Howland against Willetts, 9 N.Y. 170

Mason, J. The bill of exceptions in this case is so imperfectly drawn that it is very difficult to determine with any degree of certainty the precise bearing of the two first exceptions upon the case. As the question is -presented by the bill, it is not important to rnquire whether the court was right or wrong m'holding that the witness Smith might look at the paper he held, in his hand, for the 'reason that it does not appear that he testified from such - paper, nor -that he gave any material evidence m the case, nor m fact that he gave the least particle of evidence after this objection was raised.

The principal exception presented by the bill is to the ruling of the court in excluding the witness Dwight on the ground of interest. The question here is, whether under the circumstances this action can be said to be defended for the immediate benefit of Dwight. The 398th

section of the Code provides that no person offered as a witness shall be excluded by reason of his interest in the event of the action; and § 399 provides that the preceding

section shall not apply to a party to the action, nor to any person for whose immediate benefit it is prosecuted or defended, &c. These sections are taken substantially from the 6 and 7 Victoria, commonly called Lord Denman's Act. The courts in England have given the same construction to that act which our courts have to these sections of our Code. (6 Adol. & Ell., N. S., 937; 3 Man., Gr. & Scott, 299; 3 Comst., 489; 11 Barb., 645; 2 Sandf. S. C.

R., 686.) The general scope of the act is to allow the examination of all persons as witnesses except the party for whose immediate benefit the action is prosecuted oír defended. The act does not allow the formal party to the record to be called, nor any person who, though not the formal party, yet is substantially so. Dwight, the witness, is not a formal party to this action, yet he is substantially the party defendant. The defendant as sheriff is certainly not defending this suit for his own benefit, either directly or indirectly.

He loses nothing if the plaintiff recovers and holds this property; and if the defendant succeeds and holds it by virtue of his levy, it is not for his own benefit, but for that of Dwight, the party for whom he acts. In. this case, indeed, the defence is made under an express indemnity from Dwight. It is therefore for every substantial purpose his action.

The defendant, as sheriff, has such a special property by virtue of his levy as will enable him to maintain trespass or trover against a stranger who wrongfully interferes with the property. (2 Saunders, 47, note I; 6 Mod., 298; 2 Hall, 425; 1 Cow., 322; 11 John., 529; 6 John., 195; 12 John., 403; 14 John., 352; 1 Caines’ R., 14; 20 Wend., 4; 16 Wend., 568.) All the cases hold that the action by the officer, in virtue of his levy, goes upon a special property acquired and liability over to the plaintiff for the amount of the levy. (Watson’s Office of Sheriff, 190, 191, and cases cited; 16 Wend., 586, and cases above; 3 Barb., 499.) I know it was held in the case of Barker v.

Mathews (1 Denio, 335), that a plaintiff in a judgment, who has procured an execution to be issued and levied upon personal property of the defendant, cannot sustain an action against a wrongdoer for taking such property out of the possession of the officer. There are no authorities referred to by the court to sustain this decision, and I think its soundness may well be questioned upon principle, as it certainly can upon authority. (8 Bac. Ab., Bouv. ed., 581, tit.

Rescue, A, and cases cited; 3 Barb., 523.) All the cases hold, however, that the sheriff acts for and in behalf of the plaintiff in the execution,, and that the plaintiff is the substantial party, the one immediately and directly interested in the levy and the property or money acquired by virtue thereof. Dwight, therefore, being the party for whose immediate benefit this action is defended, was not a competent witness for the defendant, and the court was right in excluding his testimony.

The exception to the charge cannot avail the defendant, as it was a general exception, and some of the propositions in the charge were unquestionably right. (8 Wend., 109.) The only remaining question presented by the bill of exceptions is whether the court below erred in allowing the jury, when they retired to deliberate upon their verdict, to take with them to their room the deposition of H. W. Scott. " The question has often arisen on motions to set aside the verdict, when the jury, without the knowledge or consent of the court, have taken papers with them on retiring to their room.

The rule seems to be very well settled that the jury may not carry with them any writings which were not given in evidence (Trials per pais, 357 ; 11 Petersd., 744), unless it be exemplifications or deeds under, seal (Gilb. Ev., A.

D. 1756, 17-19); and yet it is held that if they are not read by any of the jury it is.no cause for setting aside their verdict. (3 John., 252; 17 John., 323; 7 Pick., 306.) It is said in books of very high authority.that if the jurors, when they go from the bar to consider of their verdict, without the leave of the court take with them any testimony which has been given in .evidence, they are guilty of a misdemeánor, but that the verdict is good. (Roll. Ab., 714 ; 1 Inst., 227 ; Cro. Eliz., 411; 12 Mod., 520 ; Rex v. Burdett, 1 Ld. Raym., 148; 10 Bac. Ab., Bouv. ed., 3.16, tit.

Verdict, H.) Judge Cower, in some obiter remarks in the case of The Farmers and Manufacturers’ Bank v. Whinfield (24 Wend., 428), seems to think the rule is otherwise both in England and in this state. I have examined with some care the reports of Westminster Hall, as well as of this state, and have not been able to find a case where the courts have set aside a verdict when the jury have by direction of the court been permitted to take to their room a paper which had been given in evidence in the cause.

The applications to the courts in these cases have been by way of motion to set aside the verdict for misconduct of the jury in taking papers with them to their room without the direction or leave of the court; and Mr. Graham, in his treatise-on New Trials, thinks it should be left to the sound discretion of the judge upon the trial (p. 80). I do not think there was error in allowing this deposition to be taken by the jury, and am of opinion, therefore, that the judgment should be affirmed. Ruggles, Ch. J., and Willard, Morse and Taggart, Js., concurred in the above conclusions.

GUediner and Johnson, Js., dissented; holding that Dwight was a competent witness. Denio, J., did not hear the argument. Judgment affirmed.