Stix & Co. vs. Pump & Co.

Ga. R., 368; Walker vs. Exrs. of Hunter, 17th Ga. R., 415; Burtine vs. State, 18th Ga. R., 534; Epps vs. State, 19th Ga. R., 103; Cohran vs. State, 20th. Ga. R., 752; Carhart & Bro., vs. Marshall, 23 Ga., R. 225; Candler vs. Hammond, Ib., 493; Martin vs. Mitchell, 28th Ga. R., 382. Even if injury sustained, plaintiff waived it. 5th Cow. R., 283 ante, 23 Ga. R., 493 ante.

WALKER, J.

1. As a general rule the jury, after they have been charged with a case, should not be permitted to separate without the express assent of the parties to the cause on trial. If it be necessary that any member of the jury should be temporarily absent from the body, he should be attended by an officer, and suffered to communicate with no one outside of the jury.

2. Jurors selected under the law occupy a high and responsible position. To their decision is referred important rights. They are selected on account of their intelligence and impartiality, and should be controlled by the evidence, and the law as given in charge by the Court. They should not be controlled by prejudice, passion, popular opinion, or other improper influence, and hence the necessity of their entire separation from others while making up their verdict. Their verdict should speak the truth of the transaction; and thus to discharge their solemn duties they should act dispassionately, seriously, earnestly, and with minds free from all bias.

3. The separation of the jury in this case was known to the parties before the verdict was made up and returned. Had complaint been made then, doubtless the Court would have taken such action as would have been proper under the circumstances. The acquiesence of the parties in the re-assembling of the jury to consider the case was an implied assent to the separation which must bind the parties assenting. As no misconduct is alleged on the part of the jury, (Adkins vs. Williams, 23 Ga. R., 225,) and the verdict is supported by the evidence, we do not, under the facts of this case, feel called to set aside the verdict and order a new trial. See The King vs. Woolf, 1 Chit. Rep., 400, (18 E. C.

upon

Barnett & Co, vs. Thompson.

L. R., 223,) where the subject is very fully considered. In the case of Martin vs. Tidwell, 36 Ga. R., 345, this Court say, "If with a full knowledge of the facts, the party permits the trial to proceed, he must submit to the consequences." If a party with a full knowledge of all the facts see proper to take his chances of a verdict very well; but he cannot afterwards make this laches on his own part a ground of complaint, upon which to set aside the verdict. Let him make his cause of complaint known to the Court at the proper time, and the Court will administer the law. He cannot speculate on the chances, and when the decision is against him then be heard in relation to a matter which received his tacit assent.

Judgment affirmed.

BARNETT & Co., plaintiffs in error, vs. BENJAMIN THOMPSON, defendant in error.

This Court will reluctantly interfere with the discretion of the Court below, in mere matters of practice; unless the legal rights of parties are prejudiced thereby.

In an action of trover for the sale and conversion thereby, of seventeen bales of cotton, the measure of damages which the plaintiff is entitled to recover against the defendants, under the provisions of the Code, is the proven value thereof, at the time of the conversion, or its proven value at any other time, between the time of conversion and the time of trial, without interest on the amount thereof.

Trover. Motion for new trial. RILL. Muscogee Superior Court.

Decided by Judge WOR-
May Term, 1867.

This was trover and bail by Thompson, against Barnett & Co., for seventeen bales of ginned and packed cotton, averred to have been worth $5,000.00, and converted by the defendants, on or about the tenth day of October, 1865. It was brought in the Inferior Court, and by consent carried to the appeal, in the Superior Court. The plea was general issue. When the case was called and a jury empannelled to try it,

Barnett & Co. vs. Thompson.

and when plaintiff's attorneys were in the act of opening the case, defendant's attorney moved to rule out the answers of Theodore Harris, to certain interrogatories taken out by plaintiff, upon the ground that but one person had acted as commissioner in taking them.

The commission read thus: "To N. R. Wilson, Commissioner for the State of Georgia, in Louisville, Kentucky, Esquires." Nothing was said though, about the commission having issued to but one commissioner.

In presenting said objection defendant's attorney stated that within the last five minutes, after the jury were empannelled, he had applied to plaintiffs' attorneys for the interrogatories upon which they relied, and had received from them these and others, that he never saw them before, that he had item that they had (not) been taken, that he, with the clerk, in vacation, shortly before that term of the Court, searched the clerk's office for interrogatories for the cases in which he was interested, and found none in this case.

