#### Price’s Executor v. Warren, Administrator of Fuqua.*

Wednesday, July 1, 1807.

New Triall† — Affidavit of Jurors‡ — A new trial ought not to be granted on the affidavits of two of the Jurors, that they were influenced in their verdict by information given by one of their own body in the Jury-room.

*

For sequel of tie principal case, see Price v. Fuqua, 4 Munf. 68.

†

New Trials. — See generally, monographic *note*on “New Trials" appended to Boswell v. Jones, 1 Wash.

‡

Verdict — Impeachment by Jurors. — On this subject, see- *notes*to Carr v. Magruder, 2 Pat. & H. 107; *foot-note*to Com. v. M’Caul, 1 Va. Cas. 275; *foot-note to*Cochran v. Street, 1 wash. 79: *foot-note to*Steptoe v. Flood, 31 Gratt. 323; monographic *note*on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.

The principal case was cited on the subject in Thompson v. Com., 8 Gratt. 656; Bull v. Com., 14 Gratt. 630; State v. Cartright, 20 W. Va. 43.

Warren, as administrator of Fuqua, brought an action of debt, in the District Court of Prince Edward, against the executor of Price, on a bond executed in the year 1772, by his testator, in the penalty of 4001. conditioned for the payment of 2001. The defendant pleaded payment, on which issue was joined; and a general verdict and judgment were rendered for the plaintiff, with interest at five per cent, for twenty years, one penny damages, and the costs.

The defendant, after judgment, filed a bill of exceptions in the following words:— (“Upon a motion for a new trial:) — Presumptive payment was urged, in this cause, from the length of time ; — a motion was made by the defendant’s counsel fora new trial, stating two jurymen had declared, that one of their own body, who was not examined, said in the jury room, that he knew the testator of the defendant, and that he was so accurate a man in his affairs, that he would have taken a receipt on the bond if it had been paid, and that two of the jurors declared, that this circumstance alone influenced them to find for the plaintiff; which the plaintiff’s counsel admitted as if proved by affidavits of two of the jurymen, which motion was overruled this 7th day of April, 1802; because it would be dangerous to admit a pew trial on such information from the jurymen, and the new trial *"in*this cause would be against the justice of the case, to which opinion,” &c.

To the judgment of the District Court a writ of supersedeas was awarded.

Hay, for the plaintiff in error. This case depends on a principle settled in the case of Cochran v. Street(b) — The rule of law is positive, that a juror knowing any thing relative to the point in issue must give testimony in open Court. The propriety of this rule is obvious, because where evidence is offered by one party it'may be repelled bj' the other; but if the Jury find their verdict on testimony not known to the parties, they may be influenced by a view of the case which neither party expected, and which, if made known in Court, might be proved to be erroneous. In this case it was peculiarly necessary that the rule of law should have been observed. The bond was dated in 1772; and the Court would have instructed the Jury to find for the defendant, on the presumption arising from the *177length of time; but they found a verdict on evidence of which the Court knew nothing.

The only difference between this case and that of Cochran v. Street is, as to the number of jurors whose affidavits go to prove the irregularity of the course pursued by their own body. The case from Durnf. and East, mentioned by the President, in delivering the opinion of the Court, (where a new trial was refused upon the affidavits of two of the jurors stating, that the case was decided by cross and pile,) depended on quite different principles. There the evidence went to prove misbehaviour in the Jury, and had no relation to the merits of the ca.se. In -the case of Cochran v. Street the verdict was objected to, on the ground that four of the jurors, (whose affidavits were taken,) were opposed to any damages, and yielded to the verdict from a mistaken idea that a majority must govern. It was so improbable that a juror should be thus ignorant of his rights and his duties, that strong evidence was required to establish the fact, and a majority of the Jury confirmed the truth of the circumstance to which those four had deposed. In this case there was no improbability in one of the juror’s having given evidence to the rest after they had retired from the bar. The policy of the law, therefore, which requires the concurrence oí a great number of the Jury to impeach the verdict did not apply to prevent the Court from granting a new trial on the affidavits of the two jurors.

‘’Wickham, for the defendant in error. The case of Cochran v. Street, which has been relied on by Mr. Hay, is a conclusive authority against him. There the Court set aside the verdict, expressly on the ground that it was founded in mistake, which was positively sworn to by four of the jurors, and their testimony was supported by a great majority of the others. If the affidavits of two jurors would be sufficient to set aside a verdict, that number might be often tampered with.

The jury, in this case, were not influenced by any facts which appeared in evidence in Court, but were regulated by their own opinions only: and to this, objections are made. But for what purpose is a Jury of the vicinage required by the laws of this country? One of the excellencies of this regulation is, that the Jury, being acquainted with the characters of the parties, are more able to draw proper inferences from the transaction. But I principally rely on the dangerous tendency of suffering a verdict to be disturbed by the evidence of so small a number of the Jury.--Again, the granting of a new trial is to be exercised by the Court with sound discretion; and a new trial ought not to be granted against the justice of the case.

Thursday, July 2. —The judgment was unanimously affirmed by the Court consisting of all the Judges.

(b)

1 Wash. 79.