
    James Goodright, lessee of William M’Causland, jun., George M’Causland, Thomas M’Causland, Anne M’Causland, Esther Scott and Jane Scott against William M’Causland, sen. and James Crawford.
    Where the matter of fact has been left to the decision of the jury, the court will not grant a new trial; nor where a juror has betted on both sides of the cause, unless it produced an evident bias: nor where some of them have expressed their sentiments on the opening of the cause. The proof of jurors eating and drinking at the expence of the party for whom the verdict has gone, must be clear and full, and must establish undue management or '’riminal intention of the party, before the verdict will be set aside.
    
      Motion for a new trial on the part of the defendants, and a rule to shew cause had been granted.
    The action had been tried at Lancaster the last October assizes,' before M’Kean C. J. and Yeates J., and a verdict had passed for the plaintiff.
    The new trial had been pressed on five grounds:
    ist. That the verdict was against the weight of evidence.
    2d. That Herman Skiles, one of the jurors, some weeks before the trial, had betted a pint of wine with colonel James Mercer, that a verdict would go for the plaintiff, and thereby shewed his partiality.
    3d. That five of the jurors eat or drank during the trial, at the expence of one of the lessors of the plaintiff.
    4th. That two of the jurors declared their opinion in favour of the plaintiff before they heard the testimony.
    5th. That Herman Skiles aforesaid, and two others of the jurors, threatened to throw three others of the jury, who dissented from them in opinion, out of the window of the second story of the Court House, where they were deliberating on their verdict, unless they would agree to find a verdict for the plaintiff.
    Affidavits were agreed to be mutually taken on both sides, upon a cross examination of the witnesses, to be read in evidence at the argument; and three witnesses were examined viva voce in court.
    * The result of the testimony arising therefrom was as follows. L
    O11 the second ground; Skiles did bet a pint of wine with Mercer, two or three wepks before the trial, that the plaintiff would gain the cause, before he was struck as a juror. He also several times expressed himself that the defendants would lose the action, and this did not come to their knowledge till the jury were sworn. On the other hand, it was proved that Skiles had expressed himself differently at other times, and offered to bet 2 to 1 against the plaintiff’s success. He actually did lay a gallon of wine with one person, and one-half pint with another, that the plaintiff would miscarry. When Mercer paid the bet, Skiles did not recollect that he had laid it.
    On the 3d ground: Several of the jurors drank in company with William M’Causland, jun. during the trial, which continued five days, and one of the jurors eat with him; but it did not appear that any private conversation took place between them, or any observations made respecting the merits of the cause, nor was the drinking or eating proved to be at his expence. Several of the plaintiff’s witnesses lodged at the same inn with some of the jurors, and the aforesaid William visiting those houses occasionally, fell into company with the jurors, and they severally called for pints of wine, of which the whole drank, but each paid for his pint, as his club of the liquors introduced. It was sworn by Michael Rhine, however, that the aforesaid William, after the first motion made for the new trial, had said to him, that no one but himself could prove the fact of his treating the jury': but it was not proved by Rhine on his examination, that he did treat the jury, otherwise than as above stated.
    On the 4th ground; three of the jurors on the cause being opened by one of the plaintiff’s counsel, declared their opinions then to be with them, before the witnesses were sworn. And one of the jurors swore that he was still dissatisfied with his verdict.
    The 5th ground appeared by no means supported by proof. The expressions which had been made use of were delivered in jest, and did not in the least degree intimidate the dissenting jurors. It was therefore abandoned on the argument.
    In the course of reading the affidavits, the deposition of William Crawford, the son of one of the defendants, was offered to the court; but on an objection being taken that he was entitled as a remainder man after his father’s death, under the deed by which the defendants claimed, and therefore interested, he was waved.
    The defendants counsel made no observatipns with respect *8741 to * °f evidence, but submitted that point solely to the report of the judges who tried the cause; agreeing, that when no direct charge had been given to the jury, the court should exercise their superintending powers with caution.
    Their example was followed by the plaintiff’s counsel, who barely cited 1 Burr. 397. 5 Bac. Abr. 246.
    On the 2d ground, the defendant’s counsel contended, that where a fair trial had not been had, the court would interpose, and grant a new trial. Skiles’s mind was not as white paper. He had laid bets on both sides, and therefore evidence on such a man would not make the proper impression. The act of assembly prescribing the sheriff’s oath as to returning an indifferent jury, (2 Dali. Daws, 262, § 2,) and his fixing up lists in his own and the clerks offices seven days before the court, (lb. 264, 6, 8,) in order that the parties might make their challenges, would furnish no means of knowledge concerning Skiles’s betting on the event of the cause. The defendants knew nothing of his wagers at the time of the jury being sworn, and therefore could not challenge him. The quantum of the bet made no difference in law.
