"A rule absolute was obtained against Gill, the sheriff of Lee, for the default of his deputy, in not paying over money collected by the deputy. Some five or six years afterwards, a motion was made to vacate, or set aside, the rule. It was vacated after verdict, and Odom moved for a new trial, on grounds set out in the motion, which was overruled, and Odom brings the case here on the refusal of the court to set aside the verdict and grant the new trial.
1. The first ground is that the court erred in refusing tb fill up the panel of petit jurors to twenty-four — two of them being related to the sheriff — but had the two stricken for cause, and then the jury made from the remaining jurors. We think that the court acted in accordance with the old practice in striking a special jury from the grand jury. No harm seems to have been done ; no effort was made to purge *183tbe remaining jurors, and there is no pretence that any were not impartial. The jurors who tried the case were “ omni exo&ptione majoresso far as the record shows us any thing about them, or either of them.
2. There can be no doubt, we think, that if the deputy sheriff paid over the money to the plaintiff’s attorney, and the attorney loaned some of it to him, that the high sheriff, or principal sheriff, would be relieved. The act of the attorney is the act of the plaintiff. The sheriff is bound to obey him, and when he got the money, the deputy sheriff had done his duty as an officer in paying it to him. Whatever blame may attach to the deputy for borrowing from the attorney money which belonged to his client, was a matter between the two. The attorney clearly acted badly; the deputy certainly acted not very circumspectly; but the sheriff-in-chief was not at all to blame. The transaction between the deputy and the attorney, after the money was paid to the attorney, was a dealing between the two as men — not as officers. The attorney assumed the debt to his client, and the deputy owed it to the attorney.
It would certainly be very unjust, however we may view the deputy sheriff’s conduct in borrowing the money, to make the sheriff responsible. If the deputy had stolen the money, after he paid it over, would the sheriff have been responsible ? Hardly, we think ; no more would he be, if he borrowed it; indeed, much less would he be, inasmuch as to borrow, though one knows it is not the lender’s money, is not so bad as to steal.
3. But after the death of Eloyd, the attorney, was it competent for Sullivan to testify that he paid Eloyd the money and borrowed it back ? Odom is held bound by the contract that Eloyd, as his agent, made with Sullivan, the deputy of Gill, the high sheriff. The effort is a naked one to discharge tlie sheriff from his liability on account of the deprrty’s default, by the deputy’s testimony that he paid the money collected to a dead man, whose mouth is closed forever. Principle is against allowing such one-sided evidence, and the *184spirit of tlio evidence act is to the same effect. Suppose Odom was charged with having made the contract, and loaned the money, and he were dead, could Sullivan, the other party to the contract, which is set up to relieve Gill, be allowed to testify about it ? We think not; and if Odom’s contract was made by an agent, or attorney, for him, and that agent were dead, could the other party to it be a witness % We think that the same reason and spirit of the rule would exclude the witness in the one case as in the other. See 55 Ga., 187; 51 Ga., 115, 171, and others. Besides, if the deputy, by his oath, relieves his principal, does he not relieve himself ? How much this evidence may have influenced the jury, we cannot tell. There was other evidence of the fact of this payment and loan, to the admissibility of which we see no objection; but other facts proven were in conflict therewith, and possibly what Sullivan swore, as testified to by Gill and another, on the trial in the county court, may have turned the scales. At all events, we think the admission of this evidence of what Sullivan swore, error enough to demand a new trial.
1. The facts in this record would seem to make this case res adgudicata, but for the ruling of this court in 2d Kelly, 221, and 4th Kelly, 200; also, in 15 Ga., 182. It seems from these eases, that the court may set aside a rule absolute, whenever it has not been fully heard on the merits; and the whole facts here were not before the court when the rule was made absolute against Gill. Indeed, a former recovery has been pronounced by this court good in any case only when the real merits were passed upon in the former case. 6 Ga., 195.
The case is a very singular one. Sullivan’s reluctance to tell Gill about it; his silence until Eloyd’s death; and his general conduct touching this matter, as the record shows it, is curious.
The best we can do with the case is to send it back, and let it be tried on its merits, leaving out what Sullivan swore about it, as Floyd, the other party to the contract attempted to be set up to excuse the sheriff, is dead. If one cannot be *185heard in behalf of himself and his client on this contract, which is the issue in this case, the other party to it ought not to be heard to excuse his principal, the high sheriff, by proving that he paid the money to, and borrowed it of, the dead attorney.
Eor cases ruling on competency of witnesses where party is dead, see 36 Ga., 520, 565, 568; 37 Ib., 118, 586, 623, 650; 38 Ib., 106; 39 Ib., 187, 479; 40 Ib., 150, 193, 490 671; 41 Ib., 123 ; 42 Ib., 120 ; 44 Ib., 46, 51, 73; 45 Ib., 25, 147, 410, 468, 511 ; 46 Ib., 414; 47 Ib., 273, 328, 359, 650; 48 Ib., 142, 580 ; 49 Ib., 120, 479; 50 Ib., 204, 395, 474; 51 Ib., 47, 600, 624; 52 Ib., 315, 385, 640, 648 ; 53 Ib., 9, 84 ; 54 Ib., 115, 119, 174, 222, 231, 451, 498, 623, 600 ; 55 Ib., 98, 124, 187 ; Ib., 47, 410, 474, 638.
Judgment reversed.