¶1By the Court. —
¶2delivering the opinion.
¶3The only question in this case is, whether, when the securities to the contract neglect or refuse to appeal from the first verdict, and the recovery is diminished upon the appeal, are they bound by the first or the last judgment? From the first case brought before this Court, on the Act of 1839 (Cobb's Dig- 500), down to the decision in Durham's case, at Macon, last July, with the exception of Beall vs. Cochran (18 Ga. Rep. 38), this Court has uniformly maintained, that if any *676one or more of the defendants chose to abide by the first verdict, rather than litigate further, it was their right and privilege to do so-; and until the new Code goes into operation, which, we are informed, has prescribed a different rule, we shall adhere to the previous adjudications.
¶4It was comparatively easy to say, that one person should control five, or force them to litigate further, whether they wished to do so or not, and even at the risk of having them mulct in much heavier damages. But whether this is wise or just, is not proper, perhaps, for me to express any opinion.
¶5JUDGMENT.'
¶6Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be reversed, on the ground that the Court erred in sustaining the affidavit of illegality filed by the defendants .in this case.