    A juror should be as white paper, superior to all suspicion of partiality. 1 Bl. Rep. 481. Discovery of material evidence after trial, as peijury and combination of witnesses, new trial granted. 3 Burr. 1772. So of a receipt found after the trial. 2 Bl. Rep. 955, 956. Motion for a new trial not to be made after motion in arrest of judgment; aliter where the matter on which such motion is founded wn.S hot cjiscoyered till after-wards. 5 Bac. 239. Matter discovered after the trial is a good ground for a new trial. 12 Mod. 584. 21 Vin. 493, pi. n. Cause of challenge not known at the trial, will warrant the granting a new trial, n Mod. 119. 7 Mod. 54. 5 Bac. 243. And it has been even carried so far, where the cause of challenge was known at the trial. Corny. 602. A juror challenged and afterwards sworn" as a talesman by a wrong name, is a ground for a new trial, though no fault be found with the verdict. 2 Lord Raym. 1410. S. C. 1 Stra. 640. Solicitor misbehaving himself by writing letters to two of the jury before the trial, importuning them to appear, and setting forth his client’s hardships, and that he had verdicts for his title, the trial set aside. 2 Vent. 173.
    To which it was answered by the plaintiff’s counsel, that this was as fair a trial as could possibly be had, under the circumstances of the case. The point in controversy was the sanity of Daniel M’ Causland, and must frequently have been matter of conversation in the county of Lancaster. Different sentiments * would be formed on the different representations of the case made to individuals, and it is not L wonderful, that wagers should be laid, according to the impressions made by the several 'stories. Skiles knew nothing of his being on the jury, when he laid the bet. But it could not prejudice his judgment against the defendants. The influence, if any, was the other way. He had laid three wagers, one gallon, and one half pint on the defendants, and one pint on the plaintiff; which was above eight to one in the defendants’ favour. Great inconveniences would arise from adopting the defendants’ objection at this period. They ought to have made it earlier. If they really did not know of the wager, when the jury were sworn, they knew it shortly after. The party should not lay by until he knows the event, and then make his exception. The case of Spong et al, v. Lesher is much stronger than the present; there a communication was made immediately by the defendant’s counsel,' of the near affinity of a juror to one of the plaintiffs, but the court would not grant a new trial. If jurors by laying wagers on one side of the question can incapacitate themselves from acting in that character, difficulties enough will occur, in procuring juries in causes of any magnitude. The act of assembly which has been quoted by the defendants, goes as far as human wisdom can devise, to give the parties an opportunity of making their challenges. A particular case occurring, ought not to alter the law.
    A principal challenge to a juror, is where there is express favour or malice, and disqualifies at once: but a challenge to the favour is discretionary in the court. Co. Lit. 157. b. A challenge must be made before the juror is sworn, and cannot be received afterwards, though on an indictment for murder. Yelv. 23. The same law obtains in civil suits; 2 H. H. P. C. 274; and the principle is recognized, though the objection be not known at the time. Co. Eit. 158. a. 2 Rol. Abr. 658. pi. 5, 6.
    So where a juror was related to one of the parties. Style, 100. The party loses his challenge by not making it in time. — lb. 129. So where a juror was related 'to one of the creditors of a bankrupt. 1 Vent. 30. " And it appears by the same case in' 2 Keb. 498, that the cause of challenge was not known at the time. A juror being of kin in the ninth degree is a principal cause of challenge. 3 Bl. Com. 363. The present objection is analogous to an exception against the competency of a witness, which must be taken before he is sworn and examined, otherwise it comes too late, and the party shall not afterwards avail himself of it. 4 Burr. 2252.
    On the third ground, the counsel for the defendants insisted, that the evidence proved the fact, that one of the lessors of the *87ñl * plaintiff had treated the jury. The consequences oí J such practices must be very obvious. They engage the gratitude of the jury, and lay them open to improper impressions.
    The evidence openl}'- given in court will have little effect where such methods obtain. The drinking publickly, or the jurors calling for wine, makes no difference as to the rule of law. If jurors eat or drink at the charge of him, for whom the verdict is given, before they are agreed on the verdict, it will avoid it. Bull. Ni. Prius 303, 820. 4to. edt. 12 Mod. in.
    To this the plaintiff’s counsel remarked, that the fact was not proved. It must clearly appear, that the treat given was by and at the expence of the party, or some agent for him. 1 Vent. 124. 1 Tri. per Pais 260. (8th edit.) William M’Caus-land, junior must necessarily at some times have met with some of the jurors in the taverns where his witnesses lodged; and it was impracticable for him during the ‘crowd of the assizes, always to obtain a private room for his refreshment. His drinking with some of the jurors, out of the same bottle or pint, where each paid his proportion of the liquor, though the specific wine of each could not be distinguished, without conversing on the merits of the cause, could produce no improper effect. The juror who eat with him paid his own club, and did not sup at his expence. Rhine must have mistaken his expressions, that no one but he could prove that he had treated the jury; inasmuch as upon his examination he could not ascertain the fact. In Bull. 303, 4to. edit. Cro Jac. 21, it is laid down, that the misbehaviour of the jury ought to be certified by the judges on the postea.
    
