a due consideration of the solemnity of their oath, will avoid the verdict. The principle contained in this rule, cannot be better illustrated than in Wats v. Brains.(1) It was an appeal of murder. The defendant set up, as a justification, that the deceased had, when passing his shop, made a wry mouth, and mocked him, and it was contended there was not evidence of malice prepense. But the judges gave their opinions, "that if one make a wry or distorted mouth, or the like countenance upon another, and the other immediately pursues and kills him, it is murder; for it shall be presumed to be malice precedent; and that such a slight provocation was not sufficient ground or pretence for a quarrel, and so delivered the law to the jury." Notwithstanding the evidence was pregnant against the defendant, eight of the jury agreed to find him not guilty. But the other four withstood them, and would not find it other than murder. On the next morning, two of the four agreed with the eight to find him not guilty; and afterwards the other two consented in this manner, that they should bring in and offer their verdict not guilty, and if the court disliked it, that they all should change the verdict and find him guilty. Upon this agreement they came to the bar, and the foreman pronounced the verdict, that the defendant was not guilty; which the court much disliking, examined every one of them by the poll, whether that was his verdict. Ten of the first part of the panel, severally affirmed their verdict. But the two last discovered the whole manner of their agreement, Whereupon they were sent back again, and returned and found the defendant guilty. And for this practise the foreman was afterwards fined £100. And the other seven who agreed with him at the first, every of them was fined (1) Cro, Eliz. 778, £40. And the other two who agreed with the eight, although they affirmed that it was because they could not endure or hold out any longer, yet for that they did not discover the practice, being examined by poll, but affirmed the verdict, were fined each of them £20, and all of them imprisoned. But the other two were dismissed, yet blamed for consenting in abuse of the court. In Dana v. Roberts.(1) Verdict for the plaintiff. Motion in arrest of judgment, that one of said jurors, while they had the cause under consideration, related to a Mr. Merrils the full state of the case, and of the evidence on both sides; the facts being proved, the court set aside the verdict. By the court." The principal guard upon jurors in this state is, their oath and their virtue. If they are suffered to enter into conversation with people respecting the causes they have under consideration, the purity of trials by jury, the great barrier of liberty and justice will be corrupted; it ought therefore to be guarded with the most vigilant attention. So, if the jurors, being charged with the cause, indulge in spirituous liquors, as in The People v. Douglass.(2) The jury empannelled to try the prisoner upon an indictment for murder, were allowed to leave the court-house during the trial, under the charge of two sworn constables. Two of them separated from their fellows, went to their lodgings, a distance of thirty rods, ate cakes, took some with them on their return, and drank spirituous liquors, though not enough to affect them in the least, and one of them conversed on the subject of the trial. They returned and heard the trial through, and joined in a verdict of guilty. Held, that the mere separation of a jury, though empannelled to try a capital offence, and though (1) 1 Root, 134, et vide 429, and 2 Root, 451, (2) 4 Cowen, 26. they separate contrary to the directions of the court, will not of itself be a sufficient cause for setting aside the verdict. But if there be the least suspicion of abuse, the verdict should be set aside; and for this cause a new trial was granted. And in Brant v. Fowler.(1) After the judge had concluded his charge, several of the jurors requesting permission to go out, the judge told them they could go accompanied by an officer. One of them misunderstanding the charge of the judge, while out, separated himself from the officer, and drank about one-third of a gill of brandy. There was a verdict for the defendant, and on motion of the plaintiff to set aside the verdict for irregularity, the affidavit of the juror was produced, showing his mistake ; and that he drank this small quantity of brandy to check a diarrhoea, which he had incurred by drinking new cider. The affidavit of another juror was also produced, showing that the juror who had drank joined them for deliberation, in due season; conducted himself with great propriety; was chosen foreman, and delivered their verdict. But Per Curiam. "We cannot allow jurors thus of their own accord to drink spirituous liquor while engaged in the course of a cause. We are satisfied that there has been no mischief; but the rule is absolute, and does not meddle with consequences, nor should exceptions be multiplied. We have set aside verdicts in error for this cause, even where the parties consented that the jury should drink. The People v. Douglass, though a criminal cause, is in point, for the principle of this motion, which must be granted." So when the jurors have resorted to artifice to get rid of their confinement. As in Oliver v. The Trustees of Springfield.(2) The jury told the constable they had (1) 7 Cowen, 562, (2) 5 Cowen, 283, agreed, and dispersed. The next morning they delivered a paper, purporting to contain their verdict, which was, on opening it, found to contain these words: "The jurors, after due deliberation, do not agree;" and signed by all the jurors. Before the jury re-assembled to deliver the paper, some of them were seen in a bar-room, where the cause was much talked of. On the paper being delivered, the judge, after explaining certain testimony, as to which the jury disagreed, directed them to retire and reconsider the case, which they did, and afterward returned a verdict for the defendants. Upon motion for a new trial, the court observe: "In the cases cited of verdicts sustained, notwithstanding the separation of the jury, there was no suspicion of abuse; and indeed it appeared affirmatively, that there was nothing that followed their separation, which could be injurious to the party seeking to get rid of the verdict. The present case is far different. After practising a fraud on the constable, several of the jurors are found in a public bar-room, where the subject of the suit is much talked of in their presence; and it is not pretended that they did not listen to the conversation, and might not have been influenced by it. This is not to be tolerated. Here is not only suspicion of abuse, (and we have uniformly held, that the slightest suspicion of this sort will vitiate the verdict,) but we think the circumstances of this case amount to positive abuse. They evince that want of respect in the jury, to the obligations imposed upon them by their situation, which cannot be sanctioned consistently with the rights of parties. They procured their separation by a very unbecoming artifice; thus placing themselves in a situation to be practised upon, and influenced by conversation out of doors. Such conversation was carried on in the presence of some of them. Indeed, it is difficult to see how the suspicions, which attach to this case, could be explained away. The motion must be granted." 9. If the jurors, unable to agree, resort to the determination of chance, it will avoid the verdict. Thus it has been held to cast or draw lots, to shuffle half-pence in a hat, or play cross and pile, to find a verdict, will avoid it. In Mellish v. Arnold,(1) an action against an officer for a seizure absque probabili causa. A new trial was granted because the jury threw up cross or pile, whether they should give the plaintiff three hundred pounds or five hundred pounds damages, and the chance of five hundred pounds came up. So, in Parr v. Seames.(2) Motion to set aside the verdict. The jurors, upon differing in opinion, had agreed to be determined by hustling half-pence in a hat; if the major part came up heads, the verdict was to be for defendant. This matter not appearing, upon the oath of any of the jurors, but by affidavit, that two of them had confessed the same, the court, upon the first motion, ordered the entry of final judgment to be stayed for a few days only, to give plaintiff an opportunity to procure affidavits from some of the jurors. But it afterwards appearing that the jurors were fearful to make affidavits, whereby to accuse themselves, and Chapple citing a case in Salkeld, Dent v. The Hundred of Hertford, the court entertained the motion, and enlarged the rule till next term. So, in Hale v. Cove.(3) The jury having sat up all night, agreed in the morning to put two papers into a hat, marked P. and D., and so draw lots. P. came out, and they found for the plaintiff, which, although it happened to be according to the evidence and the opinion of the judge, yet, upon motion for a new trial, it was agreed, that the verdict must be set aside.(4) Upon the same principle, if the jury should agree (2) Barnes, 438. (1) Bunb. 51. (3) 1 Str. 642. 1 New Rep. 326, |