By the Court. —
Jenkins, J.,
delivering the opinion.
This was a libel for divorce, filed by Jane Gholston, against James S. Gholston, for a divorce, a vinculo matrimonii, upon the ground of cruel treatment. At the March Term, i860, of the Superior Court of Madison countyj the cause came on for trial, and a.verdict was returned granting a total divorce between the parties, and providing for division of the property between them.
A motion for a new trial was made by counsel for defendant, on sundry grounds, which will hereafter be considered. After argument, the Court below refused the rule absolute for a new trial, and plaintiff’s counsel excepted, insisting on [632]*632each ground taken, and assigning error upon the ruling of the Court on each.
SENDING OUT WRITTEN CHARGE WITH JURY. “It was at most a mere irregularity to allow the written charg-e of the court to go out wUn the jury: and this not being objected to at the time, it is no cause for a new trial. Whether it is not the better practice in some cases, if not in all, quaere?” Chattahoochee Brick Company v. Sullivan, 86 Ga. 50 f61. * * * “As no objection was made by counsel to sending the charge out, we think it no cause for a new trial. Indeed, some of us regard it as a wholesome practice for every case. But we all agree that at most it is only an irregularity, and that an omission to object was a waiver of objection. Bass v. Winfry, 20 Ga. 684, opinion by Benning, J.” Id. 67.
[632]*6321. In the Court below, a preliminary question was raised by the respondent to the rule nisi, upon which she moved to dismiss the rule, viz.: “That the defendant can not move for a new trial after the first verdict, and before the second, in a case where a total divorce is granted — 'the verdict, in such case, not being final as to him, and the law itself giving the appeal, without its being demanded by the defendant.” The Court overruled the motion of respondent, and it is renewed here.
It is erroneous to say that the law gives the defendant, in a libel for divorce, an appeal, as a matter of course. An appeal annuls the verdict from which it is taken, unless the appeal be dismissed by consent, or on motion for irregularity, the verdict goes for naught — accomplishes nothing. But the Constitution provides, that “divorces shall be final and conclusive, when the parties shall have obtained the concurrent verdicts of two special juries, authorizing,” etc. The first is as necessary to effectuate the divorce as the second. If there be any irregularity in the obtainment of the first, it is as important to the defendant that it be corrected, as a like irregularity in the second. The obtainment of the first verdict is an advance made, a position gained by the libellant; it is half the work accomplished. If illegally rendered, it ought to be set aside; but this can only be done by a motion made during the Term at which the verdict was rendered. We hold that the Court committed no error in overruling the motion to dismiss the rule nisi.
2. Certain depositions of witnesses, taken under commission, in answer to interrogatories attached, and when the plaintiff proposed to read them in the progress of the trial, defendant objected, for reasons other tiran the irrelevancy of the evidence. Plaintiff replied, that the commissions had been "in Court, opened, and subject to inspection more than one day before the commencement of the trial, and that all objections then urged were bad in law, unless “taken and determined before the case was submitted to the jury.”
Defendant rejoined, that the objections had been written out upon the envelopes to the commissions severally, before the cause was submitted to the jury, and must have been seen by plaintiff or her counsel.
[633]*633The Court held that, in the language of the law, the objections must be “taken, and determined before,” etc., and that the onus was upon the party objecting, not only to “take,” but to ask a determination of the objections before going to the jury. We hold this ruling correct.
The exception taken to the overruling of the second ground in the motion 'for a new trial, is divested of all force by the explanation of the Court below appearing in the record, and therefore will not be considered.
3. The 3d, 4th, 5th, 6th, 7th and 8th grounds taken in the motion for a new trial allege errors in the charge given by the Court, as the exceptions cover nearly the whole of it.
We overrule all the exceptions from the 3d to the 8th inclusive, holding, that, on all the points therein made, the Court gave the law in charge to the jury.
“Gíntuímín oí thí Jury :
“We have arrived at the end of the investigation of this case, which has been necessarily long, tedious and complicated. During the whole of it, I have endeavored, to the best of my ability, to hold the scales of justice evenly between the parties, and to give to each the amplest opportunity to lay their respective cases before you in the manner most satisfactory to themselves. Whether I have done this or not, is subject to review by a higher tribunal. No mistake of mine can by any possibility injure either of these parties. The evidence and the points decided all exist in writing; and this charge is put in writing in order that either party must have a correct statement of his grievance, if he chooses to appeal to that tribunal. And this reminds me to state to you right here, that while you alone can judge of the facts — while you alone can say what is true or what is false, you are bound by law to take the law from the Court; you are bound not to disregard the law as given you in charge by the Court, but you ought honestly and independently to enforce it according to the evidence. The reason and plain necessity for this obligation on your part will be seen 'at once, when I remind you that while it is true that no mistake of mine can injure the parties, because my judgments can be revised and corrected, it is equally true that the parties have no remedy against any mistake of yours in matters of law. No writ of error or bill of exceptions lies against you to the Supreme Court. If you, therefore, refuse to take the law [634]*634from the Court, the injury to the parties may be totally without remedy. Our system of jurisprudence, therefore, ordains and establishes — and wisely ordains and establishes — that the jury taking the law in confidence and good faith from the Court, shall limit themselves scrupulously to their appropriate functions, which are fully discharged where they find the truth of the facts, and honestly apply the law given in charge by the Court to those facts.
