
    Elledge vs. Todd.
    If a jury, for the purpose of ascertaining what amount of damages shall be assessed, agree among themselves that each member of their body shall set down a sum according with his own judgment, and that the aggregate amount shall be divided by twelve and the result returned as their verdict, the verdict so ascertained and returned mustbe set aside and a new trial awarded.
    The affidavit of one of the jurors is admissible evidence to establish the mode practised in fixing the amount of damages.
    James Todd instituted an action of trover in the circuit court of Cannon county on the 17th'day of June, 1838, against Isaac W. Elledge, to recover of him the value of a wagon, a bay horse, two wagon bridle-s, two horse collars; &c. &c. This property he alleged belonged to him, that it x x */ o <-> was worth five hundred dollars, and that it was converted by Elledge to his own use. .Elledge pleaded not guilty; issue was taken upon this plea, and at the May term, 1839, the honorable Edwin A. Keeble, special judge, presiding, the cause was submitted to a jury, who returned a verdict of seventy-seven dollars against the defendant, Elledge. El-ledge moved the court for a new trial, and as the ground of said motion, amongst other things, ^exhibited the following affidavit:
    “In this cause Joseph Ramsay makes oath that he was one of the jurymen who tried the case of Todd vs. Elledge/ that the jury were divided ánd could pot agree, and that they never could have agreed upon the verdict returned but for the fact of having previously agreed that each member of the jury should set down a sum, that they should then add the several sums together and divide the aggregate amount by the number of the jury, and the sum so ascertained should be their verdict. The jurymen then proceeded each to set down their respective amounts. One of the jurymen set down two hundred and fifty dollars; another set down nothing. The several sums were then added up, and the aggregate was accordingly returned as their verdict. Affiant confidently believes that this was the only way a verdict could have been rendered in the cause.”
    The court refused to set aside the verdict, but rendered a judgment for the damages assessed. The defendant took his, bill of exceptions to the opinion of the court and obtained an appeal in the nature of a writ of error to this court.
    
      Ready, for plaintiff in error.
    1. The court should have granted a new trial for the misbehavior of the jury. 15 Johnson, 87: 1 Oowen, S38.
    S. The affidavit of a juror is competent evidence of the fact of misbehaviour. 3 Cain’s Rep. 57: 1 Randolph, 39.
    
      II. M. Burton, for the defendant in error,
    cited Cassell vs. Franklin, 2 Ten. 201: Dana vs. Tucker, 4 Johnson, 487: Cowperthwaiie vs. Jones, 2 Dallas, 55: Crawford vs. State, 2 Yerger, 65: Hudson vs. State, 9 Yerger, 410.
   Turley, J,

delivered the opinion of the court.

The question in this case is presented upon the correctness of the opinion of the court below in disallowing a new trial upon the affidavit of a juror stating in substance, that the jury, for the purpose of ascertaining what should be the amount of damages assessed, agreed among themselves that each member of their body should set down a sum, according with his own judgment, and that the aggregate amount should be divided by twelve and the result returned as their verdict, which was done.

This affidavit was admissible, its truth is not contradicted, and we think that it furnishes a legal ground upon which a new trial should have been granted.

In the case of John Baker vs. Thomas Bennett, determined by this court at Knoxville, in July, 1839, it.is held “that a jury shall not agree among themselves that each shall specify the amount for which he is willing to find a verdict, divide the whole by twelve, and return the sum thus produced as the amount of their deliberations, because it is in the nature of gambling for a verdict, and places it in the power of one juror to make the amount unreasonably great or small.’’ This case is in point, although in it the new trial was refused, because it was thought that no such agreement had been made by the jury.

Reverse the cause, and let it be remanded for a new trial.  