rendered, or whether it is to show that a contract, to which he was a party, was fraudulent, or any other transaction in which he was concerned was affected by fraud, or to say that he was guilty of a crime as principal, or as an accomplice, or guilty of a misdemeanor; and my opinion is, that in all these cases, the party offering himself as a witness is not rendered incompetent by his own moral turpitude, whether it is deduced from the participation of the agency in, or whether it is deduced from other and different causes, so that he has the use of his reason and such religious belief as to feel the obligation of an oath, and has not been convicted of any infamous crime, and is not influenced by interest: See Phil. Ev. 333. And in England,

at this day, a man may come forward as a witness in all the above cases, except as a juror to impeach his verdict, which we have seen does not constitute the rule here; and which is not the better opinion in my humble judgment, as it is in opposition to all the other analogies of law.

From this view of the law, these affidavits were properly receivable by the court, and are competent evidence on the point to which they were adduced. The remaining point is, what credit they are entitled to. And here I must premise that all evidence is subject to be weighed by the tribunal to which it is offered, if it is authorized to examine it, and to act upon it, whether it be a jury or a court. It does not follow because a matter is sworn to by affidavit, that therefore it is to be taken as true, either in whole or in part; its evidence is to be examined, and the court is carefully to exercise its judgment on the matter. No case requires a more cautious and deliberate exercise of the credit-giving power, than that on which we are now called to decide, namely, the affidavit of jurors to show the ground on which their verdict was given; and this for the purpose of setting this verdict aside. A verdict under such circumstances is to be approached with great caution and great circumspection, but it is not altogether intangible, and beyond the reach of the redressing power of the court; if it were, I for one would think it a defect in the administration of the justice of the country, and a defect in the policy of the law. It is not to be forgot on this part of the case that this verdict naturally and necessarily points to something not common, because it is itself uncommon; it is perfectly sui generis; and no instance, as it is said at the bar, occurs in our courts of the like kind. When we open the affidavits of the jurors, the matter is explained and understood; we see it well and satisfac

torily accounted for; and when thus accounted for by the affidavits, it in its turn reflects back strength upon them, and the whole taken in connection forms a case not to be resisted if the jurors are respectable. On this point I must suppose the circuit judge was well informed. Brasher is not questioned. Shelton and McBride are put on the same footing, and spoken most respectfully of.

From this view of the case, it is the opinion of this court, that the circuit court erred in not granting a new trial upon the matter disclosed by the verdict and affidavits of the jurors.

Judgment reversed, and new trial granted.

JURORS-AFFIDAVITS OF, TO IMPEACH VERDICT.-The rule adopted in the principal case, that affidavits of jurors, who try a criminal case, may be used on motion for a new trial, to show such misconduct on their part as will vitiate their verdict, has been approved and followed in a number of subsequent cases in Tennessee, and is now the settled law of that state: Booby v. State, 4 Yerg. 111; Hudson v. State, 9 Id. 408; Elledge v. Todd, 1 Humph. 43; Bennett v. Baker, Id. 399; Cochran v. State, 7 Id. 544; Luster v. State, 11 Id. 169; Nelson v. State, 10 Id. 518; Galvin v. State, 6 Coldw. 283. The tendency, however, of the later decisions, is rather to limit than to extend the rule. Thus in Hudson v. State, 9 Yerg. 410, the court, in considering this question, said: "Although it has been determined that the affidavits of jurors may be made the foundation of motions for new trials, yet it is a dangerous principle, and we are not disposed to extend it one step beyond what it has already been carried." A similar rule to the one adopted in Tennessee, prevailed in England at an early date: Metcalfe v. Deane, Cro. Eliz. 189, approved in Vicary v. Farthing, Id. 411; S. C., Moore, 451; Mellish v. Arnold, Bunb. 51; Parr v. Seames, Barnes Notes of Cases, 438; Lord St. John v. Abbot, Id. 441; Philips v. Fowler, 2 Com. 525; S. C., Barnes Notes of Cases, 441; Norman v. Beamont, Willes, 484; S. C., Barnes Notes of Cases, 453; see Aylett v. Jewel, 2 W. Bl. 1299; also in New York and Massachusetts; but a contrary rule, as will hereafter appear, has since been adopted in those states: Smith v. Cheetham, 3 Cai. 57; Grinnell v. Phillips, 1 Mass. 530. In Iowa, in the early decisions, affidavits of jurors were held inadmissible to impeach their verdict: Lloyd v. McClure, 2 G. Greene, 139; Abel v. Kennedy, 3 Id. 47; Forshee v. Abrams, 2 Iowa, 571; Cook v. Sypher, 3 Id. 485; where it was held that such affidavits could not be so used, notwithstanding section 1810, of the code of 1851, of that state, which provided, "that in applications for new trials, the affidavits of jurors may be taken and used in relation thereto;" and that that section "was only designed to declare the law as more recently settled by the adjudications of the English, and many, and we may say most, of the courts in this country; but was not designed to introduce the dangerous practice of allowing jurors to impeach their own verdict, to the extent here attempted." In a number of subsequent cases in that state, it was held that affidavits of jurors might be received, to show the basis upon which their verdict was found, but not to impeach it: Manix v. Maloney, 7 Id. 81; Ruble v. McDonald, Id. 90; Schanler v. Porter, Id. 482; Butt v. Tuthill, 10 Id. 585. In Stewart v. B. & M. R. Co., 11 Id. 62, it was decided that "while such affidavits may not be received by the court for the purpose of impeach. ing their verdict, yet under the provisions of the code, section 1810, such