SUNDAY-SERVICE, LEGAL NOTICE OR ADVERTISEMENT MADE •ON, VOID. “Sunday is dies non juridieus, and service can not lie made» or legal notice given on that day, or the business or work of ordinary callings done. Therefore, tlie publication of the advertisement of a marshal’s sale fox* taxes in a newspaper appearing on Sunday was not legal, and the sale thereunder passed no title.” Sawyer v. Cargile, 72 Ga. 290. And see Dennis v. Sharman, 31 Ga. 60Y; Penal Code of I8./0, §422.
[634]*634“This is a suit for a divorce, brought by a woman against her husband, a full statement of the grounds for which is contained in the declaration read to you by the plaintiff’s counsel. All these grounds, it is contended by the plaintiff, constitute what the law calls by the general name of cruel treatment. The divorce is not sought on any other grounds — none other is taken in the libel filed; Now, what constitutes cruel treatment, in the meaning of the law, is a question of law for the Court. If the husband inflicts on the wife, by force or violence, bodily pain or suffering, and especially degrading pain or suffering, such as cowhiding or whipping, this would be cruel treatment. But this, and such as this, is not all that ■constitutes cruel treatment. The commission of acts which outrage the feelings of modesy and decency, such as threatening to commit, or attempting to commit, adultery, or ■cursing, abusing, or using insulting and opprobrious language, when done between husband and wife, whether by the husband to the wife, or by the wife to the husband, and in the knowledge, or coming to the knowledge, of both — these, also, if persisted in, and unatoned for, constitute cruel treatment. Now, if you believe, from the evidence, that the defendant, previous to the beginning of this suit, has been guilty of these or either of these kinds of cruel treatment, without sufficient justification, you ought to decree, by your verdict, either ■a total or conditional divorce; and whether you allow, a total ■or conditional divorce, is a question exclusively for you to decide, from the evidence, and the evidence alone; for the law says, “in case of cruel treatment on the part of one toward the other of. the parties, the jury may, according to the circumstances of such case, determine whether the divorce .shall be from the bonds of matrimony, or from bed and board;” the first part of which means a total divorce, and ■the last means a conditional or partial divorce. Evidence has been offered and admitted before you, tending to show [635]*635these several sorts of cruel teratment; but whether you believe the evidence or the charges to be true, from the evidence, is a question exclusively for you. It is your duty to examine well the evidence, and all the evidence on both sides, and let your verdict show what are your honest convictions on these, points after having so examined it.
SUNDAY — VERDICT RENDERED ON. “A Judge of the Superior Court can not open Court and receive a verdict from the jury on tlie Sahhath day, and such verdict so rendered, is illegal and a nullity.” Bass-. v. Irvin, 49 Ga. 436 (1), 439; Cheeseborough v. Vanness, 12 Ga. 380. Appeals entered on Sunday, void. Neal v. Crew, 12 Ga. 93.
“On the trial of a defendant for an assault, or assault and battery, opprobrious words or abusive language, may amount to justification; and if the defendant were on trial for whipping his wife, the question would arise, whether this provision of the law applied to the case of. a man whipping his wife? But such a question does not arise in this. case. When a woman sues her husband for divorce on the ground of cow-hiding or whipping her, he can not justify himself by showing opprobrious or abusive language on her part, because it is not like conduit, in the language of the law. Abusive or insulting language ■ by a woman to her husband is not like conduct with cowhiding or whipping the wife by the husband. But opprobrious and abusive language, when used by the wife to the husband, outrages the feelings of modesty and decency as much as when used by the husband to the wife. Now, do you believe, from the evidence, she did this, or was guilty of conduct similar? - If she did, she is not entitled to a divorce, either total or partial, on the ground of his cursing or abusing her, or threatening or attempting to commit adultery; for it would all be like conductJ as the law terms it, both tending alike to hurt and wound the feelings.
