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Bell agt. Mali, Jewett and Stacy, &c.

In relation to the amount of the bail to be given, it should be shown what the plaintiff paid for the stock bought after the alleged false representation was made to him; that would have some influence on the amount of bail, and even on the amount of the recovery. If the lawful issue could be only of 30,000 shares of $100 each, and the over-issues were 28,000 shares, then each share, if there had been no over-issue, would sell for $100, but by the over-issue would sell for about $70; so the plaintiff might expect it would rise to 3-7 more than the market price, and be induced to buy accordingly. All that he lost, or failed to gain, by the misrepresentation, would be 3-7 of the market price; the rest of the fall was from depreciation from other causes. If (as Mali states his belief) the plaintiff bought when the stock was selling for ten per cent. of its par value or less, the plaintiff's loss on 450 shares, so far as it was occasioned by the false statements as to over-issues, could not have exceeded 3-7 of $4,500, (the purchase money,) or less than $2,000, and the bail, if required, should be reduced accordingly.

In the defendants' affidavits, Jewett shows that he overdrew his stock account, and seems to suppose he had an excuse for it, because the company owed him money, and he held the stock as collateral. This would avail him but little, if the other grounds of the action were well sustained. He, however, denies all false representation. Mali also denies all false representation or intention to deceive, and states that he left the certificates of stock, in blank, with the secretary, and that this was usual in this city, and that he did not know of the overissues, and has received none of the avails of that transaction.

As the defendants' affidavits are received on motions of this kind, and the plaintiff does not state any representation which Mali made, that could be a cause of arrest, and does not state any made by Jewett, the weight of the evidence is in favor of these two defendants.

It would be different with Jewett, as he received so much of the stock and its avails, if it could be inferred that Stacy was acting with or for him: that may be inferred as matter of fact,

Bell agt. Mali, Jewett and Stacy, &c.

as Stacy would hardly overdraw, or allow Jewett to overdraw, so largely, if there were not a concert and conspiracy between them.

Another objection to many of the statements in the plaintiff's affidavits is, that they are on information and belief only, and how the information was derived, and why the person communicating it did not make the affidavit, and what he said, is not stated.

Gaillard's affidavit charges misrepresentations in general terms, which can be of no avail on such a motion. It, however, proceeds to particularize representations made by Mali, and by Stacy; that Mali said the stock had fallen so much on account of stock-jobbing operations; and being asked what it would be worth if the company should be forced into liquidation, said he could not tell, but he had no doubt the stockholders would even then realize 30 per cent.; and when the stock had declined to 12 or 13 per cent., Mali assured the plaintiff, who was inquiring for a friend, that the stock was good, and advised him not to sell at such a sacrifice. The statements of Stacy like those in Bell's affidavit.

are very

The affidavits of Mali and Jewett, in this case, are similar to theirs in Bell's.

There is the same objection to the plaintiff's affidavit in this case, that it is mostly on information and belief; that it does not show that Mali did not believe his statements to be correct, or that at the time spoken of they were not correct; and if another allegation of the plaintiff be true, that the stock was worth par but for the over-issues, then the over-issues being to such an amount as reduced the value of the stock only about 3-10, his statements were true, and the stock was worth over 30 per cent. to the stockholders, and it would have been a sacrifice to sell it at 13 per cent.

It may be natural to those who suffer by these wrongs of certain individuals, to attribute the whole loss on their speculations to those wrongs; but it is the business of courts to scrutinize the facts, and endeavor to discover how far the loss is attributable to that cause. The stock of all companies about

Green agt. Telfair.

to be engaged in mining operations must have only a fancy value, and their real value cannot be ascertained until the experience of several years at least after they have been in actual operation, and bringing their produce to market. The market value must be assumed to be the real value, when no more certain test is shown, and that in this case was only 30 per cent, at the highest time alluded to. The plaintiff's loss by any represen

tation should be estimated on such a valuation.

As the complaints in both actions are defective, and the affidavits imperfect, both Jewett and Mali should be discharged from the arrest, with $10 costs of motion in each case, unless the plaintiffs in each case elects in five days to pay those costs and to amend his complaint so as to conform to the views here stated, and to put in affidavits supplying the defects here pointed out, and then serves his new affidavits and amended complaint in fifteen days thereafter. The defendants to have the right to answer such new affidavits, and to renew the motion for their discharge without serving any papers not already served.