affidavits may be considered as showing any misconduct upon the part of the jury in the finding of their verdict." But see State v. Accola, 11 Id. 246; Shepherd v. Brenton, 15 Id. S4; Davenport v. Cummings, 15 Id. 219.

With the authorities in this unsettled state, this question was again presented to the supreme court of Iowa, and was re-examined at length in Wright v. Ill. and Miss. Tel. Co., 20 Iowa, 195. That case arose after the laws had been revised in that state (revision 1860), and by which section 1810, above cited, was entirely omitted. The court, after an extended exam. ination of the decisions in that state prior to that time, as well as those in other places, adopted a rule, which, it is believed, is peculiar to that state alone. Cole, J., speaking for the court, said: "While we do not feel entirely confident of its correctness, nor state it without considerable hesitation, yet we are not without that assurance, which, under the circumstances, justifies us in laying down the following as the true rule: That affidavits of jurors may be received for the purpose of avoiding a verdict, to show any matter occurring during the trial, or in the jury-room, which does not essentially inhere in the verdict itself, as that a jury was improperly approached by a party, his agent or attorney; that witnesses or others conversed as to the facts or merits of the cause out of court and in the presence of jurors; that the verdict was determined by aggregation and average, or by lot, or game of chance, or other artifice, or improper manner; but such affidavit, to avoid the verdict, may not be received to show any matter which does essentially inhere in the verdict itself, as that the juror did not assent to the verdict; that he misunderstood the instructions of the court, the statements of the witnesses, or the pleadings in the case; that he was unduly influenced by the statements or otherwise of his fellow jurors, or mistaken in his calculations or judgment, or other matter resting alone in the juror's breast.

"That the verdict was obtained by lot, for instance, is a fact independent of the verdict itself, and which is not necessarily involved in it. While every verdict necessarily involves the pleadings, the evidence, the instructions, the deliberation, conversations, debates, and judgments of the jurors themselves, and the effect or influence of any of these upon the juror's mind must rest in his own breast, and he is and ought to be concluded thereon by his solemn assent to and rendition of the verdict (veredictum-a true declaration). To allow a juror to make affidavit against the conclusiveness of the verdict, by reason of and as to the effect and influence of any of these matters upon his mind, which, in their very nature, are, though untrue, incapable of disproof, would be practically to open the jury-room to the importunities and appliances of parties and their attorneys, and, of course, thereby to unsettle verdicts, and destroy their sanctity and conclusiveness.