“Now, therefore, you will inquire, did he outrage her feelings as she complains? Next, did she outrage his as he complains? Is he guilty, and she not guilty, in this respect? If so, she ought to have a divorce. Are they both guilty, or she more guilty than he in the matter of insulting and wounding each other’s feelings? If so, you ought not to grant a divorce.
“Now, passing from this, you will inquire from the whole evidence, do you believe he cowhided her? If he did, she is entitled to a divorce on that ground alone, no evidence being-brought before you of like conduct to that on her part. Though I have charged you that abusing and insulting him is not like conduct with cowhiding her, and can not be considered by you as a ground for refusing a divorce, if you believe he cowhided her; yet, it may, and, if • true, ought to [636]*636be considered as one of the circumstances of the case to determine whether the divorce shall be from the bond of matrimony, or from the bed and board, and all other instances of misconduct on her part that you believe to be true, from the evidence, ought to be considered as to whether you will make the divorce, if granted, less favorable to her, and all instances of misconduct on his part that you believe to be true, from the evidence, ought to be considered by you as to whether you will make the divorce, if granted, more favorable to her.
“With regard to the contrary and conflicting evidence introduced here, if you believe it to be contrary and conflicting, you must weigh it all, and the circumstances surrounding it, and decide according to the preponderance of evidence. This being a civil case, you are to decide according to the preponderance of evidence, and need not believe, beyond a reasonable doubt, any fact in order to find it true.
“You must also bear in mind the difference between positive and negative evidence. When a witness says he saw a thing, that is positive evidence; when a witness says he did not see a thing, that is negative evidence. Now, when both witnesses are equally credible, and otherwise equally reliable, the positive evidence ought to prevail over the negative, and especially when the witness who testified negatively, not only that he did not see the thing, but also that he did not look for it.
“The defendant’s answer has been read before you, and you have heard his statements on his side of the case. To put in this answer and to read it to you was his clear right, for the law says: The defendant’s answer or defensive allegation in writing may extenuate, deny or contain as much matter, or as many circumstances in his defence, as he may think necessary and proper therein. But you must remember, this answer is not evidence, and must not be regarded by you only so far as it is sustained and proved by the evidence. You must look to the evidence, and the evidence alone, to decide how far you will find the answer true.
“With regard to the manner in which you will dispose of the property contained in the plaintiff’s schedule, you will first inquire how far that schedule is sustained by the evidence? Did the defendant own the property contained in the schedule? Does'he own it now? What is it worth? How much of it did he get by his marriage with the plaintiff? [637]*637Having ascertained these points, if you conclude to grant a total divorce, you will further find from all the surrounding circumstances established by the evidence, how much of it will you give to the plaintiff, if any? How much of it will you give to the defendant, if any? How will you divide it? All this you must find and decide by your verdict. The law leaves it to your discretion, and you must be controlled in your decision only by the evidence, and by the rules of justice, equity and good conscience.
“If you find and decree a conditional and partial divorce, you will still have to decide what separate maintenance and support you will allow to the wife. In this case — that is to say, in case of a conditional or partial divorce, the law says, the jury, by their verdict or decree, shall make provision out of the property of which the husband may be possessed for such maintenance and support. The manner in which you shall do this, the law leaves entirely at your discretion. You may do this by giving her a portion of the property as her own, to do with as she pleases, you may do it by giving a portion to support her during life, or you may do it by decreeing that the defendant shall pay to some officer, as the clerk of the Court, or to some trustee to be appointed, a monthly, or quarterly, or annual allowance in 'money for such support or maintenance.” •
9. The 9th ground of the motion alleges error, in that the Court refused to charge the jury as requested. This was the charge requested, viz.: “That if the jury believed, from the testimony, that the defendant was guilty of any mistreatment or cruelty towards the plaintiff, and that after such treatment or cruelty, was brought to her notice, she still voluntarily lived with him, this was evidence going to show that she consented to such treatment, or waived her rights under it; and if she did consent to it, or waive her rights under it, then she can not claim a divorce on that ground.” It appears from the record, that this charge was given to the jury by the Court, except that His Honor declined to say, that a wife living with her husband after ill-treatment received from him, is evidence that she consents to such ill-treatment, and we think he very properly excepted from his charge that portion, of the request.
10. The 10th ground of the motion assigns error in this: That the Court, after having charged the jury as requested [638]*638by defendant's counsel, “that if the libellant was consenting tacitly to the whipping defendant gave her (if he gave her any), though such consent was not known to. the defendant at the time, then she is not entitled to a divorce for that cause,” added at the request of plaintiff's counsel, “there is no evidence, of any consent in this case.”
We think it better that judges, in charging juries, should abstain from saying to them, that there is, or is not, evidence in the case of this or that fact. But seeing nothing in this case proving directly, or raising the presumption of such consent, we would not, for that cause, send this case back.
