
    Cazneau, et al. v. Bryant, et al.
    In an action of libel, where the defendant omits to answer, if it be shown to be highly probable that difficult questions of law may arise respecting the construction of the complaint, the legal effect of the default, upon its allegations as to the meaning of the words alleged to be libellous, and respecting the admissibility of evidence in mitigation, the court may, it seems, order the plaintiff’s damages to be assessed'by a jury at a stated Trial Term of the court, instead of directing them to be assessed by a sheriff’s jury.
    But when, after a default in not answering the complaint, a plaintiff moves for an order that his damages be assessed by a jury in open court, and that motion is denied, and an order is entered that they be assessed before a sheriff’s jury, such decision is conclusive in respect to any grounds for the application then existing and then known to the moving party, unless leave he given, in the order which is made, to renew the motion on new or further affidavits. If the decision made was erroneous, it can only be reviewed and corrected on appeal.
    Such a rule does not preclude a party from moving to modify or vacate an order on facts occurring after it is made, or even on facts existing at the time, and discovered subsequently, when no laches can he imputed to the moving party.
    Such a motion should not be granted on allegations which, if true, would reflect discreditably upon the conduct of the adverse party, his counsel and the jury, when the court is satisfied upon all the affidavits that such allegations are wholly unfounded, and that there is nothing in what has transpired warranting the belief that the plaintiff will not have an impartial hearing.
    (At Special Term,
    Jan. 5, 1857.
    Before Woodruff, J.)
    The plaintiff moves for an order that her damages be assessed by a jury before a Judge of the court, at a Circuit or Trial Term, or before a special or struck jury, and that the order directing them to be assessed by a jury before the sheriff be vacated. One of the plaintiffs, being a married woman, brings this action, to recover damages for an article published of and concerning her by the defendants, and alleged to be libellous. The defendants having failed to answer, the plaintiff applied to the court for the relief demanded by the complaint. On that application she moved for an order that the damages be assessed by a jury at a stated Trial Term of the court. This application was denied, and an order made directing the damages to be assessed by a sheriff’s jury.
    The plaintiff issued a writ, directing an assessment before the sheriff, and gave notice of executing the same.
    The plaintiff now moves, upon affidavits tending to show, as she alleges, that she cannot have an impartial assessment before the sheriff’s jury, and without having first obtained leave to renew the application for an order that the writ of inquiry be executed before a Judge at a regular trial of the court, or before a special or struck jury, and that the order heretofore entered be vacated.
   Woodruff, J.

The plaintiffs move that the writ of inquiry, issued upon the default of the defendants to answer, be executed before a Judge at a Trial Term of this court, or before a special or struck jury. The considerations urged by the plaintiffs’ counsel, upon the argument of the motion, would, I think, induce me to prder the writ of inquiry to be executed at the Trial Term if the case was before me upon an original application. (2 Johns. R. 107; 3 id. 153; 13 Wend. 658; Gra. Pr. 7952.)

But it appears by the papers that the same motion was heretofore made, to one of the Justices of this court, and the order refused, because sufficient reasons were not then, in his opinion, shown for a departure from the usual practice of the court. In respect to any grounds of the application then existing and then known to the moving party, this decision is conclusive. The Justices of this court do not separately review each other’s decisions, upon motions of this description, nor entertain a second motion to the same effect as a former, unless upon leave given to renew in the order which it is, in effect, sought to rehear. If the party be not satisfied with the decision made upon the papers before the Judge, he should appeal. (Code, § 323.) If, through inadvertanee, surprise, or for other reasons, he finds that the merits have been improperly or inaccurately exhibited on the hearing, he should procure leave to renew the application upon further papers, and this should be inserted in the order, (12 Wend. 290,) and should not acquiesce in the order and take proceedings under it. If he do thus proceed under the order, bis motion in that regard will be deemed waived.

The consequence of this view of the subject is, that in regard to the alleged unsuitableness of sending an inquiry into the damage sustained by a female, by injury to her character, to a sheriff’s jury, the probability that difficult questions -of law may arise respecting the construction of the complaint, the legal effect of the default upon the allegations in the complaint as -to the meaning of the alleged libellous words, and respecting the admissibility of evidence in mitigation, and all like grounds upon which this motion is urged, I am concluded by the former decision, and however I may deem it a proper case for an assessment before a Judge. I cannot reverse the former order upon any such grounds. The plaintiff acquiesced in the order, issued the writ directing an assessment by the sheriff, and noticed the same for execution.

This, however, would not prevent a motion to modify or vacate, founded on matters arising since the former motion, or matters since then discovered, (no laches being imputable to the plaintiffs.) In the affidavits submitted, the plaintiffs’ attorney does undoubtedly state circumstances which, unexplained, might awaken suspicion that previous conversation had been held with some of the jury attending at the time appointed for the assessment, and this led the plaintiffs’ attorney to postpone the taking of the assessment and make this second application to the court. But these circumstances are not only fully explained, and most clearly exonerate the defendants, and their counsel and the jury, from any imputation of unfairness, but show that there is, in truth, no ground of suspicion. If any inference is warranted by the conversation disclosed, it is rather that there was a bias on the part of one or more of the jurors against, rather than for, the defendants. This, however, I do not think justified by what transpired.

To grant this motion, under such circumstances, would be unjustly reflecting upon the conduct of defendants, the counsel, and the jury, when I do not see, in what transpired, any thing to warrant the belief that the plaintiffs would not have had an impartial hearing.

If any irregularity shall arise, in the taking of the assessment, which works injustice, the party aggrieved will obtain relief. To anticipate this would be to place the court in a situation in which we could not, with propriety, send any case to the sheriff for assessment.

The motion must, therefore, be denied, but without costs.  