
    
      William McCarty vs. Martin and James McCarty.
    
    Motion by plaintiff for new trial, on the ground that, pending the trial, and after the Court had adjourned for the night, one of the defendants, with his brother-in-law, met some of the jurors at a drinking shop, and treated them to some liquor, and was there seen in conversation apart with one of the jurors; and on, the further ground that the jury agreed that a majority should decide the case — were, at first, equally divided, and then one changed his vote and gave the verdict to defendants. The Court; being otherwise well satisfied with the verdict, refused the motion.
    
      Before FRost, J., at Edgefield, Bpring Term, 1851.
    In this case the verdict was for' the defendants, and the plaintiff gave notice that he would move for a new trial, on several grounds. He afterwards gave notice of a further ground, as follows:
    
      That the defendant, Martin McCarty, in order to sway and bias the jury, pending the trial, entertained and treated some six or more of them with ardent spirits, at a public liquor shop, and resorted to other undue and unlawful practices, as appears by the annexed affidavits, deposing to facts, of which the plaintiff and his attorneys were wholly ignorant tvhen the notice of appeal was prepared and served upon the presiding Judge, and which have but very recently come to their knowledge.
    The principal affidavit annexed to the notice was as follows:
    “Personally appeared before me James M. Kemp, who, being first duly sworn, deposes that this deponent was one of the jury that tried the case of William McCarty against Martin McCarty and James McCarty, at the March Term last past of the Court of Common Pleas for the said district — that on Friday night of the second week of the said term, after the argument in the said case had been begun, and after one counsel on each side had made an argument before the jury in the said case, the trial was adjourned over to the next day, and the jury discharged until then — and that, as the said jurors came out of the court-house together, which was about 10 o’clock at night, it was proposed among them that they should go to Spann’s liquor-shop, in the village of Edgefield, and take a drink — and that some six or eight of the jurors thereupon proceeded to walk towards the said shop, and that on their way they were overtaken by Ellzey Forrest, a brother-in-law of the said Martin McCarty, and the said. Forrest thereupon inquired ‘if they were going to get a drink,’ to which some one or two of the jurors going along answered ‘yes,’ — that the said Forrest thereupon remarked that ‘he would go too,’ to which one of the said jurors (it was either Allen Kemp* or Wm. Stevens,) replied, ‘very well, if you pay for your drink,’ —to which the said Forrest rejoined that ‘he could treat himself' or the crowd either,’ — that the said jurors with the said Forrest then went into the said liquor shop, and, among the group of persons standing about the counter, this deponent saw the saidi Martin McCarty — that, upon this deponent and the other jurors, entering the said liquor shop, the said Martin McCarty or the said Forrest, one or the other, and this deponent thinks it was the former, invited them to drink, and, upon the said invitation, they did drink of ardent spirits at the said shop, and directly afterwards this deponent saw the said Martin McCarty standing near the counter, with his purse in his hand, as if to pay for the said drinks, and this deponent knows that he did not pay for them, and has not the least doubt but that the said Martin did— and that, among the jurors thus entertained and treated, besides this deponent, were Wm. Stevens, Allen Kemp, Wilbert Cumbo, -Gibson, and Aaron Clark.”
    The affidavits of Aaron Clark, Edward T. Davis and William Stevens, who deposed substantially to the same facts in relation to the drinking, were also annexed to the notice. William Stevens, in his affidavit, further stated that, at the liquor shop, “Martin McCarty took one of the jurors off, and had a long talk with him,” and that the jury agreed to leave the decision of the case to the majority; that at first they were equally divided, and then one changed his vote in favor of defendants, which gave them the verdict. John Colgan’s affidavit was also annexed. He stated that he “saw Martin McCarty, at the liquor shop, take one of the jurors aside, and engage him in conversation.”
    The motion for a new trial was now made.
    
      Bonham, for the motion,
    cited 3 Thomas’s Coke, 499; 13 Mass. R. 220 ; 2 Strob. 410; 2 S. & R. 458; 9 Bac. Abr. 619; 1 Freem. 79; 3 Bl. Com. 375; 6 Com. Dig. Pleader, 5, p. 259.
    
      Bauskett, contra,
    cited 2 N. & McC. 446; 1 Bail. 117; 2 Bail. 576; 2 Rich. 122; 4 Eng. C. L. R. 6.
   Curia, per

Whitner, J.

This was an action of trespass quare clausum fregit, and, as set out in the report, involved the question of title.

The verdict was for the defendants, the jury having resolved the questions submitted favorably to them. The paper title resting on two grants, calling for a common boundary, presented a question of location — the dividing line being established, there was no conflict. This question had been more than once before this Court, either on the motion of the same or other parties, and the facts seemed quite familiar to my seniors in the Court. On each previous adjudication the location was identical with that now established, and then, as now, always satisfactory to each member of the Court, I think, whether on circuit or here. No complaint is now presented in the grounds of appeal, and hence this statement would be uncalled for, except that, in the argument, the zeal of counsel led him to press the injustice which had been done his client herein, as a circumstance entitled to consideration in connection with one of the grounds of appeal.