    On the fourth ground, the defendants contended that the premature declarations of some of the jurors before the evidence was heard, clearly evinced their partiality for the plaintiffs. Jurors should be omni exceptione majores; if they have declared their opinions it is a good cause of challenge. Bull. 303. New trials are granted where any of the jury declare, that a party shall not have a verdict let him produce what evidence he will. Ib. 320. 2 Salk. 64-5. And where a juror declared at the view, that by what they had seen, they should soon determine the dispute; and the day before the trial, said, the plaintiff was a neighbour, and right or wrong he would give it for him, — though these words were even known before the trial, the court granted a new trial, against the opinion of Baron Parker. Corny. 602. This prejudging of a cause is a most effectual bar to the admi * nistration of justice, poyr Besides one of the jurors swears, he is now dissatisfied *- with the verdict.
    The plaintiff’s counsel observed, their remarks under the second head were equally applicable to this point. It could not reasonably be expected, that the minds of jurors taken de viceneto could be as white paper. This had been a case of great public expectation, and many people must early have formed ideas of the event. In the remarkable case of Thune on a policy of insurance which had been often tried, three of the jurors declared, that they had made up their minds on the representations made to them of the circumstances attending it; yet though this was known to the court, they were ordered to be sworn. — No case can be cited where a verdict has been set aside, merely because a juror has expressed an opinion after the court being opened, or before; this is materially different from a juror saying he would find in one way at all events. When such sentiments have been disclosed by a juror before he is sworn, it may be a cause of challenge to the fa-vour, but this is no ground for a new trial under any adjudication we have met with. There must be malice or favour in the words of a juror, to make them a principal cause of challenge. 21 Vin. 266, pi. 8. 2 Hawk. 418, § 28. 2 Rol. Ab. 657. 3 Bac. Ab. 259. Brook, Challenge, pi. 55. F. N. B. 22. 1 Tri. Per Pais 189, (8th edit.) As to the juror who is still dissatisfied, his scruples can have no weight; they have probably been superinduced by communications since the trial. Jurors shall not be permitted to invalidate a verdict which they have given. 2 Bl. Rep. 803. Sayer’s Rep. 100. 2 Term Rep. 281. Andrews 382. Finally they said,
    The case in Corny. 601, 602, so much relied on, cannot be law from the reason of the thing. Besides it stands opposed to all the authorities, particularly those in Style 100, 129. 11 Mod. 119.
   By the court.

