
    Pulaski, Jacks & Co. vs. W. W. Ward & Co.
    
    Where a new trial is granted, evidence, taken by commission and produced on the former trial, may be used on the new trial, whether it has, in the mean time, been kept by the clerk or the attorney.
    Where parties join in a commission to take the examination of witnesses, either party may use it on the trial. One party, therefore, cannot withdraw his cross interrogatories and the answers thereto, if the other party desires to use them.
    To support a motion for a new trial on the ground of misconduct of jurors, as a general rule, affidavits of such misconduct will not be heard, unless they were served on the jurors whose conduct is impeached, before the adjournment of the court at which the trial was had.
    A new trial on the ground of misconduct of jurors, in separating before they were agreed on their verdict, is discretionary with the court, and confined to cases of abuse, and is invariably refused where no injury has ensued. Per O’Neali, J.
    
      Before O’Neall, J. at Fairfield, July, Extra Term, 1845.
    The Report of his Honor the presiding Judge is, inter alia, as follows:
    “ This was an action of assumpsit to recover for goods sold and delivered. When the case was opened, the plaintiff proposed to read the depositions of William A. Wood-ruff, a witness residing in New York, who had been examined by commission, which had been read on both the former trials. Mr. Boyce objected to the reading of the same, as they had not been deposited with the clerk, as required by Walton vs. Bostick, 1 Brev. 162. It is true the court, in that case, in directing that a commission published, and the examination of the witnesses read on a former trial, might be read on the next trial, said that the evidence so to be read must be placed in the hands of the clerk. There was nothing in that case requiring any such decision ; it is, therefore, a mere obiter, and in practice has never since been attended to. There is no necessity for any such course of practice. For it is impossible that the depositions can be altered, or added to, without detection. And in the hands of the attorney, there is as little danger of any such thing as in the hands of the clerk. The depositions in this case had been twice carried up to the court of appeals, and could not, therefore, have been in the clerk’s office.
    “The defendants declined to read their cross interrogatories to this witness, and moved to withdraw them. The plaintiffs claimed that they should be read. I refused to allow the defendants to withdraw them, and allowed the plaintiffs to read them.
    “ I am not aware that there was any improper conduct on the part of the jury after they had retired ; nothing of that kind was brought to my knowledge ; and, from their intelligence and respectability, I should be slow to believe they acted improperly.”
    The verdict was for the plaintiffs.
    The defendants appealed, on the grounds, inter alia, as follows.
    1. Because the presiding judge erred in allowing plaintiffs to read the evidence taken by commission, as said evidence had not been deposited with the clerk of the court since the last trial, and had remained in the hands of plaintiffs’ attorneys.
    2. Because the presiding Judge erred in refusing leave to defendants to withdraw the cross interrogatories propounded by them on a previous trial, but allowed plaintiffs to use the same, against the wishes of defendants.
    3. Because the jury acted improperly after they had retired to consider of their verdict, some of the jury having left the jury-room and gone to the tavern late at night.
    Boyce, for the motion.
    Gregg, contra.
   Curia, per O’Neall, J.

The three grounds of appeal urged on the argument of this case here will be alone noticed ; the others are considered as abandoned.

1st. In Walton vs. Bostick, 1 Brev. 162, it was, as is observed in the report, resolved by the court that “ in all cases where a new trial is granted, the evidence taken by commission, and produced, or ready to be produced, on the former trial, or which would have been proper evidence on the former trial, if produced, shall be admitted upon the new trial, in the same manner, and liable to the same objections, and no other, to which the same would have been liable, if offered upon the former trial. But such evidence taken and used, or taken to be used, on the former trial, must be placed in the hands of the clerk of the court where the new trial is to be had.” As was observed in the report, if the point ruled, that the examination of the witnesses used on a former trial, must, to be used on a second trial, be deposited with the clerk, is relied upon as authority then it is plain, it can have no such effect, for it was not necessary to the case. The point arising in it, was whether the examination previously used could be read on the second trial. The judgment of the court that it could, is authority ; the qualification is a mere obiter. But if the whole resolution be taken as a rule of the court, then it is enough to say that the rule, although made in 180-2, was not published until 1839 ; and in that time, thirty-seven years, an inveterate practice has grown up, entirely disregarding the qualification that the examination used should be deposited with the clerk, to entitle the party to read it on the second trial. There is no abuse in the practice which would induce us to enforce the former qualification. Indeed, the practice now settled, that the examination of a witness, read on one trial, may be used on every successive new trial of the same case, no matter whether it is kept by the clerk or the attorney, is so convenient, and so little liable to abuse, that this is the first time in which it has been questioned, although Judge Bre-vard’s reports have been for six years in the hands of the profession.

2d. In the same case it was held that “ where parties join in a commission to take the examination of witnesses, and the commission is returned into the court, either party may move for publication, and neither can [object to it; both having an interest in the evidence thus procured ; and the court having possession of it, will allow both parties the benefit of it.” This resolution was necessary to a decision of a point arising in that case, and has ever since been followed. Under the rule established by it, it has always been allowed to either party to use the questions of, and answers to, his adversary.

3d. The 3d ground, that the jurors acted improperly, by some of them leaving the jury room after they had retired, and before they had agreed, must be next considered. It was objected here by the plaintiffs that the affidavits to support that ground could not be heard, inasmuch as they were not served on the juror whose conduct is challenged, until after the adjournment of the court; and it appears that such is the fact.

In Harding's case, 2 Bay, 267, and Key vs. Holeman, lb. 315, the court laid down the rule that they would not hear affidavits of the misconduct of a juror unless copies of such affidavits were served on him before the adjournment of the court. We will not say that this rule of practice is so inflexible that there may not be exceptions to it. But in a case like the present, where the verdict was rendered on Tuesday, and the court sat till Saturday, late in the day, there can be no reason for departing from the decision. The court, therefore, will not hear the affidavits. But to be sure that there had been no tampering with the purity of jury trials, we have looked into the affidavits, and find that the juror who left the room, did so to obtain water for one oí his fellows, and that his judgment, or that of his brethren, was not in any way affected by it. Still, we take this occasion to say, that the juror’s conduct vras very improper, and that if it had been brought to the view of the judge below, the juror, and the constable having the jury in charge, would have been severely punished.

It may not be improper here to say that I entirely approve of the rule stated in Graham on New Trials, ch. iv. § 6, p. 85, as to the effect of the misconduct of jurors in separating before they are agreed on a verdict, on a motion for a new trial. “ Upon this point,” he says, “ the practice in this country appears to have resolved itself into the exercise of a judicial discretion, confining the motion for a new trial to the question of abuse, and invariably denying the application where no injury has ensued.” The motion is dismissed.

Richardson, Evans, Butler, Wardlaav and Frost, JJ. concurred.  