
    William S. Parham vs. Thomas Harney.
    Where a jury, in the trial of an action for assault and battery, after having retired to make up their verdict agreed, immediately upon entering into the jury room, that each should put down a sum which should be divided by twelve, and that the result should give the amount of damages to be found by their verdict; and this agreement was carried out and acted on ; held that the verdict so found was irregular, and should be set aside.
    Whether the affidavits of jurors to establish the conduct of the jury while in the jury room are admissible, on a motion for a new trial ? Query.
    
    In error from the circuit court of Hinds county, Hon. Morgan L. Fitch, presiding judge.
    Thomas Harney brought his action for assault and battery against William S. Parham, founded on the alleged battery and mutilation of the person and left hand of the plaintiff by the defendant, on the 11th day of June, 1838; the damages were laid at twenty-five thousand dollars.
    The defendant pleaded not guilty, and son assault demesne; on the first of which the plaintiff took issue, and to the second replied that the defendant committed the trespass in his own wrong. Afterwards the plaintiff had leave to withdraw his replications, and replied to the second plea, that the defendant had used more force and violence than was requisite to repel the plaintiff’s assault; this plea concluded with a verification; to which no issue was tendered by the defendant.
    At the June term, 1842, a trial was had, which resulted in a verdict for the plaintiff, for $3,602 50. The defendant moved for a new trial, which was refused. On the trial of the motion, the defendant offered certain affidavits, from which the following facts appear:
    J. W. Dougherty, a deputy sheriff, made oath that after the jury retired to their room, it was proposed by one of the jury,. F. H.. Robinson, that each juror should put down in figures the amount of the damages that he thought the plaintiff entitled to, to be placed in a hat and drawn out; and that the aggregate amount should be divided by twelve; that this proposition was made and agreed to before the jurors had stated to each other the amount of damages which the jurors respectively thought the plaintiff entitled to; that the jurors proceeded and placed in the hat their several amounts, and when drawn out, there were four tickets for $300 each ; one for $30 ; one for $10,000 ; and he thinks one for $20,000; that each juror acted separately from the others in making out his ticket with the amount of damages thereon. There were three deputies in the room with the jury. Immediately after going up to the jury room and before all of the jurors had got up stairs, one of the jurors asked for some water, and the witness immediately retired to the court room and took a pitcher of water to the jury, and when he arrived there he heard the proposition made by Robinson; that it was acted upon, and the sum thus obtained was the same as the verdict of the jury.
    I. B. Fairchild, also a deputy sheriff, testified in substance the same with Dougherty, with this addition; that he saw no paper read by the jury; heard one of them remark that it was the only mode in which the jury could come to a conclusion; that the computation and verdict were made out on a bench standing at the door of the jury room, and some of the jurors holding their hats before a window that was broken, to keep the candle from being blown out, and the others standing about, some out of, and others in the room.
    Patrick Magee proved that Robinson wrote out the verdict of the jury.
    L. B. Seaton, a deputy sheriff, proved that, about an hour after the jury had rendered their verdict, he went into the room which the jury had occupied when they made out their verdict, and he found upon a bench, about three feet from the door of the jury room, outside of the room, twelve pieces of paper, with amounts in figures upon them; one with $10,000; one of $5000; one or two of $2000; one of $1000; four of $500 each; one of $800, or $850 ; one of $750, or $700; and one of $30, or $36.
    The'defendant also offered the affidavits of two of the jury who tried the cause; and which, in substance, established the same facts that the other witnesses deposed to. The introduction of these various affidavits, on the motion for a new trial, was objected to by the plaintiff, and the objection sustained by the court, to which exceptions were taken.
    The errors assigned were: 1. The permission of the court below to file a new replication, and withdraw the old.
    2. The refusal to grant a new trial.
    3. The jury were sworn to try the issue joined, when there was no issue joined.
    4. If there was an issue the verdict should have been set aside, as not responsive to that issue.
    5. The court erred in rejecting the affidavits of the jurors.
    [The arguments of counsel on the assignments of error not passed upon by the court, are omitted.]
    
