
    Luttrell vs. Maysville and Lexington Railroad Co.
    Case 38.
    Ord. Pet.
    APPEAL FROM MASON CIRCUIT.
    1. After the jury had retired, a witness who had been examined on the trial, was sent for by them, admitted into the jury room, and re-examined without the knowledge or consent of the court or the parties.
    Held, that a new trial should, for this, have been granted upon motion. (Cíoil Code, see. 369.)
    2. The safe rule is, to regard the misconduct of the jury asa sufficient ground for a new trial, where the party complaining of it has not connived at nor been instrumental in any manner in producing it.
    Case Stated.
    Appellant, Lucien S. Luttrell, subscribed to a subscription paper of stock in the Maysville and Lexington railroad company, having the following caption: “We, the undersigned, citizens of Mason coun- * ty, state of Kentucky, hereby subscribe for the ‘ number of shares, in the capital stock of the Mays- ‘ ville and Lexington railroad company, set opposite ‘ our names, respectively, and hereby promise and £ agree to pay fifty dollars on each share so subscribed, ! in such instalments, and at such times and places, í as may ke required by the board of directors of ‘ said company, upon condition that said railroad shall * be built upon what is termed the upper or eastern route.”
    Appellant made three subscriptions of stock upon this paper one of which, with certain conditions, was afterwards erased. The second is as follows: Lucien S. Luttrell $300, provided said road runs through my farm, as surveyed. The third as follows: ‘'Lu-den S. Luttrell 4 shares, $200.”
    Upon the last subscription the company sued him in this action.
    Wadsworth, for appellant—
    Argued—1. The verdict of the jury is contrary to the weight of the evidence. The subscription of Luttrell was “upon condition that said railroad should ‘be built upon what is termed the upper, or eastern ‘ route.” The line through Helena was “termed” the upper route, and the road was not built upon that route. It is insisted that the condition of Luttrell’s subscription was broken, and he was released.
    2. If the condition was not broken then the subscription was obtained by fraud, and the court erred in not giving the fisrt instructions asked by appellant.
    3. The instruction given by the court was misleading and erroneous—-First. Because it makes the acceptance of the subscription of appellant, by the company, in the sense in which appellant understood it as made, material. Second. Because it makes it necessary that the eastern route should have been changed. It was successfully argued that the eastern route had not been changed.
    4. The jury, after their retirement, without the knowledge or consent of the court or parties, sent after and interrogated a witness in the jury room. They had been out an hour or more, and upon the answer of the witness, one of the juryman remarked, “that settled the question with him," and the jury at once made a verdict. The Code requires the testimony to be given in open court, (sec. 351;) that no communication is to be made to the jury after retirement, unless by order of court. (Sec. 349.) Such was always the policy of the law. (PI. Cr. 307, Lord Hále; Metcalfe vs Dean, Cro. Eliz. 189; Perine vs Vanhote, 1 South. 146; The State vs Brazil, Geo. Decis. Part 2, 107; Smith vs Graves, 1 Brevard, 16.)
    We regard it of no consequence whether the testimony of the witness, called before the jury in their room, did or not influence the verdict. It is the principle. We cannot know how much influence the testimony had. (5 Mass. Rep. 405; Pick. Rep. 296.)
    The circuit court should have granted a new trial for this misconduct of the jury. (Civil Code, section 369.)
    
      F. T. Hord, for appellee—
    Appellant resists the pajunent of the subscription made on the ground that Gen. Collins, before he, appellant, made it, represented that the “upper or eastern route” would run through Helena. He does not contend that he confided in or acted upon the faith of the representations thus made, but annexed conditions of his own in writing. The road was located and partly built “upon what is termed the upper or eastern route.”
    There was no exception taken to the judgment of the court, overruling the motion for a new trial, nor to the ruling of the court in relation to the witness having gone before the jury after their retirement.
    The circuit court properly overruled the instructions asked by appellant, because they were not applicable to the case. The first instruction does not state to which subscription of appellant it refers, (he having made three subscriptions of stock) and this suit being for one subscription only.
    
      The circuit court properly gave the instruction asked by appellee, which was, “that if the jury believed, &c., that the road was located and partly constructed on the “upper or eastern route,” &c., they must find for plaintiff, &c.” One branch of this inquiry is settled by the case of M. L. R. R. Co. vs McMillen, 15 B. Mon. 218.
    The road having been located and partly built upon the route embraced in the condition of appellants’ subscription, he cannot avoid the payment of the stock, by showing, by parol, conditions other than those contained in his written condition annexed. (Wight vs Shelby R. R. Co. 16 B. Mon. 6.)
    Oct. 1, 1857.
    1. After the jury had retired, a witness who had been examined on the trial, was sentfor bythem, admitted into the jury room, and re-examined without the knowledge or consent of the court or the parties. Held, that a new trial should, for this, have been granted upon motion (Civil Code, sec. 369.)
   Judge Simpson

delivered the opinion of the court.

The only question in this case arises upon the decision of the court below, in overruling the motion of the appellant for a new trial.

That decision we deem correct, so far as the motion was based upon an objection to the verdict on the ground that it was “contrary to the instructions of the court, and against the weight of the testimony.”

But there was another ground of objection which was much more formidable, and which in our opinion should have been deemed substantial and available.

It appeared that after the jury had retired a witness, who had been examined on the trial, was sent for by them, admitted into their room, and re-examined, without the knowledge or consent of the court or the parties.

This fact was fully established by the witness himself, who also stated that he was a witness for the appellant on the trial, that when he went into the jury room the jury had been there an hour or two, and that they agreed upon a verdict shortly after he left the room.

The eourt below was of the opinion, that although it was improper for the j ury to send for and examine the witness out of court, still, as he was the witness of the defendant, and the one upon whose testimony he mainly relied to establish his defense, and had been fully examined on the trial, in reference to the same matters concerning which, as he states in his affidavit, hé testified in the jury room, that the defendant was not prejudiced by this misconduct of the witness and jury, and therefore it did not constitute a sufficient ground to sustain the defendant’s motion for a new trial.

2. The safe rule is, to regard the misconduct of the jury as asufficientgroundi for a new trial, where the party complaining of it has not connived at nor been instrumental in any manner in producing it.

One of the grounds enumerated in the 369 section of the Code of Practice, upon which a new trial may be granted, is the misconduct of the jury or the prevailing party.

This misconduct should, no doubt, be of such a character as might affect materially the substantial rights of the party complaining of it.

The effect produced, by a re-examination of a witness in the jury room, it is impossible in any case to determine. The jurors in the re-examination of the witness may not confine themselves to legal questions, but matters may be inquired into by them which they may suppose to be proper and pertinent, and which may have weight and influence with them in making up their verdict, but which, in reality, are irrelevant and illegal. Any inquiry as to the extent of the prejudice which the party against whom the verdict is rendered may have sustained by such misconduct must be very unsatisfactory. The jurors themselves are not permitted to testify on the subject, it being against the policy of the law to allow them to prove misbehavior in themselves or their fellow jurors, as a ground for a new trial, and therefore the result of such an inquiry would, in most cases, have to depend upon the statement of the witness himself. He might have a very imperfect recollection of what occurred in the jury room, and' might wholly misapprehend the bearing and effect o’f the statements he made to the jury. The safest rule* therefore, to adopt in such cases, is to consider the misconduct of the jury as a sufficient ground for a new trial, where the party complaining of it has not connived at, nor been instrumental in any manner in producing it.

Wherefore the judgment is reversed, and cause remanded for a new trial and further proceedings.  