Party approaching juror on subject of trial.

a good cause, he will still be entitled to a verdict upon another trial. We cannot be too strict in guarding trials by jury from improper influence. This strictness is necessary to give due confidence to parties in the results of their causes; and every one ought to know that for any, even the least, intermeddling with jurors, a verdict will always be set aside."

In Blaine v. Chambers,(1) there was a verdict for the plaintiff, and a motion for a new trial One of the grounds was that a 'brother-in-law of the lessor of the plaintiff conversed with one of the jury concerning the cause, before and after he was sworn, who had declared he derived more information from him than from the court or jury. A new trial was ordered upon another ground. Tilghman, Ch. J., however, takes occasion to observe upon this objection. "It would be an injury to the administration of justice, not to declare that it is a gross misbehavior for any person to speak to a juryman, or for a juryman to permit any person to converse with him, respecting the cause he is trying, at any time, after he is summoned and before the verdict is rendered." And,

Per Yeates, J.-"If the truth of the facts was correctly stated in the affidavits, the person who attempted to labor *the jury merited the most severe punishment, as such [*51] conduct poisons the first sources of justice."

So, in Ritchie v. Halbrooke.(2) The verdict was for the plaintiff. The defendant moved for a new trial, upon grounds appearing in the opinion of the court, delivered as follows by Tilghman, Ch. J. "The verdict in this case having been for the plaintiff, a motion has been made on the part of the defendant for a new trial. In support of this motion, several matters have been offered both of law and fact; but there is one which demands particular attention. An affidavit has been produced of one of the jurors, by which it appears that a difficulty in the plaintiff's account having been mentioned after the jury had received the charge of the (1) 1 Serg. & Rawle, 169. (2) 7 Serg. & Rawle, 458.

Party approaching juror on subject of trial.

court, and retired to consider of their verdict, the foreman of the jury declared that the plaintiff had satisfied him, with regard to that difficulty, in a conversation which he had with him out of court, and after the jury had been sworn. The plaintiff's counsel contended that the court should pay no regard to this affidavit, because it is impolitic to permit jurors to relate what passed between themselves, and for this they relied on the case of Cluggage v. Swan (1) That was a very different case from the present. The jury drew lots for the verdict and the court refused to hear the affidavit of one of the jurors to prove it. Whether jurors should be permitted to disclose their own misconduct, has been a vexata questio. I declined giving any opinion on that point, in Cluggage v. Swan, because the case did not require it. There was enough to set aside the verdict on other grounds. But my brethren, the late Judges Yeates and Brackenridge, certainly were decidedly of opinion that the affidavit of the juror should not be regarded. But it never has been, and, I trust, never [*52] will be doubted that the affidavit of a juror *shall not be received to prove misbehavior of one of the parties to the suit. The holding of conversations with jurors after they are sworn, is a practice against which the court should set its face resolutely, and put it down at once. It must be known that a party may lose, but cannot gain by a conversation with a juror after he is sworn, unless it be open, and by permission of the court. If the verdict should be against him, it would stand; if for him, it will be set aside."

So, in Cottle v. Cottle.(2) Where the prevailing party in a cause tried by jury, previous to the trial, but during the same term, conveyed one of the jurors several miles in his own sleigh, to the house of a friend, where he was hospitably entertained for the night; the verdict was for this reason set aside.

(1) 4 Binn. 150.
(2) 6 Greenl. 140.

Neglect to correct improper attempt to influence jury.

