
    Green v. Hill.
    wiioro the plaintiff sued out an original attachment, but did not pray for nor sue out citation for personal service upon tho defendant, tho court having quashed the attachment on motion, tho defendant, who liad come in without service and filed an answer to the petition, moved the court to dismiss the suit: Held, That had the defendant, not filed his answer, the motion should hnvo been sustained; but as it vvas, the motion was properly refused.
    An original attachment, sued out without citation to tho defendant, is a proceeding In rem; but if the defendant come in and take issue upon the petition, the action becomes personal. (Mote 1U0.)
    If a jury believed himself to bo in possession of a knowledge of facts calculated to influence his verdict, ho should make it known to the court; oth-.rvvise he violates his duty if. he suffers his personal knowledge to affect his verdict.
    Jurors cannot be too often reminded that they must look to the judge for the law and to the evidence for the facts.
    where tho court told tho jury: “lam not familiar with the custom of merchants in settling with insurance offices, or what are the liabilities of insurers, in cases of partial loss. I see on the jury planters and merchants who doubtless are familiar with transactions of this kind. You will apply the rules of the same to the nature of this kind of transaction: ” Held, Tho charge was erroneous. So far as the transaction was governed by law, it belonged to the judge to declare the law; and so far as it rested on particular custom, the custom was a laet to be given ill evidence to tho jury, and not to be left to their personal-knowledge
    Tho rule is well established that t-liis court will not reverse a judgment, on the ground that ihc verdict wits contrary to the evidence, where, the testimony is contradictory; but where There is no contradiction in the testimony, and no evidence to impeach the witness, the-judgment will be reversed if tho verdict be contrary to tho evidence. (Note 101.)
    Appeal from Harrison.
    
      Duval and Eoereit, for appellant.
   LIPSCOMB, J.

This suit was brought by an original attachment sued out by (he appellee against tho appellant. The attachment was levied on a wagon and three horses. There was no citation or personal service on the'de-femlant. At the return term the defendant, by his counsel, fded a motion to quash the attachment, and assigned various grounds in support of the motion. At tlie same term he answered the petition, first, by a general denial of all and singular the matters and things in the petition contained, and, secondly, set-off anil reconvention.

After these, answers, the motion to quash coming on to bo beard, the attachment was quashed. Tho defendant then moved to dismiss tho cause; which was overruled. Tho overruling the motion to dismiss the suit after the attachment was quashed is the first error assigned, and we had as well dispose o£ it before progressing further. There being no personal service, but suit on attachment only, it was, in its commencement, a proceeding in rem, and so continued, until tho defendant answered to the petition. The action ou the petition then became a personal action. Had not the defendant answered to the petition before the judgment of the court on his motion to quash the attachment was entered, the mere fact, of quashing the attachment would have dismissed tho suit; because the suit was so far against the property by attachment. That being quashed, there was nothing remaining of the case in court, as the plaintiff had not sued out or prayed citation for personal service. The defendant had, by taking issue on the petition, in the meantime made it a-personal action. The re "was no error, then, in overruling the motion to dismiss the suit. The parties then proceeded to trial, and there was a verdict and judgment for the plaintiff. A motion for a new trial was made by the-defendant, which’ being overruled, the defendant appealed.

On the trial a bill of exceptions was taken to the charge of the judge, and signed by him and made a part of the record in the caso. The portion of the-charge believed by the, appellant’s counsel to he. erroneous is this : The judge, in giving his charge to the jury, said : -‘I am not familiar with the custom of merchants in settling with insurance offices, or what are the liabilities of insurers in case of partial loss. I see on the jury planters and merchants who doubiless are familiar witli transactions of this kind. You will apply the rules of the same to the nature of this kind of transaction.” This charge is certainly objectionable in this : that so far as the transaction was governed by law, it belonged to the judge to declare that law; and so far as tiie question rested on particular custom, that custom was a fact to be given in evidence to tiie jury, and not dependent on the knowledge any particular jury might have of such custom. If this were permitted, each juror might assume to know of his personal knowledge what the custom was, and no two of them agree. If it was supposed that such knowledge was possessed bjr any one or more of the jurors, it was perfectly competent to make witnesses of such jurors. They would then be in tiie hands of each party to ascertain the means of acquiring a knowledge of such fact on tiie part of the juror. The oalh of a juror wifi, not permit him to find a verdict on what he may think lie knows of himself, because then he would be passing on evidence known to himself and not to his fellow-jurors. If a juror believes himself in possession, of a knowledge of facts calculated to influence his verdict, he should make it known to tiie court; and if sworn to give his evidence, his fellow-jurors will then have it before them, liot as what the juror would tell them in the jury-room, bnt what he had sworn to on the witness-stand. This way of allowing jurors to rely ou their own supposed knowledge of facts or the knowledge of any number of them, -without being- given in evidence, is believed more' frequently to occur than it ought. There is danger of its gr.owing into precedent. It is especially wrong in principle, and exceedingly pernicious in its tendency, as affording a pretense for disregarding tiie evidence and relying ou their own supposed personal knowledge of the fact, discolored by passion and prejudice, and warped by every variety of personal feeling. Jurors cannot be too often reminded that they must look to the judge for the law and to tiie evidence for the facts of a case. Tiie distinguished judge who gave this charge did not intend to be understood in the sense that might he applied to the language used. He could not have meant anything- more'than that, from tiie intelligence and practical good sense of tiie jury, they would be able the bettor to comprehend and apply the evidence, and not to give information to their fellow-jurors that could only have been given in the presence of the judge, under tiie oath of a witness. If, however, ho intended that the jury should be governed by their own personal knowledge of either law or the facts, lie erred in so doing; and as tiie statement of the evidence sent up shows that it was not a mere speculative ■opinion of the judge on ail abstract question, we cannot say but it had an influence on tiie jury. As it seems to be calculated to have had that tendency, it would ailord grounds for reversal.

The next question is, did the court err in overruling the motion for a new trial? It will he hardly necessary to premise that It lias been an established rule in this court that, where there was a conflict of evidence, and the jury .must from necessity give credit to one witness and withhold it from another, a case was presented thereby so peculiarly within their province to decide that we would not reverse a judgment because that a motion for a new trial had been overruled. The statement of facts shows that there was a contest about the proceeds of thirteen bales of cotton shipped by the plaintiff for the defendant. In relation to this cotton, a witness introduced by the plaintiff testified “that there was something said about tiie cotton; plaintiff said lie liad given him credit-for it.” Tiie defendant introduced a witness, who testified that tiie plaintiff received the thirteen hales mentioned in the defendant’s answer; that plaintiff was to ship the said cotton to Yew Orleans and account for the proceeds; the, cotton was shipped and sunk in Lake Caddo; the plaintiff stated to the defendant, that the cotton was insured at §30 per bale; plaintiff stated to defendant that he had been to Yew Orleans, and liad fixed down the insurance at §30 per bale, and that tiie insurance office had taken sixty days to pay the money. In the account rendered the plaintiff liad given credit for less than 620 per hale. There, is no contradiction here in tile testimony. It is all on one side, as to the cotton being arranged with the insurance office at §30 a bale. Títere was no evidence to impeach the credibility of the defendant’s witness: and it is not perceived liow the jury could have disregarded the evidence, unless, under the instructions given, they found the verdict on the personal knowledge of their own body. In this it seems the verdict was decidedly contrary to the evidence, on which ground the defendant ought to have had a new trial.

Note 100.—Campbell v. Wilson, 6 T., 379.

Note 101.—Weisinger v. Chisholm, 28 T., 780; Ector v. Wiggins, 30 T., 55.

Judgment reversed.  