
    Blaine’s Lessee against Chambers.
    THIS cause was tried in the Circuit Court for Cumberland county, in May, 1808, before the late Judge Smith There was a verdict for the plaintiff, and a motion by the defendant for a new trial, which was over-ruled. The defendant appealed from the judge’s decision, and thus the cause was brought before this Court.
    
      A devise of c< a grist mill and appurtenances,” carries with it what was actually used as an appurtenant by the testator in his lifetime, or, if that cannot be discovered, by his devisee soon after his death. -It there is no evidence of either, the jury must decide what is necessary.
    A devise of c< 50 acres of the most adjacent woodland thereunto next adjoining,” does not cany with it 8 acres not woodland as an allowance-of 6 per cent, for roads. ‘ ’
    Under a devise of that kind, in 175b, it might be left to the jury to decide, whether it should by the custom of the country be included. But at this time of day; in a long settled county, it carries but 50 acres strict measure. -
    It is gross misbehaviour for any person to speak to a juror, or for a juror to permit conversation concerning the cause after he is summoned and before the verdict • _
    
      The land in controversy, consisting of between two and three acres, was part of a large quantity belonging to John Chambers deceased, who made his will in the year 1756, and devised all his land to his sons Randle, William, (the defendant) and John (under whom the plaintiff claimed) in fee simple, as follows. To his son John, he gave his “ grist mill “ and appurtenances, and also, 50 acres of the most adjacent “ woodland thereunto next adjoining.” To Randle, he gave “ all that improvement, late Andrew Patton's, and all that “ meadow, commonly called the upper meadow, to complete “ on both sides of the spi-ing 200 acres, &c.” And to William^ he gave “ all the rest and residue of his land.”
    The principal question on the trial was, whether the land in dispute, passed by the devise to John Chambers, son of the testator. The defendent insisted that it did not; and he also gave parol evidence of, and relied on' a partition made as long ago as the year 1768, between John and William, by which this land was excluded from the part devised to John-He gave evidence also, of long possession in himself. This was opposed by strong contradictory evidence on the part of the plaintiff; particularly by the proof of arbitration bonds having been executed by the defendant, and a certain Robert Callender, in July, 1772, reciting that the lands had not been divided. It was contended on the part of the plaintiff, that by the devise of 50 acres, 53 acres passed, according to the custom of the country, by which an allowance of 6 per cent, is made for roads, &c.; that the plaintiff would not have quite so much as 53 acres, including the land claimed by him ; and that, at all events, this small piece of land adjoining the mill, was necessary for its enjoyment and passed as appurtenant to it. The judge was of opinion, that 53 acres passed by the devise of 50 acres, and laid considerable weight on that circumstance. He inclined to the opinion, that the land in dispute was appurtenant to the mill, and upon the whole submitted it to the jury, whether it passed or not by the devise to John, son of the testator. Another ground on which the new trial was contended for, was, that the brother-in-law of the lessor of the plaintiff, conversed with one of the jury concerning the cause, before and after he was sworn.
    
      Watts for the defendant,
    after insisting, that on the facts as proved, the plaintiff ought not to have recovered, contended, 1. that the judge misdirected the jury on the law. A devise of “ a mill with the appurtenances,” only conveys a right to as much land as was necessary for the purposes of enjoying the mill, and had been commonly used as an appurtenant to it. It was wrong to leave it to the jury to decide, whether the land passed by the will, unless they should be of opinion from the evidence, that it had been so used by the testator. The land in dispute could not pass as an allowance of 6 per cent.; because the bequest is of “ 50 acres of wood- “ land adjoiningwhereas, the land in question is cleared land. Nor, when 50 acres are devised in any case, does it mean 50 acres with allowance. Grants by patent expressly include the allowance, but it is not so in a conveyance where it it not expressed.
    2. There ought to be a new trial, on. account of the interference of the defendant’s brother-in-law with the jury. One of the jury declared, that he derived more information from him, than from the court or jury. There was gross misbehaviour in the jury in suffering him to come among them.
    
      Duncan contra,
    dwelt on the facts of the case, and also contended, that the devise of a mill would give a convenient quantity of land adjoining; as a devise of a house or messuage, carries with it a garden, pipes or conduits, and lands used with it; particularly if, as in this case, the word appurtenances is added. He cited 2 Bac. Ab. 397, (Grant) and the cases there cited. Cro. Eliz. 89. Cro. Jac. 121. 3 Wils. 141. 2 W. Black. 726. 1148. 2 Sound. 401. 8 Johns. 59. Co. Lit. 5, a. 56, a. b. Here the jury viewed the ground, and could best judge what ground was necessary to the mill; and the law and fact are mixed together. Under this will, made more than 60 years ago, the allowance of 6 per cent, would pass, by which the plaintiff would be entitled to 53 acres, whereas he gets not quite 53 acres, including the land in dispute. At the time of making this will, all grants and sales were with allowance; and grants, devises, &c. are to be construed according to the usual measure of the country, and not by statute measure, 6 Co. 67. 8 Mod. 276. Sugd. 203. — They are also to be expounded according to the understanding of the country at the time they are made, Arab. 288.
    