11. The error complained of in the nth ground, consists in the sending out of the written charge, as delivered to the jury. This we think an unsafe practice. The precautionary injunction to the jury not to read any part without reading the whole, is not a reliable safeguard against even an unintentional misuse of the document. Books from which the law is sometimes read to a jury by the Court, are not allowed to go to the jury, and yet, they might be sent, with the portion read, plainly marked, and an injunction that if they opened the book, they must read all that was so marked, and no more.
12. The 12th ground is, “that the case was partly tried upon the Sabbath day, the Court having charged the jury, and the jury having retired and considered, and determined upon their verdict on that day.” These appear to be the facts arising here. The Court was actually delivering the charge to the jury on Saturday night, when the hour of 12 o’clock arrived, and the Sabbath day, according to our computation of time, had commenced before he concluded. This may have been inadvertence, but, under all the circumstances, was certainly no very grave error. On the Monday following, the same judge was, by law, required to open and hold a Court in another county. Beyond the conclusion of the charge, and the sending of the jury to their room, nothing was acually done in open Court on the Sabbath day. The jury could not legally be discharged until Monday morning, and must therefore of necessity be sent to their room. In the course of the Sabbath day, perhaps about three o’clock, P. M., the judge received a message from the jury that they had agreed upon their verdict, and the counsel of each party in the case being present, or having been summoned, con[639]*639sented to its reception by the Court. The judge then went into the court-room, and sent for the jury. Upon their entrance, and before the verdict was read, one of the counsel in attendance retracted the consent he had given, that the verdict be received, and objected to it. The jury were then remanded, and their verdict was not received until Monday morning. Whatever judicial action was had in the case on the Sabbath day, was either inadvertent or inevitable. Of the latter character was the retention of the jury in their room. That being unavoidable, it is inconceivable how they could have been restrained from thinking and speaking of the case. We think what transpired on the Sabbath was not sufficient to vitiate the verdict; holding, at the same time, that all Courts should abstain from the transaction of ordinary business on that holy day.
13th. The 13th, and last ground upon which the motion for a new trial was based, is, “That the jury were improperly influenced to agree upon a verdict, by representations that unless they should agree speedily, the judge would carry them with him to Elbert county, and that he was making preparations for that purpose.” This communication was made to them by the sheriff of the county, under whose official charge they had been placed.
This conduct of the sheriff was a gross and flagrant violation of his official duty. And, moreover, it can not be lightly regarded, in- considering the validity of the verdict. It is an inflexible rule of law, that after a jury shall have been charged with a cause, having had the law and the evidence placed before them, by or under the supervision and direction of the Court, all communication between them and the rest of mankind shall be suspended, except by permission of the Court, until they shall have been discharged from the case. It is of the last importance that this rule be rigidly enforced, to the end that the administration of justice may be both pure and free from the suspicion of impurity. The ascertainment that some unauthorized communication had been had with the jury, the nature and purport of which was unknown, ought to vitiate a verdict. How much more a known communication, calculated to intimidate jurors, to unsettle resolution, based upon fixed and well considered opinion — to produce a conflict between a sense of duty and personal comfort, convenience or interest. Here were men withdrawn [640]*640from their families and their occupations, for the discharge of a public duty, with the confident expectation of being restored to their usual associations and employments at the close of the week. Being required to render a verdict in a cause submitted to them with unanimity, and being unable to agree in opinion, until that week had been spent and another had commenced, whilst in this State (for such is the evidence), the above communication is made to them by the ministerial officer of the Court, who professes that he “understood (it) from the Judge and othersIt matters not that the communication was untrue. Dare we assume that the jury received it as untrue? Dare we speculate upon the probable influence it exerted? They were threatened by an officer of the Court (for that is the nature of the communication), who, in aid of the threat, proposes to have for it the high sanction of the Judge, with being thus carried away from their homes, their county and their business, and confined for an indefinite period in another county, unless they speedily agree upon a verdict. There are many men who would be more easily moved from an opinion or a purpose, by such a threat, than by the offer of a pecuniary bribe. We can not be assured that the agreement, subsequently made, but unattainable before, was not effected by this communication. The communication itself was clearly illegal; it was calculated to influence the jury, or some of them, and therefore the verdict is not free from taint. We are reluctantly constrained, for this reason, to reverse the judgment of the Court below, refusing a motion to set aside the verdict and grant a new trial. v>
JUDGMENT.
Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be reversed, on the ground that there was an improper and illegal interference with the deliberations of the jury, after the Court had charged them in the case, by unauthorized communication with them of the sheriff of the county, and that the Court erred in not setting aside the verdict upon the thirteenth and last ground of defendant’s motion for a new trial.