In reply, Mr. Alfred Iverson, one of plaintiff's attorneys, stated to the Court, that Harris' interrogatories were taken and returned to the County Court, (Inferior Court,) before the appeal, and came up with the other papers to the Superior Court, and were in the office of the clerk of the Superior Court at its last regular term, and remained there all that term, (which was on the second Monday in November, 1866,) and until the adjourned term, in February, 1867, and during that term, and at the end of that adjourned term he took them away and brought them back at the beginning of the present term.

Iverson stated, also, that the objections to the interrogatories had not been made in writing. Then defendant's attorney proposed to put his said ground of objection in writing and asked time to do so, and commenced writing, saying it would take but a minute or two. The Court refused to wait, and overruled the objection and the trial proceeded.

The plaintiff proved that he had seventeen bales of cotton, (averaging from 550 to 600 pounds per bale,) taken from his farm against his will, by one Hughes, pretending to collect

Barnett & Co. vs. Thompson.

up property belonging to the United States, that this cotton was taken to Columbus, and said defendants sold the same at 32 cents per pound, giving a bill for it as theirs. He, also, proved that from October, 1865, up to the trial, the maximum and minimum prices of such cotton were from 32 to 45 cents per pound.

The plaintiff's attorneys had declined reading a clause of the answers of Pullem, a witness. Defendant's attorney read it in evidence.

It was, that Hughes and Chambers represented themselves as agents of the government of the United States, and were at that time at Union Springs, gathering up cotton and other property belonging to the United States government; they were acting under the orders of Powers, a government agent; at least they used his name in the papers which they gave. The defendants set up that they sold the cotton as agents, and proved that they said at the time of the sale that they took said price because the owner wished to leave the city. The evidence closed.

Plaintiff's attorneys stated that they elected to recover the value of the property, and the Court charged the jury, among other things, that if they should find for the plaintiff, they might find for the highest price of cotton proven, or any other proven value, to which they should add interest on the sum from the time of the conversion, and return their verdict for the aggregate amount.

The verdict was for $4,256.73, and costs against defend

ants.

A new trial was moved for, upon the grounds that the Court erred in refusing to reject said Harris' interrogatories, in charging the jury as to interest as aforesaid, and because the verdict was contrary to law, etc., etc.

The refusal of a new trial is brought before this Court and assigned as error.

L. T. DOWNING, for plaintiffs in error.

RUSSELL & WILLIAMS, WILLIAM DOUGHERTY, for defendant in error.

WARNER, C. J.

Barnett & Co. vs. Thompson.

The error assigned to the judgment of the Court below in this case, is the refusal of the Court to grant a new trial, upon the grounds specified in the record. The interrogatories of Harris had been returned to the clerk's office of the Court in which the suit was pending, and had remained there for some months, and then were taken out by one of the plaintiffs' counsel, and remained in his possession until the trial. When the cause was about to be submitted to the jury, exceptions were taken to the interrogatories upon the grounds that there was but one commissioner named in the commission, the commission being directed to "N. R. Wilson, Commissioner for the State of Georgia, in Louisville, Kentucky, Esquires." The deposition of the witness was taken by said commissioner, sworn to, and duly certified by him as such commissioner. The exceptions to the interrogatories were not made in writing, as required by section 3835 of the Revised Code. The counsel for the defendant asked for time to reduce his exceptions to writing, which the Court declined to give, overruling the exceptions, and admitted the interrogatories to be read in evidenee. We are reluctant to interfere with the discretion of the Circuit Courts, in mere matters of practice, unless the legal rights of parties are prejudiced thereby. According to strict rule, the exceptions to the interrogatories ought to have been in writing; the indulgence asked for to put them in writing, was more a matter of favor than a matter of right; but we are inclined to the opinion that the exceptions to the interrogatories ought to have been overruled, had the same been reduced to writing. By section 62 of the Revised Code, the Governor of this State is authorized to appoint commissioners in other States and Territories of the United States, to "take and certify depositions under commissions, or otherwise." Commissioners shall issue generally in blank. Revised Code, 3826.

A commissioner, like a Judge, should stand perfectly impartial between the parties. Code 3827. The answers of the witness must be under oath, and certified to be so taken.