The plaintiff failing to locate his grant, which was the senior, so as to include the lands in dispute, relied also on his possession as giving title against all others, and especially these defendants, claiming, as they did, through Mrs. B. Worthington. The facts proven were fully, and, as regards this plaintiff, touching the effect to be given to the declarations of Mrs. Worthington, most favorably submitted to the jury. The instructions of the presiding Judge (if, indeed, there was a shade of error.) consisted in that. In law, upon the proof, we think the verdict may be fully vindicated. Upon all the points we are constrained to say that we are of one mind — that, as to the instructions to the jury, the plaintiff has no cause of complaint, and, as to the verdict of the jury, the truth of the case has been reached.

The principles involved are not stated and elucidated, because those applied are such as have been maintained and enforced by the whole current of decisions.

The ground of difficulty, and that on which plaintiff’s counsel mainly relied, is the last' one made in the brief, alleging an improper interference with the jury by one of the defendants pending the trial.

This ground rests on affidavits made some weeks after the adjournment of the Court, and now submitted. They disclose an accidental or intentional meeting of some of the jurors charged with the case, and one of the defendants and his brother-in-law, at a neighboring liquor shop, during an interval, and immediately on the adjournment of the Court, about 10* o’clock at night, the trial having progressed, hut yet pending— the expenses of the drinking being defrayed by some one not very clearly, indicated, but most likely the defendant. The stay was not shewn to be protracted, or the drinking excessive, but during a portion of the time the defendant was seen apart and in conversation with one of the jurors, whose name is not disclosed. The fact of the division in the jury-room, the mode adopted to ensure a decision, and the turning over of one of the jurors, by which the' verdict was rendered, are also Set forth.

In delivering the opinion of the Court, I do not feel called' on to speak as to the value' of trial by jury, or of the importance of preserving it in its greatest purity. Every care has been taken by our laws to protect this sacred right, and secure impartial verdicts. The avenues to the jury box are guarded, and all improper attempts to influence juries are rebuked and prohibited by all possible means. But this Court cannot lend a ready ear to disclosures coming from the jury-room; the ends of public justice require some restraint upon the éxercise of a right to scarf and review the process by which jurors attain their conclusions. In Sheppard vs. Lark, (2 Bail. 576,) the Court manifest an inclination to look only to such gross misconduct as would be palpably subversive of the ends of justice. This door should not be opened too readily, and especially by encouraging jurors to promulgo their own disgrace.

The principal complaint is, that jurors 'suffered themselves to be approached by one of the parties, or his agent, in a way calculated to produce improper bias. In becoming the organ of this Court, I am not charged with an apology for any of the suspected actors on this occasion. Had the occurrences, which transpired, been brought to the view of the presiding Judge the next morning,-they would doubtless have been so impressed as not soon to have faded from the memory of those implicated.

Some certain rule on the subject now before the Court would be most acceptable ; it is not easily prescribed. I have examined the cases referred to in the argument, and such as I have been able otherwise to collect, and at last it would seem that when questions for new trials arise, founded on such complaints, they must depend rather on judicial discretion, than upon any strict law or absolute right; and whether, as a consequence, in- any given case, the verdict should be avoided, must depend on the abuse presumed or proved to have followed, and the substantial justice of the case. (Graham on New Trials, 66, 85 ; Pulaski & Co. vs. Ward & Co., 2 Rich. 119.) Lapse of time in presenting such complaints is always an objection to their consideration. This case being yet within our control, upon appeal regularly prosecuted, we will not trench upon what seemed to be the understanding in Cohen vs. Robert, (2 Strob. 410.) Each of the jurymen implicated have not been served with copies of the affidavits, for although misconduct is attributed to the defendant, assuredly jurors do not escape the imputation 'when charged with drinking at the expense and holding conversation apart, at a late hour of the night, with a party to a suit then on trial before them. This should have been done according to the rule laid down in the case before referred to in 2 Rich. 122, and cases there enumerated.

The affidavits do not disclose any allusion to the case — “ any solicitation of the juror, or belaboring him, as expressed by the old writers, or the exercise of personal influence to affect his decision, which is to be reprobated and suppressed,” — a rule recognized in the case in 2 Strob. 410. Looking to the occasion, the place and attendant circumstances, the conduct of these parties cannot well be too strongly reprehended.

But, unfortunately for the country, these crowds of promiscuous persons at drinking establishments are too common, especially under eover of the night. A rigid scrutiny of the material composing such assemblages, might often lead to strange disclosures. We would not feel justified in saying, because parties and jurors meet at these places of too common resort, that corruption has been thereby engendered. The facts furnished are not sufficiently specific to indicate the abuse, or in any satisfactory way to enable the Court to trace the result to this cause; and looking to the end, we are not warranted in straining an inference.

We are not of opinion, therefore, that the exercise of a sound discretion would authorize the avoidance of a verdict in the justice of which we all so fully concur.

The motion for new trial is dismissed.

O’Neall, Evans, Withers and Fkost, JJ., concurred.

Motion dismissed.  