Gibson v. Williams

39 Ga. 660

• Court: Supreme Court of Georgia
• Decided: December 15, 1869
• Status: Published

Opinion

Brown, C. J.

1. We are very clear that the new trial in this case was properly refused. Concede the competency of defendant’s wife as a witness and it cannot avail him. He must have known what she would testify, and it was his duty to have informed his counsel, and inquired of them whether she was competent before the trial. Having failed to do so, this Court will not relieve him against his own neglect.

2. The evidence does not show that the juror was related to the party, nor does the degree of relationship appear to the Court in the motion for a new trial; nor was it shown that the counsel of the defendant did not know of the existence of the relationship at the trial. The affidavit of the defendant shows that he did not know that Francis Swilly was on the jury at the trial. But, if it were material, it is not clearly stated that he did not know of the relationship of the juror to the payee of the note. It was his duty to know who was on the jury at the trial. The law charges him with notice of that fact.

3. This Court has decided at the last Term that proof by the defendant that he lost property during the war, without connecting the plaintiff with the loss, is not sufficient to authorize the jury to reduce the plaintiff’s debt. We do not think this a case where it is our duty to allow damages. We are not satisfied that the case was brought here for the purpose of delay only.

Judgment affirmed.