
    *Wilson C. Hewitt, plaintiff in error, vs. Mary A. Brummel, defendant in error.
    (Atlanta,
    January Term, 1873.)
    1. Bailment — Partnership—Charge to Jury. — Where A. sues H. as bailee for money deposited with him for safekeeping, and H., who was a partner in business with B., the husband of A., sets up that the money was put into the partnership by B., it was not'error in the Court to decline to charge, at the request of H., that if the claim of A. be true, yet if B. put the money into the concern of H. and B., Ihe suit should have been brought against B., or against H. and B, The non-joinder of B. should have been pleaded in abatement, in order for H. to avail himself of it. And H. was not entitled to the charge as to the suit being brought against B. individually, unless it had contained the qualification that H. did not know the money belonged to A., when it was so put into the concern of H. and B.
    2. Partnership — Evidence of. — In such a suit, a receipt from B. to H., showing, a dissolution-of the firm, which had already been proven, and a settlement between them of the partnership business was immaterial testimony, and could not affect the rights of A.
    3. Jurisdiction. — Where such deposit was $950 00 in gold, and, after demand and refusal, an action of assumpsit was brought for that amount of gold, “or its value in currency/’ the plaintiff was entitled to recover the value of the gold at the time of the^ demand, with interest; and as no evidence was introduced on the trial showing it was worth any premium at that time, the recovery could only have been for $950 00, with interest from the time of the demand. The City Court of Augusta, whose jurisdiction is limited to $1,000 00, therefore, had jurisdiction of the case.
    4. New Trial — Charge to Jury. — While it may not have been altogether proper for the Court to have said to the jury, “That if they did not make haste, he should not be there to receive the verdict, as the Court room would be occupied in a few minutes by a democratic meeting,” yet it does not require that the verdict should be set aside therefor, on the ground that the jury were unduly hastened by it in their deliberations, when the Court immediately added: “You will then seal your verdict and return it in the morning.”
    5. Same — Sufficiency of Evidence to Sustain Verdict. — If there be positive evidence to support the verdict, though conflicting with other evidence, and the Judge who tries the cafe refuses to set it aside on the ground that it is against the weight of the evidence, this Court, as it has often decided, will not interfere, unless the verdict is so decidedly against the weight of the evidence as to be evidently the result of prejudice, or other wrong or illegal influence or motive.
    Bailment. Partnership. Pleading. Evidence. Jurisdiction. Immaterial error. Jury. New trial. Before Judge Gourd. City Court of Augusta. May Term, 1872.
    *Mary A. Brummel brought assumpsit against Wilson C. Plewitt, on an account for $950 00 in gold coin or its value in currency, received from her for safe keeping on May 21st, 1869. ' The declaration also contained a count for money loaned, and one for money had and received.
    The defendant pleaded the general issue, and further that the plaintiff ought not to have or maintain her aforesaid action against him, for the reason that the money, the subject matter of this suit, which the plaintiff now claims to be and to have been, at the time it went out of her possession, her separate and individual property, was controlled, appropriated and used by Joseph Brummel, the husband of the plaintiff, in the business of W. C. Hewitt & Company, of which firm the said Joseph was then and there a co-partner, and as' a part of his contribution to the capital stock of said firm, it being in amount only a part of the full sum which he had undertaken and promised to contribute.
    • The above synopsis of the pleadings shows the issues involved sufficiently to a clear understanding of the decision, and the evidence is therefore omitted.
    
