#### Forester and Funkhouser, Appellants, v. Guard, Siddell & Co., Appellees.

APPEAL FROM GALLATIN.

The statements of jurors ought not to be received to impeach their verdict.

An affidavit, setting forth the discovery of new testimony, should state the name of the witness, and also the facts he can prove.

Opinion of the Court by

Chief Justice Reynolds.

In this case the only error relied upon is, that the court below erred in granting a new trial. There were four reasons assigned for a new trial: 1. The verdict was against law and evidence: 2. The discovery of new testimony: 3. The verdict of the jury was predicated upon the statements of the jurors in relation to the controversy while in the jury room: 4. One of the jurors separated from the jury while deliberating.

The fact that the verdict was predicated upon the statements of the jurors after they withdrew, is disclosed by the affidavit of one of the plaintiffs below, founded upon the confessions of one of the jurors. This the court think im*75proper. The statements of jurors ought not to be received to impeach their verdicts, (a) (1)

The affidavit, disclosing the discovery of material testimony, does not state the name of the witness, nor the facts he could prove. • It is therefore insufficient. An affidavit should state the facts, that the court may judge of their materiality. If tho new trial had been granted upon the affidavit alone, the court would say it was improperly granted, but as there were other grounds, to wit, that the verdict was against evidence, the court can not say there was error— on the contrary, the facts in the case seem to have warranted the interposition of the court. The judgment is therefore affirmed.

Judgment affirmed.

(a)

Contra, Sawyer v. Stevenson, ante, page 24.

(1)

See note 2, to the case of Sawyer v. Stevenson, ante, page 24,