Cocke v. Kuykendall

Harris, J., delivered the opinion of the court. The plaintiffs in error sued out an attachment before the clerk of the Circuit Court of Yallobusha county, against defendant, on the 12th January, 1866, which was duly levied by the sheriff on twenty-three bales of cotton and some land, as [68] the property of the defendant, on the 18th January, 1866. On the same day of the levy the defendant replevied the cotton. Plaintiffs filed their declaration on the 30th April, 1866; and the defendant filed his plea in abatement verified by his affidavit traversing the truth of the alleged causes for which the attachment was sued out under the statute. And at the same term of said court the following verdict and judgment were rendered on said plea: “ This day came the parties by their attorneys, and thereupon came a jury of good and lawful men, &c., who being elected, tried, sworn and empannelled according to law, say: ‘ "We, the jury, find verdict for defendant, and assess his damage at the sum of $1,400.00.’ It is therefore considered by the court that the defendant have judgment against the plaintiffs for the sum of $1,400.00, damages assessed by the jury aforesaid. Also costs in this cause expended.” There was a motion for a new trial upon the ground, first, that the jury found contrary to law and evidence; and second, because the damages were excessive; which motion was overruled by the court, and the case brought to this court by writ of error. The ruling of the court on the motion for a new trial, is the error here assigned. Under our statute, Code p. 377, art. 14, the defendant in attachment, in the Circuit Court, may file a plea in abatement, verified by affidavit, traversing the truth of the alleged causes for which said attachment was sued out, and upon such plea being filed, the court, on motion of the defendant, may order a jury to be empannelled, during the term to which the attachment is returnable, as the term of the appearance of the defendant, to try and determine whether the said attachment was wrongfully sued out; and if the jury shall find that the said attachment was wrongfully sued out, they shall assess the damagesfor wrongfxdly swmg oxtt the same, &c. From the provisions of the statute, the issue to be tried and determined by this jury, is, “ Whether the said attachment was [69] wrongfully sued out,” and not whether the facts stated in the affidavit are aet/ually true or false. The verdict of the jury in this case is at least very informal, and unsatisfactory, and it is by no means clear that they understood the issue they were sworn to try. It is very probable that they regarded it as their duty to find, under their oaths, whether the facts stated in. the affidavit of plaintiff were really true or false. At all events, one thing is most manifest, that if they intended to say that the attachment was wrongfully sued out, in view of all the testimony in this record, their verdict was not only without evidence to sustain it, but against the direct evidence of the plaintiff, mrtaally admitted to be true by the defendant himself. The affidavit was founded upon facts, fully justifying it, derived from the defendant. That they were untrue, does not affect the conduct of plaintiff, even if the jury believed them untrue; the attachment was not wrongfully sued out by the plaintiff' when resting upon the statements of the defendant himself. It does not lie in his mouth to say that his statements made to the plaintiff, and upon the truth of which plaintiff relied, and had a right to rely, were all false, and therefore plaintiff’s attachment was wrongfully sued out. The wrongful act was the defendant’s falsehood, and he has no right to avail himself of his own wrong and to visit its consequences upon the plaintiff. Let the judgment be reversed, cause remanded, and a venire de novo awarded.