      The jury returned a verdict in favor of the plaintiff for the amount sued for with interest from January 9th, 1872. The defendant moved for a new trial upon the following grounds:
    1st. Because the verdict was contrary to the evidence and the law.
    2d. Because the Court erred in refusing to charge the jury as follows: “If you believe from the evidence that the claim of
    plaintiff is true, and yet that Brummel put the money into the concern of W. C. Hewitt & Company, this suit should have been brought against Brummel or W. C. Hewitt & Company.”
    3d. Because the Court erred in refusing to admit in evidence the following receipt, it having been shown that Joseph Brummel and the defendant were in business together as copartners, and that Brummel assisted in the sale of the gold, *and in person deposited the proceeds in the National .Bank of Augusta, and himself put it into the business of W. C. Hewitt & Company:
    “Received, Augusta, Georgia, January 7th, 1871, of Mr. W. C. Hewitt, seven hundred and fifty dollars, ($750 00) being in full for my entire interest in the partnership business carried on at No. 282 Broad street, Augusta, Georgia, under the firm name and style of W. C. Hewitt & Company (this day dissolved,) to-wit: all the stock on hand, debts due the concern, whether by notes, due-bills, open accounts or otherwise, said W. C. Hewitt assuming all the liabilities and contracts heretofore made in the name of the firm.
    (Signed) “Joseph Brummer.”
    4th. Because the amount sued for, to-wit: $950 00 in gold coin, was beyond the jurisdiction of the City Court, which only extends to $1,000 00 in currency, and, therefore, the suit should have been dismissed.
    5th. Because the Court erred in remarking to the jury at the close of the charge, as follows: “Gentlemen, if you do not make
    haste, I shall not be here to receive your verdict, as this hall will be occupied in a few minutes by a democratic meeting.” The effect of such remark being to defeat that deliberation which a jury should, in all cases, exercise.
    The motion was overruled, and the defendant excepted.
    Hooic & Gardner, for plaintiff in error.
    Jopin T. SpiEwmake; Jopin S. Davidson, for defendant.
   Trippe, Judge.

The defendant did not plead in abatement the non-joinder of Brummel, nor did the non-joinder of a necessary party appear upon the face of the pleadings. He was not, therefore, entitled to a motion for a non-suit, nor to the first charge requested, in so far as it applied to the suit being brought against Hewitt & Company. This, of itself, relieved the refusal of the Court to give the written request in charge, *from being error: 1 Chancery Pleadings, 46. But that portion of the request that refers to an action against Brummel, individually, should have been qualified by the proviso that Hewitt did not know the money belonged to Mrs. Brummei, for under the facts proven by the plaintiff, as to the ownership of the money and Hewitt’s knowledge of it, both Hewitt and Brummei would have been responsible had the firm used it, even by Brummel’s authority.

The plaintiff claimed that Hewitt was the bailee of the money, and used it in the firm business. If so he was liable. The defendant replied that it was Brummel’s money, or if it was his wife’s he did not know it, and that Brummei put it into the co-partnership. The firm had been dissolved, and Hewitt had a receipt of a full settlement with his co-partner, showing that he, Hewitt, succeeded to all the assets and was to discharge all the liabilities. We do not see how that receipt could illustrate the question of Hewitt’s liability on this bailment to Mrs. Brummei, or how her rights could be affected by it.

The suit was for $950 00 in gold, or its equivalent in currency. The plaintiff made a demand in January, 1872, and there was a verdict for $950 00, with interest from the-9th January, 1872. There was no proof of the value of gold at the time of the demand or afterwards. The Court cannot judicially take cognizance of the fact whether or not gold is worth a premium over currency, or if so, what that premium is. The verdict is for currency. Therefore, it was not shown by the pleading— for the value of the gold was not alleged — nor by the proof, nor by the verdict that the claim was beyond the jurisdiction of the City Court. That jurisdiction is limited to $1,000 00. The plaintiff was only entitled to recover what was due her at the time of the demand, to-wit: 9th January, 1872, with interest. She only proved $950 00 in gold, without any proof as to its value at that time or afterwards. The action was in assumpsit, or complaint on contract. The pleader entitled it at the conclusion of the declaration ^“petitioner’s demand.” It certainly is not an action of trover.

We cannot think the defendant was injured by the Court’s remarking to the jury that if they did not make haste he would not be present to receive their verdict, as the Court-room would in a few minutes be occupied by a public meeting, and adding immediately, “You can then seal your verdict and return it in the morning.” The objection is not that the privilege was given to the jury to seal their verdict. This would have allowed them to disperse. But we suppose the parties consented to that, at least it does not appear that the jury did disperse before rendering their verdict. Defendant complains that the remark tended to unduly hasten the jury in their deliberations. This might have been true, had the right not been given them, in case they did not soon agree, to seal their verdict and disperse. This relieved it from being an injunction that might otherwise have given even the jury a right to complain. It was a remark, after 'all, which was as apt to injure one party as the other, provided either was liable to be injured by it, modified as it was h^_the right extended to the jury.

The evidence was very conflicting; indeed, on the main question, positively contradictory. There was no such preponderance on either side to authorize this Court to set the verdict aside, over the refusal of the Court below so to. do, no matter for whom it had been. There were seemingly inexplicable circumstances on both sides. It was hard to tell exactly where the truth did lie. The sole responsibility as to that, in such a case, must be on the jury.

Judgment affirmed.  