
    * Joseph Demund and Stinson Demund against John Gowen.
    ON CERTIORARI.
    Misconduct of jury, 
    
    THE conduct of the jury, was assigned as a reason for the reversal of this judgment; and by certain affidavits, taken under a rule of the court, it appeared ; that after the jury retired to consider of their verdict, and before the verdict was rendered, and without the consent of the defendant, some of the jurors were out of the room, at the bar of the tavern, and got spirituous liquor; that the tavern keeper and person concerned as attorney for the plaintiff, handed in, at the window, to the jury, liquor and victuals; that the bystanders conversed with the jurors, at the door and windows; and the justice and one of the witnesses went into the room, to the jury, in the absence of the defendants and their attorney. 
    
    
      There was verdict and judgment for the plaintiff, Gowen.
    
    
      Studdiford, attorney for plaintiff in certiorari.
    
    Ewing, for defendant.
    If the jury eat or'drink at their own expense, before agreeing on their verdict, it is a misconduct for which they are punishable, but the party is not to lose the benefit of their verdict. If they eat or drink, at the expense of the party, the verdict must be set aside. By the affidavits, all the alleged misconduct may have taken place, after they had agreed.
    
      
      
         Shepherd vs. Baylor, post 827. Sloan vs. Harrison, Coxe 123. Drake vs. Newton, 3 Zab. 111. Eakin vs. Morris Canal, 4 Zab. 538. Tomlin ads. Cox, 4 Har. 76. Phillipsburg Bank vs. Fulmer, 2 Vr. 53. Hutchinson ads. Coal Co. 7 Vr. 24. State vs. Doty, 3 Vr. 403. See Clark vs. Cole, Pen. *278. Crane vs. Sayre, 1 Hal. 110. Oram vs. Bishop, 7 Hal. 153.
      
    
    
      
      
         Perrine vs. Van Note, 1 South. 146.
      
    
   By the court

Such conduct is highly reprehensible; the verdict is not good ; the judgment must be reversed.  