts, the extensive power of amendment under the 173d section, enables the plaintiff to shape his pleading according to the facts which shall in any way be disclosed. He has also the great advantage after answer, of getting this disclosure from his opponent before trial. Motion denied without costs.

[January Special Term, 1854.-February General Term, 1854.]

THOMAS STALKER and W. NEWBERRY agt. JAMES GAUNT, and others.

NOTICE TO EXAMINE DEFENDANT, TO PRODUCE BOOKS, PAPERS, &C.,

PREPARATORY TO TRIAL.

It is to be considered as the settled practice of the Superior Court, that a party may be compelled to produce books and papers at the trial, under the 390th section of the Code, by a subpoena duces tecum, served in the usual manner. Held, upon consultation with all the judges.

There is a discretion in the judge to decide as to the necessity and extent of the production and inspection called for.-(Ibid.)

The subpana should be as specific as a notice under the former practice to a party to produce documents at the trial. Cases cited as to such notice.

It appears that the rule at law in our State has been, that notice to produce a paper and a perusal of it, does not oblige the party calling for it to use it in evidence. The English rule is otherwise.

It seems that no use can be made of documents produced under a subpana by the party, unless he is examined as a witness, although inspection may not compel the party to call

him.