
    Cochran v. Street.
    April Term, 1792.
    Juries — Verdict—Impeachment by Jurors — Case at Bar,--Some of the jury being persuaded by the others, that a majority agreeing to the verdict, it must prevail, do not object. This being proved by many of the jurors, a new trial ought to be granted; and a Court of Equity may set the verdict aside, and award a new trial, where the objection to the verdict comes to the knowledge of the party too late to enable him to move for a new trial.
    This was an action of slander, brought b3r Street against Cochran, in the County Court; wherein a verdict was given in favor of the plaintiff for ^150. Cochran having failed in a motion in arrest of judgment obtained an injunction on the chancery side of the same court, suggesting that the trial was unfair, and brought on by surprise, and also charging misbehav-iour in the jury.
    The cause coming on for a hearing, the court (without setting aside the former verdict,) directed a new trial, and the verdict thereon to be reported in order to a final decree. The material facts, proved by the depositions taken in the suit in chancery, are, that this cause, and another of Cochran v. Street, were taken by consent, out of course, to be tried at November court; but that the latter coming on first employed the whole of the term; so that this was necessarily continued over until the succeeding term, when it was tried, tho’ much objected to by Cochran. Four of the jurymen declared on oath, that they were of opinion upon the evidence that no damages ought to have been given against Cochran ; but that being unacquainted with the duties of jurymen, and the nature of their office, and being told by others who were more experienced, that they must agree in any verdict which the majority should approve, the3T did not object to it.
    From the decree of the County Court, Street appealed to the High Court of Chancery where it was reversed; and from that decree of reversal, an appeal was prayed to this court.
    ^Marshall, — for appellant.
    The verdict in this case is the finding of only eight jurymen, and is in truth no verdict at all. If the circumstances, which attended it, had been known, it could not have been received by the County Court. Being afterwards discovered, there was no remedy but by the equitable interference of the court.
    There are no better reasons for setting aside a verdict, than its having been unfairly procured, whether by surprize on the parties, or mistake in the jury.
    I would also observe that the appeal in this case from the decree of the County Court was premature; for the court not having set aside the first verdict, but merely directed a new trial, the decree was interlocutory only. .
    Duval for appellee. If the court should affirm the decree of the County Court, much injustice may flow from it, as after so long a time since the former trial, witnesses may have died, or removed, by which the parties may not have so fair a trial as the former was. Besides, a new trial cannot be obtained at law after a motion in arrest of judgment; and therefore it ought not to be directed by the Court of Equity —S Bac. 239, -242, 243.
    Nothing can be productive of so much mischief, as a practice, once introduced, of permitting jurymen, by their after affidavits, to set aside their own verdicts. They are liable to be tampered with out of court, to defeat the fairest verdicts, and thus to produce endless vexation, and real injustice to the parties; particularly, where one of the parties may in the meantime have lost his witnesses. The proof of misbehaviour should not come from the juryman but from some other person. — Durnf and East, Rep. 11.
    ' This decree is as final, as one for ne-groes, where an account of the hires is directed; and yet there is no doubt but that an appeal may be taken from such a decree.
    Marshall in reply. I grant that in the case stated by Mr. Duvall, it is the practice to appeal from such a decree; but the reason of it is, that as to the negroes it is final, and execution for them may issue immediately.
    
      
      Juries — 'Verdicts—Impeachment by Jurors. — On the question as to when the evidence of jurors will be admitted to impeach their own verdict, the principal case is cited in foot-note to Com. v. McCaul, I Va. Gas. 271; foot-note to Carr v. Magruder, 2 Pat. & Hen. 107; footnote to Steptoe v. Flood, 31 Gratt. 323; Branch v. Burnley, 1 Call 158; Foushee v. "Lea, 4 Call 286; Terrell v. Dick, 1 Call 553; Shobe v. Bell, 1 Rand. 42, 43; Bull v. Com., 14 Gratt. 629, 633; Howard v. McCall, 21 Gratt. 212; State v. Cartrigfit, 20 W. Va. 43; Probst v. Braeunlich, 24 W. Va. 358, 359. See Price v. Warren, 1 Hen. & M. 385; also, monographic note on ‘'Juries” appended to Chahoon v. Com., 20 Gratt. 733.
    
   The PRESIDENT

delivered the opinion of the court.

We do not take into consideration the depositions, touching the merits of the causé, before the jury. They were the proper judges upon that subject. As to the unfairness of the trial on the score of surprise, there is no doubt, but that if it were proved, it would afford good ground for granting a new trial; *as if the cause were tried out of its turn, without the previous consent of the party. But the court think the proof too slender to establish the fact.

To meddle with the verdict of a jury, upon the evidence of some of the jurors, is a delicate business, and should be proceeded in with caution, to prevent the mischief of the jurymen being tampered with. Bord Mansfield very properly, in the case cited from Durnf & East, refused a new trial upon the affidavit of two of the jurors, that the cause was decided by cross and pile, because it went, not only to prove themselves guilty of misbehaviour, but also ten others of the jury. But here, ten of the jurors are examined, and eight of them agree in the fact, that part of their body were opposed to giving any damages at all, and that the verdict was found on the opinion of a majority. Eour of them swear that they did not incline to give any damages j that they did not dissent from the verdict, in consequence of a misapprehension of the-law, and a belief that the opinion of the majority was to prevail; that they did not previously agree to be bound, by the determination of a majority; and that, if they had known, that they could have prevented a verdict till their consciences were satisfied, they would not. have agreed to the verdict. There does not appear to have been any tampering with the jurors by any person, in order to obtain this information. It comes out upon examination as other testimony does: — a great majority of the jury confirm the fact to which these four have sworn; and none of them contradict it. It is clear therefore that the verdict was found under a mistake, and that a new trial should be awarded. — -The inconvenience which may happen from another trial, if real, is to be attributed to the party who complains of it. — It might, but for him, have been had at a much earlier day.

The decree of the chancéllor must be reversed and that of the County Court affirmed.  