Martin v. Tidwell , 36 Ga. 332 ( 1867 )

Walker, J.

1. The evidence in this case was conflicting; perhaps it preponderated against the verdict; but, as there was a considerable amount of evidence in favor of it, and the Judge who presided on the trial was satisfied, we will not disturb it.

2. The second error alleged, is that the Court charged the jury “ that a partnership might exist where there was a joint interest in property, and a joint interest in profits and losses of any adventure or enterprise.” If there be error in this charge, it was not such an error as defendants below can complain of. The Code, §1892, says, “Ajoint interest in the partnership property, or a joint interest in the profits and losses of the business, constitute a partnership as to third persons.” The rule laid down by the Court required more proof to constitute a partnership than the statute does — he required both a joint interest in the property and in the profits and losses.

3. While the conduct of the juryman (Jones) was unbecoming for a man acting under the solemnities of an oath, still, we cannot for this cause set aside the verdict. It is the duty of the jury to hear all the evidence, and all the reasons urged by counsel in favor of their respective sides of the case, as well as the law given in charge by the Court, and when the cáse is thus submitted to their determination, then proceed to make up their verdict and not before. The verdict should speak the truth of the case, and until the jury hear the whole case their minds should be entirely free, so that upon an impartial consideration of all the fact's and the law applicable thereto, they may do equal and impartial justice.

We might not have granted a new trial in this case, if the the juryman’s misconduct had been unknown to the counsel, until after the rendition of the verdict; but certainly we ought not to do so when the counsel, knowing the facts, chose to take his chances before the jury notwithstanding. If, with a full knowledge of the facts, he permitted the trial to proceed, he must submit to the consequences. Doubtless if the matter had been brought to the knowledge of the ’ Court at once, he would have taken such action as would have been proper under the circumstances.

4. When a Court of Equity obtains jurisdiction for one purpose, it will retain it, until full and satisfactory justice is rendered to all the parties concerned. Walker vs. Morris, 14 Ga. Rep., 323. We think, therefore, the Court very properly so moulded its decree as to do complete justice and settle the entire partnership business.

5. We intimate no opinion as to what may be the rights of others, not before the Court, in portions or all of this property. This being a creditor’s bill, others may be heard hereafter, in the assertion of their rights, -if such rights exist. M. & W. R. R. Co. vs. Parker, 9 Ga. Rep., 394-6 ; McDougald vs. Dougherty, 11 Ga. Rep., 588.

Judgment affirmed.