#### John Y. Sawyer, Plaintiff in Error, v. Benjamin Stephenson, Defendant in Error.

ERROR TO MADISON.

Granting new trials, rests in the sound discretion of the court, and as a general rule, the refusal to award one should not be considered as error.

An affidavit of a juror who tried the cause, may be received to prove improper conduct on the part of the jury.

On a motion for a new trial in the court below, the defendant offered the affidavit of one of the jurors who tried the cause, setting forth, that one of the jurors, who was sworn as a witness in the cause, gave in the jury room, new, other and additional testimony, by reason of which, deponent was induced to give a verdict for the plaintiff, when, if it had not been for such testimony, so given by one of their own body, he, deponent, would have found a verdict for the defendant. The court granted the defendant a new trial. To reverse which opinion, a writ of error was prosecuted.

Opinion of the Court. Granting new trials, rests hi the sound discretion of the court before which the trial is had, and as a general rule, a refusal to grant a new trial, should not be considered as error; unless it appears manifest, that justice is rendered thereby more precarious. (1)

The first question for consideration is, would the facts disclosed by the affidavit, have justified the court in awarding a new trial, if they had been sworn to by a person not of the jury ? We are satisfied they would, and although new trials should be granted very cautiously for irregular and improper conduct on the part of the jurors in their retirement, when such misconduct is disclosed by an affidavit made by one of the body; yet being fully satisfied of the truth of the facts disclosed in this manner, as also that the juror has not been tampered with, and improperly influenced to swear falsely, and that no such verdict would have been found, if the jury had not listened to such improper testimony, the court would be as much bound to award a new trial on such affidavit, as if the truth of the facts therein contained, had been disclosed, *25by one not of the jury. The court, therefore, not being able to discover that the case under consideration is at variance with the principles here laid down, are of opinion that the court below acted in a new trial on that affidavit, and the must be affirmed,(a) (1)

Judgment affirmed.

(1)

At the time of the rendition of this decision this was unquestionably correct, and has been affirmed in the following cases. Cornelius v. Boucher, post. Clemson v. Kruper, id. Collins v. Claypole, id. Street v. Blue, id. Adams et al. v. Smith, id. Vernon et al. v. May, id. Littleton v. Moses, id. Harmison v. Clark, 1 Scam., 131. But by the act of the legislature of 1837, Purples' Statutes, p. 824. Scales’ Comp., p. 264, sec. 23, it is provided that exceptions may be taken to the opinion of the court in overruling a motion for a new trial. Smith v. Shultz, 1 Scam., *25 491. This, however, was held to apply only to civil cases. Pate v. People, 3 Gilm., 645. Holliday v. The People, 4 Gilm., 111. Baxter v. The People, 3 Gilm., 368. Martin v. The People, 13 Ills., 341. And there was no similar statute applicable to criminal trials until in 1857, when an act was passed, giving the same right to except for a refusal to grant a new trial in criminal as in civil cases. Laws of 1857, p. 103. Scales' Compl., p. 1216.

But the granting of a new trial even since the passage of the act making it eiror to refuse one has never been held a sufficient ground for an exception. Cornelius v. Boucher, post. Hill v. Ward, 2 Gilm., 292. Brookbank v. Smith, 2 Scam., 78.

(a)

The refusal of the court to grant a new trial is not a matter for which a writ of error lies. Barr v. Grats, 4 Wheat., 213. 5 Cranch, 11 ibid. 187. 7 Wheat., 248.

The affidavits of jurors to impeach a verdict can not be received. Dana v. Tucker, 4 Johns., 487. Forrester §c. v. Guard, Siddal, & Co., post.

(1)

This, if not overruled, is very strongly doubted in the following cases. Forester et al. v. Guard et al., post. Browder v. Johnson, id. Smith v. Eames, 3 Scam., 81. And we think it is now safe to say that the affidavit of a juror ought not to be admitted to show what transpired in the jury room, or by what process of reasoning they came to their conclusions.

But the affidavit of a juror, on a point entirely disconnected with his acts, or the motives for his conduct as a juror, as that he is not an alien, is not objectionable on the grounds on which it has been decided that a juror’s testimony can not be received to impeach his verdict. Guykowski v. The People, 1 Scam., 482.

Affidavits of jurors can not be received to impeach their verdict, except in cases where a part of them swear they never consented to the verdict; but a verdict maybe supported bysuch affidavits. Smith v. Eames, 3 Scam., 76. Martin et al. v. Ehrenfels, 24 Ills., 187.