
    James Graves vs. Julius C. Monet.
    Unless a bill of exceptions be signed by the judge, it 'will not, though spread out in the record, be noticed.
    Although persons not of the jury intrude upon them in their retirement, and one of the jury during their retirement separate himself from his fellows for a period, yet these facts, though irregularities and reprehensible, will not be grounds for reversing the judgment, when it does not appear of record that any influence was attempted on the jury or the absentee, to procure the verdict rendered by them.
    In error, from the circuit court of Hancock county; Hon. Y. T. Crawford, judge.
    Julius C. Monet sued James Graves, in detinue, for the slave Lorant. Yarious pleas were filed, and issues taken; and the cause was submitted to a jury, who found for the plaintiff below. There is spread cut in the record a paper purporting to be a bill of exceptions to opinions of the court on the trial, in which, what purports to be the evidence for the plaintiff is embodied j but this paper is not signed by the judge; it is sealed, but the signature is blank. There appears also in the record what is termed the protest of John Henderson, Esq.; the attorney for Monet, against the judge below signing the bill of exceptions offered, without it was amended in its recital of the facts; and the protest contained what it stated was a correct recital of the facts in the points in which the bill of exceptions was alleged to be defective. This protest was signed by two members of the bar, who were not attorneys in the case. The defective bill of exceptions and this protest are not further noticed, as they were disregarded by this court.
    There was another bill of exceptions, duly signed, taken to the refusal to grant a new trial; in which was spread out the following affidavit, signed by four of the jurymen, viz.: “ After the jury left the court to consider of their verdict, and while considering of their verdict, and before the said verdict was agreed on, sundry persons, not of the jury, passed into the jury-room; and further, that one of the jurors left the jury-room and absented himself from the jury for some time, while said jury were considering of their verdict.”
    The court below overruled the motion for a new trial, and the defendant prosecuted this writ of error.
    
      W. P. Harris, for plaintiff in error.
    (Mr. Harris’s argument was directed entirely to the questions presented by the first bill of exceptions, and is not therefore inserted.)
    
      Montgomery and Boyd, for defendant in error.
    Was it error to refuse the new trial, because of the supposed irregularities or misconduct of the jury 1 We think not.
    The evidence in support of that part of the motion, certainly throws no suspicion on the verdict. As to the first part of it, there is no pretence that the persons who “passed into the jury-room,” interfered in any way with the jury, or that they remained there any time, or in fact that they were not rightfully there. It is said they were not “ of the jury,” but they may have been the officers of court, the sheriff and his deputies, or the judge. It may have been, that these persons passed through the room in leaving the court-room, or were directed to go that way by the court, and under the charge of officers. Until it was positively shown that there was some interference with the jury, or tampering with their verdict, the court was not bound by law to set aside their verdict. Graham on New Trials, ch. 4, pp. 63-91.
    As to the other part of this assignment, it may be admitted that a juror ought not to leave the jury-room till the deliberations of the jury are concluded. The act may subject him to censure and perhaps to penalties, under certain circumstances, but will not necessarily affect the verdict. And in this case, the affidavit does not show that, in leaving the jury-room, the juror went out of the house or into the presence of any persons other than the jury. The verdict will not be disturbed without positive evidence of misconduct, and of so gross a character as to lead to the reasonable conclusion that the finding of the jury has been produced by improper influences. Nothing of the kind appears here ; the showing of the affidavit scarcely lays the foundation for an unfavorable inference. Graham on N. T. 82, 84, 85, 87.
    We consider it also inadmissible to call the jurors to impeach their own verdict; for at last it leaves a case of oath against oath.
   Mr. Justice ThacheR

delivered the opinion of the court.

Monet instituted an action of detinue in the circuit court of Hancock county, to recover a slave from Graves. A verdict was rendered for Monet, and thereupon Graves sued out a writ of error.

In this case, there is either a diminution of the record, or, if perfect, it does not present legitimately all the facts as descanted upon by the counsel for the plaintiff in error in his brief. The first bill of exceptions extends to the close of the testimony in behalf of the plaintiff below. This bill of exceptions, although treated as having been signed by the court, as appears by rather an anomalous document in the record, filed as a protest of counsel against its being signed by the court, has not, in point of fact, the signature of the court. However the fact may be, we must be controlled by the record, and are therefore compelled to disregard the first bill of exceptions. The second bill of exceptions, in consequence of this defect of the record or circumstance in the case not containing the whole evidence of the cause, we are obliged to look at the case only with reference to such points as are prominent enough of themselves to raise a question respecting the propriety of the judgment. These points are the incidents, that the jury in their retirement were intruded upon by strangers to their body, and that one of their number, during their retirement, separated himself for a period from his fellows, as appears by the affidavits of some of the jury. There is, however, no statement in the record that an improper or any influence was attempted upon the jury or the voluntary absentee, to procure the verdict rendered by them. Although both the circumstances were irregularities, and therefore reprehensible, they do not warrant the setting aside the verdict. Graham on N. T. 91, 92.

Judgment affirmed.  