
    *Carr et als. v. Magruder.
    January Term, 1856,
    Richmond.
    Absent, Thomisos, 3. (He sat in the case below.)
    New Trials — Statement by Witness to Juror after Discharge Which Would Have Changed Result — Effect. —It seems, that it is no ground for a new trial, as for after discovered testimony, that a witness, who had been introduced and examined before the jury by the party making the motion, made certain statements to one of the jurors after they were discharged, which, had they been before the jury, would have induced them to render a different verdict.
    Jurors — Affidavit That Verdict Was Rendered under Histake of Law — Qusere.—To what extent will the court be influenced by affidavits of members of the jury, after verdict, that it was rendered under a mistake of law. made under the advice of one of the jury?!
    
    In October, 1849, Benjamin H. Magruder obtained a verdict against John M. Carr, George W. Craven and John Schaff, for $500, with interest, costs of protest, *&c., upon a negotiable note. Ma-gruder was the nominal plaintiff, the real owner of the note being one B. C. Flanagan. The defendants knowing this fact, yet introduced at the trial this Flanagan and one Bibb, as witnesses, to prove that the note was usurious. They denied that there was any usury, and the jury, though they disbelieved the witnesses and believed that thé note was usurious, because of discrepancy between the amounts stated by them as the consideration of the note, and because of their bearing during their examination, j^et found a verdict for the plaintiff, under advice from one of the jury that the law required them to find a verdict according to the denial of the witnesses, (they being uncontradicted,) and not according to their views, based on the circumstances stated. After the jury were discharged, one of the jury had a conversation with the witness Flanagan, in which Flanagan made a statement, which, if he had made it before the jury, would have induced them to find a verdict for the defendants; and they would also not have found the verdict for the plaintiff, but for the advice of the juror above referred to. These facts were made known to the court by the affidavit of seven of the jury, and were made ' the ground of a motion for a new trial, on the part of the defendants, on the ground “that the said verdict was rendered under a misapprehension of law on the part of the jury; and on the further ground of new and material evidence discovered since the trial *of said cause, which they could not by any diligence have known of at the time of the said trial, the same consisting in an admission of B. C. Flanagan (who, it was proved at the trial, was then the actual owner of the note on which the verdict was rendered,) made since the trial.”
    The court overruled the motion, “because the witnesses, Bibb and Flanagan, (the only witnesses examined in the cause, the plaintiff having introduced none,) were witnesses introduced by the defendants themselves on the trial of said cause; and it was known to tne defendants, when they called and examined Flanagan, that he was the owner of the debt, and the substantial, though not the nominal plaintiff on the record.” The court further decided, that “if the jury credited the testimony of Flanagan denying notice, the verdict, finding against the plea of usury, was clearly right;” and gave judgment for the plaintiff. From this judgment the defendants appealed to this court.
    Patton, for appellants.
    Con. Robinson, for appellees.
    
      
      Jurors — Affidavit by Juror to Impeach Verdict. — In addition to tñe cases cited in the note to the principal case (in edition of 1857) the principal case is cited in foot-note to Com. v. McCaul, 1 Va. Cas. 275; State v. Cartright, 20 W. Va. 43. See foot-note to Harsbarger v. Kinney, 6 Gratt. 287; monographic note on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.
    
    
      
      Note in ed. of 1857). — As the judgment of the court is a silent one, it seems difficult to know what they decided on this point. The Virginia cases of Cochran v. Street, 1 Wash. 79; Price’s ex’or v. Faqua’s adm’r, 1 Hen. & Munf. 385; and Hansberger’s adm’r v. Kinney, 6 Gratt. 287, all seem to recognize the propriety of hearing such affidavits; and seem only to decide that it is a delicate business to meddle with verdicts on the evidence of a few of the j ury as to mistakes made by them, and to leave each case to rest, in this respect, on its own circumstances. Thus, in the first of these cases, the verdict was set aside on the statement of ten jurors, that four of them assented to the verdict under the mistaken belief that the case was to be decided by a majority, and that they had no right to dissent till their consciences were satisfied, if the majority were against them. In the second case, the court refused to set aside the verdict on the affidavits of two of the jury that they were influenced by information given by a juryman, in the jury-room; and in the third case it was decided only, that for a verdict to be set aside, “which, in the opinion of the court that tried the cause, was not contrary to the evidence, and by which, for aught that appears to this court, full justice was done, upon the evidence of a few of the jurors,” (three,) as to their misunderstanding an instruction of the court, "would lead to dangerous consequences, as holding out inducements to tamper with the jurors after they have dispersed, and may have-forgotten the circumstances which did actually occur;” from all which it would seem, that as the law now stands in Virginia, such affidavits are to be heard, and that any action is to be taken on them with caution; but that it may sometimes be done, according to the circumstances. Prom the whole, it would seem that proofs of a verdict being rendered under a mistake, by such a number of the jurors, and under such circumstances as to exclude the idea of their having forgotten the facts, or their having been tampered with, would constitute a sufficient ground for a new trial.
    
   PER CURIAM.

The judgment is affirmed.  