Opinion
July Term, 1817.
The affidavit of a juror is not admissible to show that the assessment of damages was made by calculating the value of the articles at the port of delivery, when, under the charge of the court, it should have been the value at the port of reception. (See Norris v. State, 3 Hum., 337, where the cases on the subject are reviewed.)
In an action against a carrier, the true rule for the assessment of damages is the value of the goods at the port of reception, unless, for some fault, neglect, or misconduct in the carrier, justice should require the application of a different rule. (See Dean v. Vaccaro, 2 Head, 488, 492, where this case is cited.)
It is a good ground for coming into equity to have a claim ascertained and set off against a judgment at law, that the judgment creditor has removed from the State, leaving nothing out of which satisfaction can be procured. (Acc. Brazelton v. Brooks, 2 Head, 194; Smith v. Ross, 3 Hum., 220; Hough v. Chaffin, 4 Sn., 238.)
[Cited in: 3 Heis., 588; 1 Tenn. Chy., 220; 2 Tenn. Chy., 479; 7 Pickle, 344.]
ROANE, WHYTE, HAYWOOD, JUDGES.
The defendants sued the complainant at law and recovered judgment for $357.60 for freight of certain casks of rum brought from New Orleans to Clarksville, whereupon the complainant filed this bill in equity complaining that he put on board their boat at Orleans divers casks of rum, and that after great delay they arrived at Clarksville, when 176 gallons of the rum were missing, and were not delivered by them to the complainant, for which they ought to account, but had given no credit for in their verdict and judgment against him for the freight. He now claims it, and claimed it on the trial at law, and pleaded a plea for its admission, but the Court disallowed it. He states, further, that the defendants are not in this State, but have withdrawn from it, and have no property in this State, nor any debts due to them. The answer admits the loss of the rum, and attributes it to the insufficiency of the casks, and to their not being painted. He states that the delay in the voyage was caused by sickness and desertion of the crew. This court ordered a trial whether the defendant had complied with the contract, and, if not, what damages they ought to pay under a consideration of all the circumstances. A verdict was given August, 1815, for $357.60. And in July, 1816, one of the jurors made an affidavit in this court starting that the assessment of damages was made by calculating the value of the rum at Clarksville, and not at Orleans, the port of reception. And now many questions have been made and argued at the bar.
The first question is, as to the proceedings to set aside the verdict in such a case. Ought it to be set aside by the Circuit Court; or ought there to be a bill of exceptions exhibiting the misdirections of that court, and that brought into this court to be acted upon? Answer: The report of the judge of the Circuit Court, where the jury do not misconduct themselves, ought to accompany the verdict into this court; if there be any matter occurring in the Circuit Court which raises a suspicion in his mind that the verdict ought not to stand, for any gross misbehavior of the jury, the Court should set aside the verdict. That course is not taken in the present instance, but ought to be observed in future. This court will now look into the record, and if, upon that, it can be perceived upon what principles the assessment was made, and that these were not the correct ones, will rectify the mistake. We can not go upon the ground of the juryman's affidavit. The law wisely rejects the affidavits of jurors, to avoid the danger of tampering with them after the verdict is pronounced; 1 Term, 11. and other subsequent cases. The clerk and master will ascertain the fact, to our satisfaction, if it become needful to inquire into it.
Another question made is, as to the jurisdiction of this court. It is said if it be legal to set off this demand, it might have been done at law; if illegal, it ought not to be done here. Answer: Such is the situation of the defendants, that if they get their execution satisfied, the complainant very probably will never get satisfaction of them because of their removal, and being withdrawn from this State leaving nothing here out of which he can procure satisfaction. This court will interfere to prevent mischief, and the injustice which would otherwise happen. The Court proceeds upon the same principles as a court of law proceeds when it directs one judgment at law to be set off against another. Not because it is ordered by the act for allowing set-offs, but because it is natural equity that a defalcation shall be made in such case.
Another question is as to the proof. It is said this verdict might have been found on proof of conversion of the rum to the use of the defendants of their crew, or other unlawful disposition thereof. Answer: We concur with what is said by the defendant's counsel; proof beyond the allegations of the plaintiff's bill is not admissible, and, if given, was illegal. Such facts, if charged and proved, might have subjected the defendants to a different rule for the assessment of damages. 2 Burr. 882, 1172; 2 Gould's Esp. 300; 3 Caines, 219; 2 Hay. 333; 4 Mass. 115. Here they are not charged, and it is to be presumed were not proved upon the assessment of damages.
Another question is, By what rule are the damages to be assessed? We are of opinion that the true rule is in the books and cases just cited, namely, the value of the goods at the port of reception, unless, for some fault or neglect, or misconduct in the carrier, justice should require the application of a different one. The case stated by the complainant's counsel, of a conversion to the use off the carrier, after arriving at the port of delivery, would form an exception, and so would other cases colored with an equal and deeper tinge of culpability.
Let the master ascertain and report to this court tomorrow morning the amount of the 176 gallons of rum, calculated at the Orleans and also at the Clarksville value, and deduct the former from the latter. And as to the balance, when ascertained, let the injunction be perpetuated, and dissolved as to any surplus above it. And let the defendant pay the costs of this suit.
If after the correction of this verdict as aforesaid, and allowing for the freight recovered by the defendants, there shall remain a balance of the damages assessed to be paid to the complainant, let there be a decree for the payment thereof to him in three months from this day, with the same directions concerning costs as are above stated.