Smith v. Banks

Jackson, Justice. This suit was brought on a sheriff’s bond against the sheriff of Newton county and his sureties for breach of the bond in failing to levy, when directed to do so, the [31] 'executions of plaintiff on the property of the defendant in execution. When here before, as reported in 60 Ga., 643, the case was sent back for a new trial because the verdict of the jury might have been made on the excuse of the sheriff for not levying because of a homestead claim set up by him, when the debt on which the judgment was founded was contracted prior to the constitution of 1868 ; and the case was sent back because of error on that point, .and also because the sheriff did not prove that there was -a homestead legally set apart, the burden being upon him 'to make that proof. But it was there ruled distinctly that if the order to levy was revoked, and so found to be by the jury, the sheriff would be discharged, and a fortiori would his sureties also be discharged. On the last trial, 'now brought here for review, the testimony was conflicting on that point, the deputy sheriff testifying that it was revoked, and the plaintiff the contrary. The jury believed the testimony of the deputy sheriff, •as they had a legal right to do, and found the evidence to be in favor of the allegation that the order to levy was revoked and the executions taken possession of by the plaintiff. The evidence being sufficient to sustain the verdict, this court will not overrule the court below in refusing -to disturb the verdict on the ground that it is against the 'evidence and against law. No complaint is made of the ■charge, but the exceptions are that the verdict is against the law and the evidence. 2. The jurors cannot themselves attack their own verdict ; much less can the affidavit of the party that some of them told him that the verdict was caused by mistake .authorize a new trial. Judgment affirmed.