III. Neglect to correct improper attempt to influence jury.

3. But if insidious attempts of this kind be known to, and it be in the power of, the other party to have it corrected, and he neglect, the objection will not avail to set aside the verdict. So ruled in Herbert v. Shaw.(1) The case was this: Upon an issue joined in an action between Lady Herbert, daughter of the Duke of Leeds, and the Fishermen of Milton, a letter was written by the Duke of Leeds to every particular jury man, wherein he desired their appearance at the trial, and concluded his letter in these words: "which I shall take as a great obligation, particularly from yourself, and shall be glad of an occasion to show how much I am, sir, your humble servant." Upon which the defendant. moved for a new trial. It was argued against the motion, that it could not be maintenance in the duke, being father to the plaintiff, and that it was the defendant's neglect, in not discovering the letter before the trial, and making his challenge, it appearing he knew of it *before. Powell, J., said he re- [*53] membered a case in the Court of Common Pleas, where a stranger wrote to a juryman to consider that the plaintiff was a poor man; for which a new trial was granted and the writer taken up and committed; but here this seems only an invitation, and an endeavor for a full jury to appear, in order to avoid a tales, and a man may write in behalf of his daughter. But the doubt was as to the compliment here paid to the jurymen, by so great a man as the Duke of Leeds, and he thought the fact hardly justifiable, even in a father. And after the case had been twice argued, it was resolved by Holt, Ch. J., Powell, Powys and Gould, Justices, that no new trial should be granted; because the defendant having notice of such a letter long before the trial, might have moved for a trial at bar, which the other side had offered to consent to; but taking the letter as it is in itself, it is of dangerous consequence, for it is a temptation to the jury to be partial, and takes off their indifferency. But again, if a party have cause of challenge, and know of it time enough before the trial, if he

(1) 11 Mod. 118.

Indirect measures to prejudice jury.

do not challenge, he shall not have a new trial: contra, if he has not timely notice of it. The party himself cannot give a juryman money to appear, for it cannot be supposed that he will hire him to give a verdict against himself.

So, in Suel v. Timbrel.(1) On a motion for a new trial it was held, that desiring a juror to appear in the cause, which was between a miller and a baker, was no ground to set aside a verdict. And the court remembered the case of the Duke of Leeds, who wrote a letter to a juror, desiring him to attend, "and you will oblige your humble servant Leeds;" which was thought no reason to set the verdict aside.

[*54]

*IV. Indirect measures to prejudice jury.

4. If indirect measures are resorted to, to prejudice the jury, although the party may disclaim all knowledge and participation, a new trial will be granted.

In Coster v. Merest,(2) Vaughan, sergeant, had obtained a rule nisi for a new trial in this case, on an affidavit which stated that handbills, reflecting on the plaintiff's character, had been distri. buted in court at the time of the trial, and had been seen by the jury. Lens, sergeant, who showed cause against the rule, offered affidavits from all the jurymen, that no such placard had been shown to them; and though he admitted that, in general, affidavits on the subject of the cause could not be received from a juryman, yet he urged that, as in the present case, no answer could be given to the plaintiff's statement, except by such affidavits, they ought to be received. But the court refused to admit. the affidavits, thinking that it might be of pernicious consequence to receive such affidavits in any case, or to assume that a jury had been unduly influenced: and though the defendant denied all knowledge of the handbills, they made the rule absolute.

(1) 1 Str. 643.

Indirect measures to prejudice jury.

In Spenceley v. Willot (1) It appeared the plaintiff had made and published, and distributed about the court and the hall, a statement of his case, at and before the trial. The defendant moved for a rule nisi on two grounds, the rejection of evidence intended to impeach a witness on a fact wholly irrelevant, and the distribution of copies of the case. The court refused the motion on the first, but granted a rule nisi on the second ground alone.

So, if artifice or trick be practiced to prevent the attendance of witnesses.

Thus, in Davis v. Daverill, (2) in a motion for a new trial, on a suggestion, that the defendant arrested and imprisoned *one of the plaintiff's witnesses until the trial was [*55] over, it was adjudged to be good cause of granting a new trial.

And a verdict was set aside where a material witness for the defendant concealed himself in the plaintiff's house. Montpesson v. Randle, thus noted by Buller. "A material witness for the defendant concealed himself in the plaintiff's house to avoid being served with a subpoena, by which means the plaintiff obtained a verdict, but the court set it aside without costs, it being unreasonable for the plaintiff to carry the cause down to trial when she knew the defendant could not make a defence."(3)

But it would appear, that if a party were libelled by a mere stranger, it would be sufficient cause for postponing the trial, but not for setting aside the verdict. So ruled in Rex v. Burdelt,(±) Rex v. Gray,(5) and The King v. Jolliffe.(6)

So, if means are adopted which have the effect of preventing witnesses from attending, that cannot be traced to the party or (1) 7 East, 108.

(2) 11 Mod. 141.

(3) Bull N. P. 328.

(4) 2 Salk. 645.

(5) 1 Burr. 510.

(6) 4 Term. Rep. 285.