The last exception to the verdict, has been properly relinquished on the argument.

Neither was the first insisted on, with much hopes of success. The judges who tried the cause, did not sum up the evidence in their charge to the jury. The trial had continued five days; a great number of witnesses were examined as to a variety of facts, and both the law and fact were fully con-considered, and very ably argued by the counsel on both sides. The court under a few general remarks, left the matter of fact *3781 solely to ^ie decision *of the jury; and we now feel d ourselves precluded from giving our sentiments on the weight of evidence, either way.

The second, third and fourth objections against the verdict may be considered under two heads; the misbehaviour of some of the jurors in laying wagers, and in eating and drinking at the plaintiff’s expence, and of others prejudging the cause.

As to Skiles’s betting, unless it produced a bias on his mind, it cannot be a reasonable ground of exception. If we suppose him so interested a character, as to be capable of giving an improper verdict, to gain a wager of a pint of wine, we must also necessarily suppose, that the loss of a gallon and one half pint, would make a still stronger impression on him, and influence his judgment on the other side. But it appears from the testimony, that when Mercer offered to pay the wine he had lost to him, he actually forgot that he had laid the wag-er with him. We must therefore .conclude, that he was not biassed in favour of the plaintiff, by this small bet.

The evidence is not sufficiently strong to establish the jurors eating and drinking at the plaintiff’s expence. We shall always discountenance such practices; but the law calls for clear and full proof. Wherever it appears to be done to induce favour, we shall not fail to punish such conduct. But unless there was management, or the intention of young William- M’Causland-was criminal in what he did, it could have no effect on the verdict. We see no circumstances, from whence we can infer undue management, or a criminal intention. The proof is also defective, as to any of the jurors prejudging the cause. It were much to be wished, that the minds of jurors should be as white paper, but it can scarcely be expected, where they come de vicineto. Every judicial as well as political system has its disadvantages, as well as advantages. The view previous to the trial, was an improper measure; it could answer no purpose, that could not fully be supplied by oral proof; and some of the jurors may have received improper impressions there. But prejudging and giving an opinion on the statement of certain facts, are very different things. The first implies a strong disposition to favour the one side or the other, a determination to find in one way, let the evidence be what it will. The last involves the truth of certain facts and propositions in the sentiments delivered; and impressions thus made may be effaced by the production of other evidence. It was natural enough for some of the jurors to discover an inclination towards the plaintiff, upon a very full and elaborate opening by one of his counsel; but this most probably was under an idea, that the facts stated would be fully proved. It is material to consider also, that what the jurors did say, was amongst them*selves [-*079 only. Our own experience teaches us, that few per- *- sons can keep their minds in perfect equilibrio, upon hearing a strong statement on one side only. Such leanings however ought to be guarded against, and resisted with firmness, until the whole evidence is gone through and closed.

Cited and approved in 7 W. & S., 419, and 74 Pa., 461.

Messrs. Ingersoll, J. B. M’Kean and Hopkins, pro quer.

Messrs. "Tilghman and Montgomery, pro def.

We are on the whole of opinion, that the rule to shew cause should be discharged; and we are strengthened therein, by the consideration, that this trial is not peremptory, but the defendants may, if they think, proper, commence a new ejectment.-

Rule discharged.  