Mercier vs. Merceir.

was overruled by the Court, and plaintiff in error excepted, and assigns said ruling as error.

J. E. BOWER; R. SIMS, by brief, for plaintiff in error.

THOMAS F. JONES; H. FIELDER, for defendant.

MCCAY, Judge.

We do not see any ground for reversing the judgment of the Court in this case. The only pretence of error is, that he ought to have set aside the verdict as contrary to evidence, and we think he was right in not doing this. If the verdict of a jury is not to stand because the proof on which it is founded is not clearly in its favor, our whole theory of jury trials will be subverted. We have so often and so decidedly declared our opinions on this subject, that we do not care again to go over them. The jury is just as much a final arbiter, in its sphere, as the Court, and in matters of fact, it is generally far more apt to be right. The consent of twelve minds to a verdict is a pretty sure evidence of its correctness. And the error ought to be very plain for one mind to set it aside.

As we have said, we see no good reason for this bill of exceptions. We think this lady has been improperly delayed in this matter, and we award her the damages authorized by law in such cases, and judgment will be so entered. Judgment affirmed.

Jackson vs. Gayden.

BLAKE JACKSON, plaintiff in error, vs. F. T. GAYDEN, defendant in error.

1. In suit on a bond executed before June, 1865, and for the payment of money, upon the happening of a certain contingency, which does not happen until after that date, no affidavit of the payment of taxes need be filed.

2. The judgment of the Court below dismissing a suit upon an erroneous ground will not be sustained, because there is a defect in the declaration upon which the suit might have been dismissed, but which could be cured by amendment.

Relief law of 1870. Tax affidavit. Practice. Before Judge HOPKINS. Clayton Superior Court. September Term,

1871.

Blake Jackson, as transferree, sued out an attachment against F. T. Gayden, and filed his declaration, upon the following bond:

"GEORGIA-CLAYTON COUNTY:

"Know all men by these presents, that I, F. T. Gayden, of the county of Clayton, am held and firmly bound unto L. B. Jackson in the sum of $400, for the true payment of which unto the said L. B. Jackson and his heirs, I bind myself, my heirs, executors and administrators firmly by these presents. Signed, sealed and dated this 18th day of January, 1860.

"The condition of the above bond is such that, whereas there is now pending in the Superior Court of the county of Fayette, State aforesaid, a certain action of ejectment in favor of John Trushlet against John S. Jackson for the recovery of a certain lot of land in the thirteenth district of Fayette county, known as lot number two hundred and twenty-five. Now, if the said John Trushlet shall fail to recover the said lot of land, or its equivalent in money, from the said John S. Jackson, then this bond to be null and void, and in the event the said John Trushlet recovers said lot, or its equiva

Jackson vs. Gayden.

lent in money, from the said John S. Jackson, then this bond to remain of full force and effect.

"Signed, sealed and dated the day and year above written. (Signed) F. T. GAYDEN."

When said cause was called for trial defendant moved to dismiss the same because the plaintiff had failed to file his affidavit that all legal taxes had been paid in terms of the Act of October 13th, 1870. Plaintiff proposed to show that said cause did not fall within the aforesaid Act, in this, that said bond was given to indemnify one L. B. Jackson against the loss of a certain lot of land, which lot was involved in litigation in Fayette Superior Court, in favor of John Trushlet against John S. Jackson; that said land was recovered by said Trushlet at the October Term, 1870, of Fayette Superior Court, and that no right of action had accrued to the transferree of said bond until the termination of said suit; that no taxes were due upon said obligation until after the eviction, and that said eviction was not had until after said October Term, 1870, and, therefore, no affidavit was required. The motion was sustained and the case dismissed. Whereupon plaintiff excepted, and now assigns said ruling as error. To the bill of exceptions the Judge attached the following

note:

"There was no affidavit in reference to the payment of taxes filed in this case. I stated at the time the order of dismissal was made that there were other grounds on which the dismissal might be placed. I did not so announce, but I was of the opinion that no sufficient cause of action was set forth in the declaration."

J. L. BLALOCK; B. F. ABBOT; R. S. DORSEY, for plain. tiff in error.

JOHN L. DOYAL; S. S. FEARS, for defendant.

Williams vs. The State of Georgia.

MONTGOMERY, Judge.

1. The cases of Sirrine, administrator, vs. The Southwestern Railroad Company, 43 Georgia, 280, and of Pace vs. Williams, 44 Georgia, must control the present case upon the question of the tax affidavit required by the Act of 1870. Under those decisions no affidavit is necessary.

2. The fact that there is an amendable defect in the declaration, which, if not amended, would have authorized a dismissal of the case, will not justify this Court in sustaining the Court below in dismissing the case for want of the tax affidavit. Had a motion been made to dismiss the case on account of the defect, the declaration could, and probably would, have been amended to meet the objection. Judgment reversed.

JIM WILLIAMS, plaintiff in error, vs. THE STATE of GeorGIA, defendant in error.

Where, upon the trial of the defendant for the offense of an assault with intent to murder, the jury returned a verdict finding "the defendant guilty of an assault with intent to kill," and upon being remanded to the jury-room, with instructions from the Court, returned a general verdict of "guilty," a motion in arrest of judgment, based upon the facts aforesaid, was properly overruled. (R.)

Criminal law. Verdict. Practice. Before Judge HOPKINS. Fulton Superior Court. April Term, 1872. .

For the facts of this case, see the decision.

FARROW & THOMAS, for plaintiff in error. 1st. The first verdict, though a special and partial verdict, was nevertheless valid and binding. Judgment could have been rendered thereon: Graham & Waterman, on New Trials, vol. 3, page 1419; Bishop's Criminal Procedure, vol. 1, sec. 831, et seq; Bishop's Criminal Law, vol. 1, séc. 809. 2d. Special ver

Williams vs. The State of Georgia.

dicts not amendable, except as to matter of form: Bishop's Criminal Procedure, vol. 1, sec. 839; 26 Ga. R., 593.

J. T. GLENN, Solicitor General, for the State. 1st. The jury should have returned a general verdict of guilty, or not guilty, or guilty of some less offense: Code, sec. 4552. The Court was right in having the verdict made complete before receiving it: 26 Ga. R., 593; 14 Ibid, 8; 28 Ibid, 367.

WARNER, Chief Justice.

The defendant was indicted for the offense of an assault with intent to murder. On the trial of the case, the jury came into Court with the following verdict: "We, the jury, find the defendant guilty of an assault, with intent to kill." Objection being made to the form of the verdict by the Solicitor General, the Court, after making inquiry of the jury as to what was their intention to find by their verdict, and the response not being satisfactory, the jury were remanded to the jury-room by the Court, with instructions that the form of their verdict should be either a general verdict of guilty, or a general verdict of not guilty, or a partial verdict of guilty of an assault and battery. The jury, after having retired, returned into Court with a general verdict of guilty. The defendant made a motion in arrest of judgment, on the ground that the verdict was illegal, and contrary to law under the facts in the case, which motion was overruled by the Court, and the defendant excepted. We find no error in the refusal of the Court to grant the motion in arrest of judgment, on the statement of facts disclosed in the record. The first verdict was an informal and imperfect verdict, and it was the duty of the Court to remand the jury to their room, with the instructions given to them in regard to their legal duty, as to the form of their verdict.

Let the judgment of the Court below be affirmed.