SUPREME COURT.

EDWIN P. GREEN agt. WILLIAM TELFAIR.

A judge has no right to threaten or intimidate a jury, who are unable to agree upon a verdict, in order to affect their deliberations. Nor should he allude to his own purposes as to the length of time they are to be kept together. There should be nothing in his intercourse with the jury, having the least appearance of duress or coercion.

A jury, while all proper motives to induce them to agree upon a common result, may be repeatedly and earnestly urged upon them, should be left to feel that they act with entire freedom in their deliberations. That, should they continue to disagree, they are not to be exposed to unreasonable inconvenience; nor to receive the animadversion of the court.

A judge may keep the jury together as long as, in his judgment, there is any reasonable prospect of their being able to agree, but beyond this he is not at liberty to go.

Green agt. Telfair.

Greene Special Term, Nov., 1853.

MOTION to set aside verdict, &c.

THE action was for libel and slander. It was tried at the Greene circuit in November, 1852. The trial was concluded, and the cause submitted to the jury between two and three o'clock on Saturday afternoon. It was the last cause tried at the circuit. The jury, after having been absent several hours, returned into court, and stated that they were unable to agree upon a verdict, and asked to be discharged. The judge who presided at the circuit, according to the affidavits of the plaintiff's counsel and two of the jurors, which were read upon the motion, stated to the jury that it was very important that they should agree upon a verdict. That the case had excited considerable feeling, which would be increased if they should separate without agreeing; that the very nature of a jury trial implied concession and compromise; that no one juror should control the result, or otherwise the verdict would be the verdict of one man, and not of the twelve; that both parties had taken exceptions to decisions made during the progress of the trial, and it was necessary, before these decisions could be reviewed, that there should be a verdict of some kind; that for five years he had discharged but one jury because they were unable to agree; and he should send the jury out again, and hoped they would agree.

One of the jurors remarked, that he supposed their duties would be at an end, and that they would be discharged at twelve o'clock that night; to which the judge replied, that this was not so; that he was authorized to receive their verdict on Sunday: and besides, that it was his intention to go to Albany by the next train of cars; and if they should not agree before he left, that he would return on Monday and receive their verdict.

Affidavits of two other jurors, and one of the attorneys for the defendant, were read in opposition to the motion; but they did not materially vary the facts above stated.

The jury, after they retired the second time, remained absent

Green agt. Telfair.

about half an hour, when they again returned into court, and rendered a verdict of six cents for the plaintiff.

The plaintiff moved to set aside this verdict, on the ground of what transpired when the jury came into court, and reported their inability to agree.

LYMAN TREMAIN, for plaintiff.

HENRY HOGEBOOM, for defendant.

HARRIS, Justice. It is both proper and commendable, that a judge, after the labor and expense of a trial, should endeavor, by all legitimate means, to secure a verdict. To this end he may properly urge the jury to engage in their deliberations in a spirit of liberal concession. He may properly explain to them the theory of the trial by jury; that its object is to give to the parties the united judgment of twelve minds, upon the questions at issue between them. He may properly invite their attention to the importance, both to the parties and the public, of their agreeing upon a verdict; that thus the time and expense of a re-trial may be saved. These, and other kindred considerations may, and frequently ought to be urged upon the consideration of the jury, to induce them to make an honest and faithful effort to bring their minds together, and thus agree upon a verdict.

A judge may also keep the jury together as long as, in his judgment, there is any reasonable prospect of their being able to agree; but beyond this, I do not think he is at liberty to go. An attempt to influence the jury, by referring to the time they are to be kept together, or the inconvenience to which they are to be subjected, in case they shall be so pertinacious as to adhere to their individual opinions, and thus continue to disagree, cannot be justified. A judge has no right to threaten or intimidate a jury, in order to affect their deliberations. I think he has no right even to allude to his own purposes as to the length of time they are to be kept together. There should be nothing in his intercourse with the jury having the least appearance of duress or coercion. The jury, while all proper motives to in

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