Peck v. Corning ( 1846 )

Jewett, Justice.

It was not denied but that the court may, in a proper case, direct that a writ of inquiry be executed at the circuit. The grounds which have induced courts to grant such indulgence are, where some difficult questions of law are likely to arise in the inquiry, or when the facts are important (Graham's Pr. 795; 2 John. Rep. 107; 13 Wend. 658; 1 Halsted's Rep. 330). It is not pretended in this case that any such question of law is likely to arise; but it is claimed that the application is brought within the other branch of the rule: that the facts in the case are important. It is shown that both parties have a high standing in the estimation of their fellow-citizens; the plaintiff a resident of an adjoining state; the defendant a resident of the city of Troy, in the county of Rensselaer, where the venue in the cause is laid, the action being local; that «the plaintiff, at the time the injury was inflicted, was a traveler with his wife, with other ladies in company; that they had rested the night previous at a hotel, in Troy, and were passing from the hotel to a morning train of cars for Saratoga Springs, when the defendant, having deliberately prepared himself with a whip, and without any intimation given to the plaintiff of such intention, in the presence of his wife and other ladies under his charge, without any provocation, and in view of many citizens in a public street in that city, and with the purpose, not only of inflicting great personal injury, but the deepest disgrace and insult within his power, attacked and struck the plaintiff with a whip several violent blows, he being entirely destitute of any *means of defence. The power which this court is called upon.to exercise is discretionary; every case must more or less rest upon circumstances peculiar to itself. Taking into consideration the time when and place where the outrage complained of was committed, the peculiar and aggravating circumstances attending it, I am of opinion that although no difficult questions of law are expected to arise, jet that the facts in the case are of sufficient importance to render it a discreet exercise of power to send the writ of inquiry in in this case to the circuit to be executed.

Buie accordingly.