the general rule of practice, yet as it was founded upon a matter disclosed to the defendant after the motion in arrest of judgment, and was made before judgment pronounced, the court were bound to receive it; and the fact as to the jurors determining by chance being undisputed, the verdict was set aside. We have seen that in Parr v. Seames,(1) judgment was stayed, and the rule nisi enlarged, to allow an opportunity to present the affidavits of the jurors.

In Aylett v. Jewell, (2) it seems to have been taken for granted, that the jurors should have made an affidavit. Motion for a new trial, on an affidavit of the defendant's attorney, that some of the jury had confessed to him that, not being able to agree in their verdict, they consented that all the juror's names, being separately written on papers and shook together in a hat, the first six, that should be drawn, should decide the verdict. They all agreed to conform to the opinion of the major part of those six; which was accordingly carried into execution, and so the verdict was produced. But there being no affidavit by the jurymen, or any other that was cognizant of this transaction, but merely this hearsay affidavit, the court (absent, De Grey, Ch. J.) thought it too dangerous to call a verdict in question, that had been so deliberately given, upon so loose and slight a suggestion, and so refused a rule to show

cause.

That this rule at one time prevailed here, is manifest, from the decision in Smith v. Cheetham.(3) Spencer, J. remarking on the admissibility of the affidavit of a juror which was received, observes: "On examining the English authorities, prior to the revolution, it appears to me that the information of jurors, as to what passed, may be received. The only decision to the contrary is in Keble.(4)

(1) Barnes, 438.

(3) 3 Caines, 57.

(4) Prior v. Powers, 1 Keb. 811.

(2) 2 W. Black. 1299.

The

But it is a very unintelligible and illy reported case. determinations in Bunbury(1) and Barnes, (2) show that the information of jurors may be received, and I cannot perceive any principle of law invaded by it." And Livingston, J., commenting upon the contrary rule, adopted by Lord Mansfield in Vaise v. Delaval,(3) remarks: "With proper submission to his lordship, it appears the best and highest evidence of which the case admits. If a man will voluntarily charge himself with a misdemeanor, why should he not be indulged? Are not criminals in England every day convicted and even executed on their own confession? and is not our state prison filled in the same way ?"

And it would appear from Price v. Warren, and Shobe v. Bell, above cited, that in Virginia, it is still the practice to read the affidavits of jurors, in support of a motion to set aside the verdict for the misconduct of the jury.

10. But the practice appears to be now generally settled, both in England and this country, to reject the affidavits of jurors inculpating themselves.

The leading case is Vaise v. Delaval.(4) Motion for a rule to set aside a verdict upon an affidavit of two jurors, who swore that the jury being divided in their opinion, tossed up, and that the plaintiff's friends won. Lord Mansfield, Ch. J.-" The court cannot receive such an affidavit from any of the jurymen themselves, in all of whom such conduct is a very high misdemeanor; but in every such case the court must derive their knowledge from some other source; such as from some person having seen the

(1) Bellish v. Arnold, Bunb. 51.
(2) Philips v. Fowler, Barnes, 441.
(3) Infra

(4) 1 Term Rep. 11.

transaction through a window, or by some such other means."

Not long after, the same rule was adopted in the English common pleas, in Owen v. Warburton.(1) In resisting the admission of the affidavits of the jurors, the case of Vaise v. Delaval was chiefly relied on, and in deciding the motion, Sir James Mansfield, Ch. J., observes: "We have conversed with the other judges upon this subject, and we are all of opinion that the affidavit of a juryman cannot be received. It is singular indeed, that almost the only evidence of which the case admits should be shut out; but, considering the arts which might be used if a contrary rule were to prevail, we think it necessary to exclude such evidence. If it were understood to be the law, that a juryman might set aside a verdict by such evidence, it might sometimes happen that a juryman, being a friend to one of the parties, and not being able to bring over his companions to his opinion, might propose a decision by lot, with a view, afterwards to set aside the verdict by his own affidavit, if the decision should be against him. We are therefore of opinion that there is no ground to support this rule."

The same rule has since obtained in this state. In Dana v. Tucker, (2) the court say: "The better opinion is, and such is the rule adopted by the court, that the affidavits of jurors are not to be received to impeach a verdict, but they may be admitted in exculpation of the jurors, and in support of their verdict."

This decision has been followed up in this court by Sargeant v. Deniston, (3) and by ex parte Caykendall,(4) taking the distinction between affidavits of jurors, impeaching and explaining their verdicts. In the latter case, where a mandamus was moved for, the court take occa

(1) 1 New Rep. 326. (3) 5 Cowen, 106.

(2) 4 Johns. Rep. 487.
(4) 6 Cowen, 53..

sion to observe, that "It is certainly well settled that the affidavits of jurors cannot be received to show a mistake in making up their verdict; and we never intended to detract from that rule in Sargeant v. Deniston. In that case the counsel advanced an erroneous rule of damages to the jury, which was not corrected in the charge of the judge. The jury were in this way led to adopt the rule. We considered these circumstances equivalent to a positive misdirection of the judge; and allowed the affidavits of jurors to be read, showing that they were in fact misled. It was impossible to make out what in truth operated, as a misdirection of the judge in any other way. Misdirection is a very usual ground for granting a new trial, and the case cited establishes merely, that a set of circumstances may amount to the same thing; and may be shown by the affidavits of jurors. Farther we did not mean to go; and we expressly disclaimed the idea of trenching on any of the cases, which had refused to hear the affidavits of jurors." And in The People v. Columbia Common Pleas,(1) the court again recognise the distinction, and confirm the rule, upon a review of all the cases, holding that affidavits of jurors cannot be received to show their impressions as to the effect of their finding, or that they intended something different from what they found by their verdict.

So, in Vermont, in Robbins v. Wendover.(2) Upon the question whether the affidavit of a juror should be admitted to show what passed, during the investigation of the case in the jury room, the court say" Upon this point the court are decidedly of opinion that the affidavit cannot be admitted to be read;" and add-"It would be of dangerous tendency to admit jurors by affidavit to detail these

(1) 1 Wendell, 297.

(2) 2 Tyler, 11.

deliberations of the jury room, to testify to subjects not perfectly comprehended at the time, or but imperfectly recollected. From a natural commisseration for the losing party, or a desire to apologise for the discharge of an ungrateful duty, after the juror had been discharged from office, he would be too apt to intimate, that if some part of the testimony had been adverted to, or something not in evidence omitted, his opinion would have been otherwise; whilst others of the panel, with different impressions or different recollections, might testify favourably for the prevailing party. This would open a novel and alarming source of litigation, and it would be difficult to say when a suit was terminated. The court consider it to be far better to establish it as a general rule, that the affidavits of jurors respecting the deliberations which led to their verdict, should in no civil cause be admitted."(1)

And in Pennsylvania, in Willing v. Swasey, (2) the court, adopting this rule, remark: "With respect to the deposition of the juror, we agree with Chief Justice Kent, in the case of Smith v. Cheetham, that the better opinion is, that it ought not to be read to show the irregularity of his own conduct, and differ altogether from Judge Livingston, who thinks the affidavit of a juror should be given in evidence to prove his guilt, like the confession of any other criminal. The affidavit, in such case, should be considered in a different light from the common confession of a criminal, and in my opinion it ought to be rejected, because it tends to defeat his own solemn act under oath, where third persons are interested. It ought to be rejected, because its admission would open a door to tamper with jurymen after they had given their verdict; it ought to be rejected, because it might be the means in the hands of a dissatisfied juror, to destroy a verdict at any time, after he

(1) Vide 3 Gil. & Johns. 473.

(2) 1 Browne, 123.