31 N.J.L. 52 | N.J. | 1864
The opinion of the court was delivered by
An attachment having issued out of this court on the 29th of June, 1861, at the suit of plaintiff against one Matthias Brakely, a debt or sum of two thousand dollars was attached as due to him by the present defendant, John Fulmer. Final judgment having been obtained against Brakely April 3d, 1862, for a sum exceeding this amount, a scire facias was issued against Fulmer, pursuant to the statute. Fulmer having appeared and pleaded that he was not indebted to Brakely, issue was thereon joined, and upon the trial a verdict was rendered for the defendant that he was not indebted to Brakely. A rule to show cause why the verdict should not be set aside and a new trial ordered, having been allowed, two reasons for making it absolute have been relied on.
First. It was insisted that the judge erred in admitting the defendant to produce evidence that in point of fact he was not indebted to Brakely at the time the attachment was issued. The argument urged was, that the defendant, by his own admissions and declarations to the officers of the bank, and on the faith of which the writ of attachment was sued out, was estopped from denying his indebtedness to be what he had stated.
It is a sufficient answer to this that the evidence in regard to the admissions was conflicting, and was not of such a char
But I am clearly of opinion that if those questions had been submitted to the jury they were fully warranted by the evidence in returning the verdict they did, if they were satisfied, as upon this inquiry we must assume, that after duly considering all the evidence, including the admissions, the defendant was not in fact indebted to Brakely when the attachment was issued. We have not been asked to interfere with the verdict on the ground that in this respect it was against the weight of the evidence.
The admissions relied on were that Fulmer, who had large transactions with Brakely and was connected with him in dealing with the bank, in various conversations which he had on the subject of said transactions, and dealing with the cashier and individual directors previous to the issuing of' the attachment and “ up to a very short time before it was issued,” told him he was indebted to Brakely to an amount sufficient to pay at least all Brakely owed the bank, with the amount and circumstances of which he was well acquainted. The cashier also stated that in consequence of these admissions he was induced to have the writ issued; but it did not appear that the intention to do it was communicated to Fulmer, or that when he made the admission he had any
To constitute an estoppel in pais there must be an admission intended to influence, or of such a nature as will naturally influence the conduct of another and so change his condition as materially to injure him, if the party making it is allowed to retract it. And the estoppel must not be carried beyond the limits of the injury, so as instead of preventing a fraud, the enforcement of it will produce a greater injury than it was intended to prevent. Den v. Baldwin, 1 Zab. 403; Pickard v. Sears, 6 Ad. & El. 469 ; Gregg v. Wells, 10 Ad. & El. 90; Dazell v. Odell, 3 Hill 219; Dewey v. Bordwell, 9 Wend. 65; Preston v. Mason, 25 Conn. R. 118; Taylor v. Ely, Ib. 251; Johns v. Church, 12 Pick. 307; Bursley v. Hamilton, 15 Pick. 42; Deweys v. Field, 4 Metc. 384.
The cases relied upon by the plaintiff’s counsel do not carry the doctrine of estoppel to the length now insisted on.
In the case before us, it was not alleged that the bank or its officers had acted upon the admissions in giving credit to Brakely, or so as in any way to change their securities or to affect any rights of action to which resort might be necessary. The sole injury complained of was the liability to costs in consequence of the verdict. If the estoppel could be so used as merely to charge the defendant with costs, or if it was sought to be applied merely to prevent the plaintiff from being turned round to another form of action, it would be a legitimate use of it; but so to apply it as to charge the defendant with the payment of a large sum of money he does not owe, which, if the principle is correct, might as well be twenty
The other ground relied on for setting aside the verdict and allowing a new trial was, that the defendant and his two sons, who were his main witnesses, and who took up their quarters in different houses of entertainment frequented by the jury, improperly interfered with several of the jurors during the progress of the trial. Considering the great importance of jealously guarding the jury against improper influences, and the reason there is to fear that the practice of endeavoring thus to procure a favorable verdict is becoming more and more prevalent and dangerous, I am of opinion that enough suspicion has been thrown on the conduct of the defendant and his sons to make it our duty to interfere and to afford the plaintiff, if it is desired, the opportunity to submit the matter in dispute to another jury. It does not distinctly appear that there were private conversations with jurors on the subject of the cause; but it does appear that unusual civilities and attentions Avere paid to several of them, and they were treated more than once, and that this was done in such a manner and under such circumstances as to render it in the highest degree probable that it was not done inadvertently and only
In my opinion there should be a new trial, the costs to abide the event.
New trial granted.
Cited in Campbell v. Nichols et al., 4 Vroom 88; State, Newark, pros., v. Sayre, 12 Vroom 160; Carpenter v. Easton and Amboy R. R. Co., 9 C. E. Gr. 259.
Hesketh v. Braddock.