
    SCHENCK, Late Collector of Amwell, against STEVENSON, Adm’r of Corson, Late Collector of Hunterdon County.
    A member of the board of freeholders may be a witness in a suit commenced by their order. Affidavit of a juror not allowed to prove what was the ground of the verdict.
    This was a motion to set aside the inquisition of the jury of inquiry, which had been had in the cause. There was some evidence that this suit was prosecuted at the instance of the board of chosen freeholders of the county of Hunterdon ; the board had actually paid money towards carrying on the suit. One objection raised against the inquisition, was, that the sheriff admitted Andrew' Reader, one of the members of the board, as a witness before the jury of inquiry. The inhabitants of the county are made legal witnesses in such cases, by express act of Assembly. The question therefore, was — whether Mr. Reader, being a member of the board, of itself, created a legal objection [*] to his competency as a witness, distinct from his being an inhabitant of the county.
    
      Mr. Leahe, who took the objection, contended —
    That it-did; that the board of chosen freeholders are a body politic and corporate; that the members of the board are contra-distinguished from the citizens of the county; that .the board hath great powers; that the [282] members were liable to a penalty for not attending the board; that they were to receive a compensation for their services; that a member of the board is an officer, that an officer always hath an interest in his office; 5 Comy. Dig. 542; that the word inhabitant .does not include a chosen freeholder; that the word is not abstractly to be considered, but that an officer having an interest in his office is to be excluded; that a party who-supported a cause, could not be a witness, Hardw. Rep. 402; that the smallest interest excludes a witness, 2 Vern, 318; and that where a sheriff hath admitted unlawful evidence, or rejected lawful, the inquisition should be set aside.
    
      Mr. Maxwell, on the same side, said
    — that the objection to the witness, did not arise from his being an inhabitant of the county, but from his being a member of a corporation, at whose instance this suit was prosecuted, and who had actually advanced money to carry it on; that as such, he stood in a distinct situation from an inhabitant of the county, merely as such.
    
      
      
        Pat 402, Rev 463.
      
    
    
      
      
        Peakes Nisi Prius, 155. Vide Peake's Ev. 149.
      
    
   Pennington, J.

— Observed—That even if the witness was a party on the record, that itself would not disqualify him; that it all turned on the question of interest. He recollected a case were an action was brought against the governors of á hospital; several of the governors were offered as witnesses, and objected to; but Lord Kenyon admitted them, on the ground of their having no personal interest in the action. He believed, however, it was a modern case, and could not be read.

[*] Mr. Maxwell said — That in the ease alluded to, Lord Kenyon had drawn a distinction between parties who were mere trustees of a public charity, and that of a mayor and citizens who might have a great interest in the event of the case.

Mr. R. Stockton and Mr. Ewing, on the other side, answered — That the witness objected to, Mr. Reader, was not a party on the record; that he had no personal interest different from any other citizen of the county, and that the interest, if any such there was, was provided against by the statute; that acting in his corporate capacity, he was not personally liable.

The Court were clearly of opinion, that Mr. Reader was a legal witness ; that even if he had an interest, it arose from the circumstance of his being an inhabitant of the county; and, therefore, came within the statute provision in that respect.

Mr. Leake offered to read the affidavit of one [283] of the jury of inquiry, stating the items allowed by the jury, and charged against the defendant in making the inquisition, to show that the jury had erred.

This was objected to by the counsel for the plaintiff's, on which, Mr. Leake cited the following authorities in support of it: Sayre on Damages, 105, 212, 235; Hard. Rep. 358; 1 Wil. 239; 2 Bur. 383; 8 Brown P. Cases, 217; 1 Id. 413; 6 Id. 416; 1 Vern. 159; 1 Barnes, 149, 315, 321; 2 Barnes, 191; 7 Mod. 55; 1 Dallas, 88; Bunb. 411 Stra. 642.

Mr. Maxwell, on the same side, said — That a stronger reason existed for the admission of affidavits of jurors of inquiry than that of jurors on trials of issues at circuit; because, he said, that the report of the judge supplied the place of such affidavits.

Mr. Ewing and Mr. Stockton, contended — -That a single juror could not on oath, inform the court on what grounds he and his fellows found their verdict; that there was no authority to justify it.

[*] Kirkpatrick, C. J.

— Was of opinion, that the affidavit could not be read.

Rossell, J.

— Thought that the case in Dallas, in point, and was for allowing the affidavit to be read.

Pennington, J. — Said, that he had come across cases on this subject, in the course of his reading, which he thought, at the time of reading too rigid, that shut out affidavits of jurors, which he inclined to think ought to have been read; but he did not feel prepared to go to the length of admitting this affidavit; it was nothing less than calling on the juror to disclose to this court, the ground and foundation of the verdict; that they admitted this item and rejected that. If this should become the practice, in every motion for a new trial, the affidavits of jurymen will be produced; and, in all probability, on both sides; one juryman will remember one thing, and another another, from which, endless litigation and confusion will ensue; it will also be one step towards taking the trial of fact from the jury, and placing it in the court.

The affidavit rejected.

On the trial in this cause, there had been a demurrer to evidence, the jury not assessing the damages conditionally; on rendering judgment, the writ of inquiry issued; from the facts which were brought on to the record by means of the demurrer to evidence, Mr. Leake endeavored to show, that the jury of inquiry had done the defendant injustice; but the court were unanimously of opinion, that the jury had done right, and therefore,

Refused the rule.

Cited in Kennedy v. Kennedy, 3 Harr. 450; Lindauer v. Teeter, 12 Vr. 259  