    
      2. The plaintiff was not guilty of any misbehaviour, and ought not to be affected by the misconduct of another. The court will not grant a new trial except for misbehaviour of a party. Grovenor v. Fenwick.
      
       Nor though affidavit be made that one of the witnesses declared, he had got a guinea forswearing. George v. Pearce. No verdict would stand if the interference of strangers may avoid it. Artful persons will employ persons to speak to the jury, for the purpose of avoiding the verdict if it should go against them.
    
      
      
         7 Mod. 156.
    
    
      
      
         Ib. 31.
    
   Tilguman C. J.

(After stating the case.) It has been contended before us that a new trial should be granted, on account of the misdirection of the judge. Whether the land passed by the devise to John Chambers was proper to be left to the jury; but the question is whether it was not left with observations tending to mislead them. It appears to me that too much stress was laid on the circumstance of S3 acres passing under the devise of SO. - The jury might have been permitted to decide whether by the custom of the country in 1756 this devise included 8 acres as an allowance for roads,' &c., although at this time of day, at-least in a county which has been long settled, such a devise would carry but 50 acres strict measure. But in this cause it was not of importance, because nothing but woodland was devised, and -therefore whether the devisee took 50 or 53 acres, it would not include the land claimed in this action, unless it was woodland, of which there was no proof. But, in the manner in which it was submitted to the jury, they might well -think that in order to make up the 53 acres, they might throw in the parcel in dispute, whether appurtenant to the mill or not. In another respect too, the true point on which the cause turned seems to have been misconceived. The devise was of the mill with the appurtenances. The necessary .water, together with a race to conduct it to the mill was appurtenant. No doubt there must have been also a small parcel of land adjoining. But how much, or how situated, was a fact to be inquired of by the jury. They were to inquire, not, what in their own judgment whs convenient, on a view of the mill, but what was actually used as appurtenant to it by the testator in his lifetime ; for that and that only would pass by the devise. If no trace of that could be discovered by evidence of what was occupied by the testator, or by his devisee soon after his death, then indeed the jury could only decide by their own judgment what was necessary, and this they would have a right to presume was intended by the testator. But by the charge they were left to construe the devise according to their own ideas of what might be necessary for the use of the mill. I consider it unnecessary to give an opinion on another reason urged for a new trial; the misbehaviour of one of the jury in holding conversations with the brother-in-law of the plaintiff, both before and after he was sworn. I I am glad that the plaintiff himself was not in the least implicated, but it would be an injury to the administration of justice not to declare, that it is gross misbehaviour for any person to speak to a juryman, or for a juryman to permit any' person to converse with him respecting the cause he is trying, at any time after he is summoned, and before the verdict is delivered. Upon the whole of this case, I am of opinion that there should be a new trial.

Yeates J.

The circumstances of this case, and the true points on which it turned, have been detailed by the Chief Justice. I regret that the charge of the Court, as taken by the student at law who committed it to writing, appears before us in a very imperfect state. Sufficient however does appear, to satisfy my judgment of my line of - duty. Whether there was a division ■ made between the two brothers John and William of the lands devised to them by their father John Chambers, was a fact which could only be decided by the jury. I regard the arbitration bond from William Chambers to Robert Callender, as strong evidence upon this point.

The pretensions of the lessor of the plaintiff were founded on the will of John Chambers, dated in 1756. I agree, that at that early day, under a devise of 50 acres, the devisee would under the known custom of the country, entitle himself to the usual allowance of 6 acres per cent, for roads and highways. But too much weight was laid on this position however true, because the devise was of 50 acres of the most adjacent woodland and next adjoining to the mill, and could not pass clear land detached from the body of the woodland. The plaintiff, therefore, if at all entitled, must ground himself on the preceding parts of the sentence, the devise of the grist mill with the appurtenances. By these words every thing necessary for the full and free enjoyment of the grist mill, and requisite for the support of the establishment — such as a dam, water, the race leading to the mill, a proper portion of ground before the mill for the unloading and loading of wagons, horses, &c. as used by the testator, would pass. For without these appurtenances the grist mill could not be worked, and the bounty of the testator would be inoperative. I think the jury should have been instructed, that whatever matter or thing had been usually held or occupied as an accommodations to the mill, legally passed by the devise. But in defect of proof in these particulars, they should have been told that it belonged to them fairly and dispassionately to designate the portion of land before the mill which they judged necessary for the accommodation of the mill under its local situation and circumstances, all things fairly considered. This has not been done, and therefore in my apprehension, the cause was not submitted to the jury on its true merits, and I feel myself constrained to say, although with reluctance, after a view by the jurors of the premises in question, that the judgment of the Circuit Court should be reversed, and a new trial be awarded.

Upon the motion for the new trial before Judge Smith, the jurors implicated by the affidavits were not called upon to defend themselves against the charges, he being of opinion that the verdict was conformable to the justice of the case. If the truth of the fact was correctly stated in those affidavits, the person who attempted to labour the jury, merited the most severe punishment, as such conduct poisons the first sources of justice. But, standing as the matter now appears before us, it is not in my idea a ground for awarding a new trial, and particularly as the persons conducting the suit are not charged with misconduct.

Brackenridge J. concurred.

New trial ordered.  