
    [*] DEN ex dem. DENMAN and al. against J. B. & J. E. BALDWIN.
    ON CERTIORARI.
    Verdict of a jury, one of whom was too sick for deliberation, set aside, the judge also being dissatisfied with it.
    This was an ejectment for two pieces of land in Essex, tried before PEKNrsfGTOsr, J., at the September Circuit, at Newark, 1811. The lessors of the plaintiff relied on a title derived from a sale by the sheriff, under executions against John E. Baldwin, issued on judgments obtained in June, 1810. The defence set up, was a deed from John E. Baldwin, one of the defendants, to his brother, Jabez B. Baldwin, the other defendant, dated in November, 1809, anterior to the sheriff’s sale. The controversy turned on the validity of this deed. The lessors of the plaintiff contended, that the deed was void by the statute, being made fraudulently and collusively to delay and defeat creditors. A great deal of testimony was given on both sides, on the question of fraud, which was detailed at length'in the report [688] of the judge, by which it appeared that John E. Baldwin was insolvent at the time he gave the deed; that at the time he gave the deed, he also gave to his brother Jabez, a bill of sale for all his personal property, and that he had remained in possession of both his real and personal property ever since; and in tlie meanwhile, had taken advantage of the insolvent act. The defendants gave evidence that Jabez had paid and assumed to pay debts for John, to a considerable amount. This was contended on the part of the lessors of the plaintiff, to be a collusive contrivance to cover the fraud; and evidence on both sides. The judge, after detailing the evidence, concluded his report in these words. “I put the cause to the jury on the main subject of controversy in this way. That the question turned on the reality of the sale from John to Jabez, that if, from the evidence, they believed that this deed was a bona fide transaction, and not made to favor John, and screen the property from the creditors, that in [*] such case, they ought to find for the defendants. But if they were of opinion, from the evidence, that this was not an absolute bona fide sale, but made to cover and protect the property from the creditors of John, or that if any benefit was intended to result to John from this sale at the time it was made, that the sale in such case, would not be made bona fide, and against creditors, was void; that the law would not justify a man, in failing in circumstances, to convey his land to benefit himself, and to prejudice or defeat his creditors.”
    The jury went out in the evening, and after the court was opened the next morning, I received a note from the foreman of the jury, brought in by the constable, in the following words:
    “ One of the jurors is taken this morning very unwell; he says that it is impossible for him to remain longer here; in addition to whieh, we have not agreed, nor is it possible we ever shall. In behalf of the jury.
    “ JOEL WILLIAMS, Foreman.
    “ John Hornblower is the person unwell.”
    About this time, the constable had obtained my permission to let Mr. Hornblower have some refreshment, and I understood that a bed had been provided for him, otherwise, I should have discharged the jury on account of the ill health of the juryman. Some time after, the jury came in with the, verdict of not guilty, Mr. Hornblower still remaining very unwell. A verdict rendered under such circumstances, is not very satisfactory at best. In this case, I am clearly of opinion, that it was against the weight of evidence and the truth of the case; that the jury have either mistaken the law, or have not duly considered the evidence.
    The cause was argued by Van Arsdale, Hornblower, [689] and Halsey, for the plaintiff, and I. H. Williamson and Chetwood, for the defendant. But, as in their arguments they went fully into the merits of the case, on the ground of fraud, the evidence of which, the [*] reporter thinks too lengthy to report, it is not necessary to state the argument of counsel. The situation of the juryman was also urged as a ground for a new trial.
   Kiukpatkick, C. J.

The judge put the cause to the jury on the true ground. He left the evidence to them, and clearly, distinctly, and correctly stated to them the law; and the jury have found for the defendants. Under such circumstances, I should not think it correct to disturb the verdict, although the judge who tried the cause was not satisfied with it. But I think that the situation of the juryman calls for consideration; he was sick, not able to deliberate, or assist at the deliberations of the remainder of the jurymen ; it was, in fact, a trial by eleven jurymen. On this ground, I think, there must be a new trial.

Rossell, J.

Thought that there ought to be a new trial on both grounds.

Pennington, J.

When a question of fact has been fairly and fully put to a jury, and the jury have deliberately decided it, although the judge before whom the case was tried, is not satisfied with the verdict; yet I do not think that alone a sufficient cause for a new trial, unless in very clear, palpable cases. But I do not think there has been such a deliberate consideration of this cause as the spirit of our law calls for. The jury were out all night; a juryman in the morning, is taken violently ill; after which, the foreman informed the court that they could not agree; the sick juryman was evidently unable to deliberate, and then a verdict was found, and that verdict not. satisfactory to the judge. All these circumstances combined, demand a further examination of this cause.

Rule for a new trial allowed. 
      
       On the second trial.'the cause was compromised.
     