
    WILLIAM M. NEWMAN, Respondent, v. GEORGE H. GODDARD, Appellant.
    
      Personal injuries committed out of this State—jurisdiction of court as to — Incompetent evidence— what must he shown to cure the admission of.
    
    This court has jurisdiction of personal injuries committed in another State, when hoth or either of the parties are citizens of the United States.
    
      Be Witt v. Buchanan (54 Barb., 31) followed.
    On the 14th of Hay, 1861, at the city of Camden, Arkansas, the defendant, as a member of a vigilance committee, entered the store of the plaintiff, and ejected him therefrom, and seized and removed his goods. Upon the trial of this action, brought to recover:,damages for the injuries sustained thereby, evidence was admitted, under the objection and exception of the defendant, of threats of personal injury to the plaintiff, made by the defendant after the occurrence of the transaction in question. Held, that this was error.
    Evidence was also admitted to show that the goods taken increased in value from one to two hundred per cent before the close of the war. The judge, in his charge, instructed the jury not to take this evidence into consideration in determining the amount of damages sustained by the plaintiff. Held, that the admission of the evidence was error, and that the error in receiving it was not cured by the charge, as it could not be said that the minds of the jury were not affected by it in arriving at their verdict.
    Appeal from a judgment, entered on the verdict of a jury, in favor of the plaintiff, and from an order denying a motion for a new trial.
    
      James O. Garter, for the appellant.
    
      Joseph Laroopue, for the respondent.
   Lawkenoe, J.:

The plaintiff alleges that the defendant, with others acting as a vigilance committee, in the city of Camden, in Arkansas, on the 14th day of May, 1861, with force of arms, entered the store of the plaintiff and ejected him therefrom, and seized and carried away the stock of goods in the store, with all the books, papers and private effects of the plaintiff, and converted and disposed of the same to their own use, and thereby broke up and destroyed the plaintiff’s business ; and damages are claimed for the injury resulting to the plaintiff.

On the trial, it was contended by the counsel for the defendant:

First. That this court has no jurisdiction, so far as the action is to be regarded as brought to recover for the personal injuries sustained by the plaintiff; and,

Secondly. That the defendant having been subsequently discharged as a bankrupt, under the bankrupt law of the United States, such discharge'is a bar to this action.

As I have come to the conclusion that a new trial must be granted upon two of the objections and exceptions taken by the defendant’s counsel, it will be unnecessary to consider the effect of the discharge in bankruptcy; and, as to the question of jurisdiction, the case of De Witt v. Buchanan seems to be conclusive. In that ease Justice James denies the doctrine laid down by Chief Justice Daly, in Molony v. Dows, and says: It is now settled that the courts of this State will entertain jurisdiction of actions for personal injuries committed abroad, when both or either of the parties are citizens of the United States.”

Upon the trial the plaintiff was allowed to testify, under the objection and exception of the defendant’s counsel, to threats made by the defendant of personal injury or violence to the plaintiff, after the ejection of the plaintiff from his store, and after the seizure and conversion of the plaintiff’s goods.

He was also permitted to testify, under like objection and exception, that the goods taken from his store, before the close of the war, enhanced in value from one to two hundred per cent in gold.

The justice before whom the cause was tried, in his charge to the jury, upon the request of the defendant’s counsel, directed the jury not to take any of this evidence into consideration in fixing the amount of damages sustained by the plaintiff. I think that the evidence was incompetent, and that the subsequent direction to the jury to disregard it, does not cure the error in first receiving it. The threats, made by the defendant after the trespass and wrongful acts averred in the complaint had occurred, were not a part of the res gestee, but threats to commit separate and independent torts. They constituted no part of the cause of action stated in the complaint, and, as they were made after that cause of action had arisen, I do not see how such threats tended to show the animus of the defendant toward the plaintiff, in committing the acts referred to in the complaint.

The evidence as to the rise in the value of the goods, seems to me to have been equally irrelevant and incompetent. It was assumed that the plaintiff would have remained in Camden throughout the war, and that he would have continued to be the owner of the goods until the great increase in the value had taken place.

The rule which should govern in this case, is well stated by Judge Grover, in Erben v. Lorillard. There the justice, in charging the jury, directed them to disregard certain evidence which he had admitted. Judge Grover says: “ The plaintiff’s counsel insists that this (if error) was cured by the charge. When illegal evidence, properly excepted to, has been received during a trial, it must be shown that the verdict was not affected by it, or the judgment will be reversed. If the evidence may have affected the verdict, the error cannot be disregarded. The rights of parties can only be preserved by adhering to this rule. It would be in vain to observe the rules prescribed by law to secure an impartial jury, if their minds are to be subjected to the influence of illegal evidence after they are impaneled. It does not follow that impressions thus obtained will have no effect, although the judge directs them to disregard the evidence.”

In this case it cannot be said that it appears that the evidence objected to did not affect the minds of the jury in arriving at their verdict. On the contrary, I think that it is quite apparent that the evidence may have affected, and did affect, their minds in reaching a conclusion. The case is one which, in its nature, appeals very strongly to the sympathies and passions, and the evidence was calculated to inflame and excite the sympathies of the jury. The verdict rendered was large in amount, and, as the evidence may have enhanced the verdict, I do not think that we can disregard the error.

The judgment should be reversed and anew trial ordered, with costs to abide the event.

Davis, P. J., and Daniels, J., concurred.

Judgment reversed and new trial ordered, with costs to abide event. 
      
      54 Barb., 81.
     
      
      8 Abb., 316.
     
      
      19 N. Y., 302, 303.
     
      
       See also Travel v. Eighth Ave. R. R. Co., 3 Keyes, 499.
     