"But to receive the affidavit of a juror as to the independent fact that the verdict was obtained by lot, or game of chance or the like, is to receive his testimony as to a fact, which, if not true, can be readily and certainly disproved by his fellow-jurors; and to hear such proof would have a tendency to diminish such practices and to purify the jury room, by rendering such improprieties capable and probable of exposure, and consequently deterring jurors from resorting to them. The ground upon which affidavits of jurors were excluded in the case of Vaise v. Delaval, 1 T. R. 11 (which is the leading case, and contrary to prior decisions), is not more than satisfactory. Lord Mansfield said: 'The court can not receive such an affidavit from any of the jurymen themselves, in all of whom such conduct is a 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 transaction through a win dow, or by some such other means.'

While it is certainly illegal and reprehensible in a juror to resort tc lot or the like to determine a verdict, which ought always to be the result of a deliberate judgment, yet such resort might not evince more turpitude, tending to the discredit of his statement, than would be evinced by a person not of the jury, in the espionage indicated by Lord Mansfield, and necessary to gain a knowledge of the facts to enable him to make the affidavit. At all events, the superior opportunities of knowledge and less liability to mistake, which the juror has over the spy, would entitle his statement to the most credit. And if, as is universally conceded, it is the fact of improper practice which avoids the verdict, there is no reason why a court should close its ears to the evidence of it from one class of persons, while it will hear it from another class, which stands in no more enviable light and is certainly no more entitled to credit.

"Nor does the consideration of the affidavits of jurors for the purposes stated contravene sound public policy. It is true, however, that public pol icy does require that when a juror has discharged his duty and rendered a verdict, such verdict should remain undisturbed and unaffected by any subsequent change of opinion upon any fact or pretext whatever; and therefore, a juror should not be heard to contradict or impeach that which, in the legitimate discharge of his duty, he has solemnly asseverated.

"But when he has done an act entirely independent and outside of his duty, and in violation of it and the law, there can be no sound public policy which should prevent a court from hearing the best evidence of which the matter is susceptible, in order to administer justice to the party whose rights have been prejudiced by such unlawful act.

"In other words, public policy protects a juror in the legitimate discharge of his duty, and sanctifies the result attained thereby; but if he steps aside from his duty, and does an unlawful act, he is a competent witness to prove such fact, and thereby prevent the sanction of the law from attaching to that which would otherwise be colorably lawful."

In Fuller v. C. & N. W. R. R. Co., 31 Iowa, 211; and Cowles v. Chicago R. I. & P. R. R. Co., 32 Id. 515; Garretty v. Brazell, 34 Id. 104; Morris v. Howe, 36 Id. 493; Bingham v. Foster, 37 Id. 341; Wright v. Ill. & M. Tel. Co. was approved and followed. Also in Perry v. Bailey, 12 Kan. 539, where

a similar rule was adopted. See Koester v. City of Ottumwa, 34 Iowa, 41; State v. Woodson, 41 Id. 425. The rule, as thus adopted by the supreme court of Iowa, seems to be the one best adapted to secure the impartial administration of justice by jury trials. It commends itself for the protection it affords litigants against a verdict obtained by unlawful means, and at the same time it enshrines the deliberations of juries in the jury room with that mantle of secrecy which the policy of the law has always designed to secure, in order that a verdict may be the united judgment of all sworn to try the cause. Much as we might be inclined, however, to adopt this as the better rule, were we permitted to decide, we must yield our opinions to the great weight of modern authority, which is undoubtedly opposed to the admission of affidavits of jurors in any case to show such misconduct on their part as will vitiate their verdict: Vaise v. Delaval, 1 T. R. 11; Jackson v. Williamson, 2 Id. 281; Owen v. Warburton, 1 New, 326; Rex v. Wooller, 2 Stark. 111; Straker v. Graham, 4 M. & W. 721; Burgess v. Langley, 5 Mac. & G. 722; S. C., 44 Eng. Com. L. R. 379; Bentley v. Fleming, 1 Man. G. & S. 382; S. C., 50 Eng. Com. L. R. 479; Raphael v. Bank of England, 33 Eng. Law & Eq. 276; Davis v. Taylor, 2 Chit. 268; S. C., 18 Eng. Com. L. R. 627; Edmiston v. Garrison, 18 Wis. 594; Shaw v. Fisk, 21 Id. 368; Robbins v. Windover, 2 Tyler, 11; Harris v. Huntington, Id. 147; Thompson v Com.. 8 Gratt. 637,

