
    MORROW against M’LENNEN.
    ON CERTIORARI.
    It appeared by the affidavit of Thomas Armstrong, Esq., one of the jurors, that while the jury who [*] tried the cause before the justice were out considering of their verdict, there was a diversity of opinion among the jurymen ; that those who were in favor of the plaintiff below, for whom the verdict was found, insulted those who were of a different opinion; that some of the jurors broke out of the room, notwithstanding the exertions of the constable to prevent it; that those of the jury who were for finding a verdict for the plaintiff below, got provisions and publicly eat it in an adjoining room, and refused to let the remainder of the jury have any part of it; that he himself was opposed to finding a verdict for the plaintiff, but being under the apprehension of being starved out, he consented to come in, but should not have found a verdict for the plaintiff had the jury been polled. These facts were in several respects, confirmed by the affidavit of the constable. The jury were out all night, it was in the morning when the provisions were obtained.
   Pennington, J.

It appears to me, that this was not only very disorderly and unwarrantable conduct on the part of some of the jurors, but that it was prejudicial to the defendant below, against whom the verdict was rendered, and that the judgment, for that cause, ought to be reversed, It may be proper here to observe, that although Mr. Armstrong bears the reputation of a very respectable worthy man, and I believe [670] very deservedly too, yet that his conduct in finding a verdict against his own opinion, under the circumstances of the case, cannot be justified; he was right to agree to come into court; but when he was in, he ought to have informed the court of the conduct of his fellow jurymen. The court, in that case, would have given relief, by fining the jurors who had misbehaved, and discharging the jury from further consideration of the cause, and ordering a new trial.

Judgment reversed.

Cited in Oram v. Bishop, 7 Halst. 153.  