      Mayes and Clifton, for plaintiffs in error.
    1. The court erred in not granting the new trial, on the affidavits of Dougherty, Fairchild, Magee, and Seaton.
    If the jury agree that each shall put down a sum and divide the aggregate by twelve, the quotient to be the verdict, it shall be set aside. Smith v. Chetham, 3 Caines, 53; Harvey v. Richett, 15 John. R. 87; Roberts v. Fails, 1 Cówen, 238; Warner v. Robinson, 1 Root, 194: Ellege v. Todd, 1 Humph. R. 44; Bennett v. Baker, Ibid. 399.
    If, however, after each of the jurors has conscientiously declared his amount of damages, they agree that the sums shall be added, and divided by twelve, as the average of their opinions, it will not be cause to set aside the verdict. Dana v. Tucker, 4 Johns. R. 482; Grinnell v. Phillips, 1 Mass. R. 541; Shobe v. Bell, 1 Rand. 39 ; Cowperthwait v. Jones, 2 Dallas, 55. The case at bar does not come within this distinction. And it also plainly appears that some one of the jury, at least, acted fraudulently by putting down $10,000, and also from the evidence of Seaton, there can be no doubt but that the sum thus improperly produced was doubled by the juror who made the calculation, and the jurors thereby were deluded into a verdict for double the amount produced by the mode improperly agreed on.
    2. The court erred in rejecting the affidavits of the jurors. The ancient law and practice were to receive the. affidavits of jurors. As late as the 8th of George II., in Phillips v. Fowler, 1 Barnes, 441, the affidavits of the jurors were received as of course. In Parr v. Seames, 1 Barnes, 438, judgment was stayed to allow the affidavit of jurors. In Aylett v. Jewell, 2 W. Black. 1299, it was taken for granted, that the jurors’ affidavit should be produced. In Smith v. Chetham, 3 Caines, 57, Spencer, J. says : “ On examining the English authorities prior to the revolution, it appears to me that the information of jurors as to what passed, may be received. The only decision to the contrary, is in Keble, (Price v. Powers, 1 Keb. 811,) but it is a very unintelligible and illy reported case. The determinations in Bunberry and Barnes, (Bellish v. Arnold, Bunb. 51, and Phillips v. Fowler, Barnes, 441,) show that the information of jurors may be received, and I cannot see any principle of law invaded by it.”
    The rule of law as it existed in England prior to the revolution, has been adopted, and yet prevails in several of the states.
    In Warner v. Robinson, 4 Root, 194, the affidavits of jurors were received. So in Grinnell v. Phillips, 1 Mass. R. 541. So also in Shobe v. Bell, 1 Rand. 39. The point was expressly made in Elledge v. Todd. 1 Humph. 44, and decided that the jurors’ affidavit was admissible.
    That this was the settled law of England up to the Revolution, cannot be controverted. That no statute has changed it we all know. It however seems now to be settled in England, and in many of thejStates of this confederacy, that such affidavits shall not be admitted. How has this change been produced 1
    
    The foundation of the overthrow of this ancient rule seems to be the opinion, or rather the legislation of Lord Mansfield, in Vaise v. Delaval, 1 Term Reports 11, which has been adopted and followed by many of the States. Lord Mansfield and the American courts who have followed him, proceed upon what they conceive to be the impolicy of admitting such evidence. Now what is or is not sound policy, is a question for the legislature, not for the judiciary. And the ancient law having been settled, and up to the Revolution held to admit the affidavits of jurors, the changing of this rule by the courts was clearly an act of usurpation. The iine between the legislative and judicial power should be clearly defined and constantly kept in view, to guard against that dangerous uncertainty that ever must arise from the invasion of the office of legislation by the judiciary. Let it not be forgotten that we adopted the common law of England, and never did adopt the opinions or resolutions of Lord Mansfield or of any of the courts of the States of this Union, where they are plainly against that law as settled and held before and up to our separation from England.
    But if the courts will, upon their views of policy, invade the province of the legislature, and instead of expounding and applying the law as it is, change or make law, still the apprehended evils which led to this judge-made law as it is now held in England and many of the States, do not apply to this case. Whatever evils we may apprehend from receiving the affidavits of jurors to impeach their verdicts when they stand alone, these evils cannot arise when the affidavits of jurors are produced merely to corroborate and support the affidavits of other witnesses, as in the present case.
    Harney, in proper person.
    1. On the question as to the refusal to grant a new trial on the ground of misbehavior on the part of the jury, cited the following authorities: 4 Binney, 155; Rex v. Almon, 5 Burr. 2687; 15 Johns. 309 ;. Cogan v. Eledoti, 1 Burr. 383; Smith v. Cheatham,, 3 Gaines, 61; Copperthwait v. Jones, 2 Dallas, 55 ; 3 Caines R. 57; Executor of Breedon v.Breedon, 1 Bos. &Pull. 329 ; Cluggage v. Swan, 4 Binn. 150; Shobe v. Bell, 1 Rand. 39; Martha v. Bailey, 1 Exch. R. 9.
    2. On the question whether the affidavits of jurors, seeking to impeach their verdicts, are admissible testimony, he cited the following authorities: Friar v. The State, 3 How. 422; Rex v. Almon, 5 Burr. 2687; Vaise v. Delaval, 1 Durnf. & East, 11; Pierce, Executor v. Warren, Executor, 1 H. & Munf. 385; Cochran v. Street, 1 Wash. 105; Cluggage v. Swan, 4 Binn. 150; Martha v. Bailey, 1 Exch. R. 9; Jackson v. Dickenson, 15 Johns. 309; Crawford v. The State, 2 Yerg. 60.
   Mr. Justice Clayton

delivered the opinion of the court.

The principal ground of error assigned in this cause, is, the misconduct of the jury, upon the trial, in the court below. Without consultation or deliberation about their verdict, they agreed, immediately upon entering their room, that each should put down a sum, which should be divided by twelve, and that the result should give the amount of damages to be found by their verdict. This rale was adopted, and acted on. The several amounts put- down by the jurors ranged from thirty dollars to ten thousand dollars. This mode of making up a verdict has been repeatedly condemned by the courts of the country. 10 Wend. 595; 1 Humph. 43; 1 Cow. 238; 15 Johns. 87. It substitutes the fluctuating and uncertain hazards of a lottery, for the deliberate conclusions of their reflections, and interchange of views. Graham’s Pr. 315.

This misconduct was established by the testimony of three witnesses, who were not of the jury; deputy sheriffs who saw the proceeding, and the tickets upon which the figures were written, placed in a hat, and drawn out, to form the basis of their finding. Such a course cannot meet with judicial sanction.

The judgment will be reversed, and a new trial awarded.  