650; Bull's case, 14 Id. 613; Read v. Com., 22 Id. 924; Little v. Birdwell, 21 Tex. 612; Johnson v. State, 27 Id. 769; Reaves v. Moody, 15 Rich. (S. C.) 312; Farrer v. State, 2 Ohio St. 54; Handy v. Prov. Mutual Ins. Co., 1 R. I. 400; Tucker v. Town Council, 5 Id. 559; Underhill v. Van Cortlandt, 2 Johns. Ch. 349; People v. Carnal, 1 Park. (N. Y.) 256; Wilson v. People, 4 Id. 619; Dalrymple v. Williams, 63 N. Y. 363; S. C., 20 Am. Rep. 544; Williams v. Montgomery, 60 Id. 648; Hutchinson v. Consumers' Coal Co., 7 Vroom, 24; State v. Stewart, 9 Nev. 120; Cook v. Castner, 9 Cush. 266; Bridgewater v. Plymouth, 97 Mass. 382; Woodward v. Leavitt, 107 Id. 453; S. C., 9 Am. Rep. 49; Paschal St. Martin v. Desnoyer, 1 Minn. 159; Knowlton v. McMahon, 13 Id. 386; State v. Stokely, 16 Id. 282; State v. Underwood, 57 Mo. 40; Ter. of Dakota v. Taylor, 1 Dakota, 479; Forester v. Guard, 12 Am. Dec. 141, note, 142, where this question is considered, and the late authorities cited. In Graham & Waterman on New Trials, vol. 3, p. 1428, the reasons why the affidavits of jurors shrould not be received to impeach their verdict are stated as follows:

1. Because they would tend to defeat their own solemn acts under oath. 2. Because their admissions would open a door to tamper with jurymen after they had given their verdict.

3. Because they would be the means, in the hands of a dissatisfied juror, to destroy a verdict at any time after he had assented to it.

These reasons, considered in connection with the fact that it always has been the policy of the law to keep the deliberations of juries secret, and to allow jurors to arrive at their own conclusions without the fear of being afterwards compelled to disclose or to have disclosed the reasons upon which such conclusions were based, are generally advanced by the later cases to show that such affidavits should not be received. In Cook v. Castner, 9 Cush. 278, Shaw, C. J., said: "We think the judge was right in rejecting evidence of the alleged partiality and misconduct of a juror in the jury-room, by the testimony of the juror himself, or of the other jurors. It is a rule founded upon obvious considerations of public policy, and it is important that it should be adhered to, and not broken in upon to afford relief in supposed hard cases. A verdict, as the name imports [veredictum], is taken, in theory of law, to be absolute truth, and it is important that it be so regarded. All communications among the jurors are confidential; they are intended to be secret, and it is best they should remain so. It is very probable, indeed it is almost inevitable, that many things should be said and views expressed by individual jurors, which not only have no influence on others, but which they themselves do not ultimately adhere to and act upon." So in Dalrymple v. Williams, 63 N. Y. 363; S. C., 20 Am. Rep. 544, similar reasons are advanced by Allen, J.: "There are reasons of public policy, why jurors should not be heard to impeach their verdicts, whether by showing their mistakes or their misconduct. Neither can they properly be permitted to declare, with a view to affect their verdict, an intent different from that actually expressed by the verdict as rendered in open court. In early times the pains and penalties visited upon jurors for false verdicts furnished an additional reason why they should not be allowed to impeach them. But the rule is well established, and at this day rests upon well-understood reasons of public policy as connected with the administration of justice, that the court will not receive the affidavits of jurymen to prove misconduct on their part, or any act done by them which could tend to impeach or overthrow their verdict. This rule excludes affidavits to show mistake or error of the jurors in respect to the merits, or irregularity or misconduct, or that they mistook the effect of their verdict, and intended something different."