Irish v. Wright

Bullard, J. This is an action against John T. Wright, master of the steam-ship New York, to recover of him damages for having knowingly aided and abetted one Alsbury, the plaintiff’s debtor, in conveying a large number of slaves belonging to the latter, from the mouth of the Mississippi to Texas, with the design to evade and defeat legal process, whereby the plaintiff lost his debt amounting to $13,330. There was a verdict against Wright for that amount, and in favor of his co-defendants, part owners of the ship; and from a judgment rendered thereon, after an ineffectual effort to obtain a new trial, the defendant Wright apealed. The facts are clearly made out. It is shown, that in pursuance [432] of a previous arrangement between an agent of Alsbury and Wright, which was care/nlty concealed by the latter, and with a full knowledge of the rights of the plaintiff, and against the earnest remonstrances of his agent, the slaves were taken by Wright and towed in a small vessel to Galveston, thus preventing the levying of an attachment which had issued from the Court of the First Judicial District, addressed to the sheriff of the parish of Plaquemines, which extends to the mouth of the Mississippi. It is not necessary to enter into any detail of the facts. It is sufficient to say, that, in our opinion, the jury was fully justified in concluding, that without the unjustifiable and fraudulent conduct of Wright, the plaintiff would have succeeded in levying his attachment and saving his debt. The counsel for the appellant, asks the reversal of the judgment on various grounds, which we proceed to notice. I. It is contended, that the attachment sued out by the present plaintiff against Alsbury, issued improvidently, because the affidavit did not set forth that the debt was really due by Alsbury, the Code of Practice requiring that the .time of payment shall have arrived. Art. 242. The affidavit annexed to the petition, upon which the attachment was issued, is positive and explicit, that the defendant Als-bury is indebted in the sum for which judgment is claimed. The affidavit appears to us sufficient under article 243 of the Code of Practice, which only requires a declaration on oath of the amount due, more especially as by an amendment of the code, by an act of the 7th April, 1836, an attachment may issue where the debt is not due, when the existence of the debt is shown by affidavit. II. It is contended, that the attachment in the present case against Wright was irregular, inasmuch as it is a suit for damages. We are of opinion that this objection comes too late. The case was at issue on the merits, and the property attached bonded. III. It is further contended, that the day on which the slaves were taken in tow by the defendant’s steam-ship was Christmas, and not a judicial day ; that no process could have been legally served on that day ; and, consequently, that no such right was defeated. Article 207 of the Code of Practice, provides, that no [433] citation can issue, no demand be made, no proceeding had, nor suit instituted on Sundays, on the fourth of July, and the eighth of January, of any year. The 25th of December is not mentioned among the days on which no civil process can be served. The interest of Alsbury in the slaves thus conveyed away and landed in a foreign country, and the question whether that interest was equal in value to the debt due to the plaintiff, and, consequently, whether the plaintiff has actually sustained damage to the amount for which the verdict was rendered, were matters left td the jury, under the instruction of the court. The evidence does not enable us to say that they erred in their finding. If any recovery should hereafter be had in Texas, of which the record furnishes but slender hope, it may in equity be made available to the appellant; but it is no argument, coming from him, that there is a possibility that the plaintiff may yet succeed in making his money out of the slaves thus carried away, by a fraudulent combination between the debtor and the appellant. There is nothing in the case to satisfy us, that the verdict was either capricious or excessive. The court, in our opinion, did not err in refusing a new trial. IV. The fourth ground upon which a new trial was asked, is, that the verdict was not rendered with the assent and concurrence of all the members of the jury, but by an abandonment and surrender of opinion on the part of one or more of the jurors, under a mistake and an erroneous impression as to the effect and operation of such verdict, which conduct was improper and illegal, on the part of such juror or jurors; so that impartial justice has not been done in the case. To support this ground, one of the counsel for the defendants made affidavit, that one of the jurors voluntarily stated to him, that he did not concur with the other jurors in the opinion, that the verdict was just and correct; that, as he then declared to his fellow jurors, he consented to return such a verdict, because otherwise the jury would not have come to any agreement, and under the belief and idea that such verdict would not prejudice the defendant Wright, but that the case could and would be reserved for another court on appeal, and relief extended to Wright, with [434] out prejudice to him, and that if he had not entertained such belief, he would not have assented to the verdict This is a very lame excuse for assenting to a verdict, and cannot be noticed by us as furnishing any serious ground for a new trial. The juror seems to have forgotten, that he had sworn to give his verdict according to law and evidence. He cannot now be listened to when he gives a reason for his concurrence in the verdict, which is inconsistent with his oath as ajnror. Another ground upon which the new trial was asked, was, that the court refused to charge the jury as requested by the defendants’ counsel. The charge which was given, and that which was refused, appear by a bill of exceptions in the record. The defendants asked the judge to charge the jury, that if the plaintiff’s agent was not deceived by any representations of Wright, or if he obtained the desired information from other sources, so that he sustained no injury by the aforesaid misrepresentations, then the jury cannot give damages against Wright; but the judge charged, that if the jury found that Wright had combined with Alsbury, or his agent, in removing from the reach of the plaintiff the property upon which he was endeavoring to enforce his claim, and that, while Wright was thus combining, he deceived the plaintiff as to the fact that Alsbury’s property and slaves were to be taken away by him, and, by his assurances that they were not, lulled the plaintiff into security, and thereby, prevented him from recurring sooner than he did to legal means for the 'enforcement of his rights, then the jury onght to find damages against Wright. We are of opinion, that the court did not err in this charge to the jury. The view of the question pressed upon the judge by the defendants’ counsel was much too narrow, and would have been calculated to mislead the jury. ■ Upon the whole, we conclude, that the case was fairly tried, and that nothing has been shown to justify our disturbing the verdict. Judgment affirmed.