Opinion
July Term, 1811.
From Stokes.
1. New trial. Several of the jurors swore that they, in forming their verdict had misconceived a material fact sworn to by one of the witnesses; and the witness also swore that the fact was otherwise than as understood by the jurors. This is no good ground for a new trial, particularly where the affidavits be in the handwriting of the party asking for a new trial.
2. During the trial a man declares to a bystander that he knows more of the subject-matter in controversy than all the witnesses examined, and then leaves the court before a subpoena can be served on him. This is no good ground for a new trial.
THIS was an action of trover brought to recover the value of a horse claimed by the plaintiff. Upon the trial there was evidence adduced on both sides, each party setting up a claim to the horse. The evidence was commented upon at length by the counsel on each side, and stated at large by the court in the charge to the jury. There was a verdict for the defendant. A rule for a new trial was granted; and, in support of the rule, the plaintiff's counsel read to the court sundry affidavits: 1. Of several of the jurors who tried the cause, stating that they had not correctly understood the evidence of one of the witnesses introduced in behalf of the plaintiff; that from a misconception of a material fact deposed to by the witness, they (38) were induced to find a verdict for the defendant. 2. Of the witness referred to by the jurors in their affidavits, explaining at large the material fact aforesaid in a way different from that in which the jurors swore they had understood it upon the trial. 3. Of a Mr. Dobson (a bystander), who swore that during the trial a man in his hearing observed that the evidence appeared to be strong against the defendant, and that he knew more on the subject in dispute than all the witnesses present. 4. Of the plaintiff, who swore that as soon as he was informed of this declaration made by the man, he used all possible diligence to get him subpoenaed, but that the man left court before a subpoena could be served on him. These affidavits were all in the handwriting of the plaintiff. The court discharged the rule for a new trial, and the plaintiff appealed to this Court.
It appears strange that the facts stated by the plaintiff's witness should have been misconceived by the jury, as the evidence was commented upon at length by the counsel on each side and stated at large by the court in the charge to the jury, with the necessary remarks, showing its bearing on the points in dispute. Yet some of the jurors signed an affidavit, in the handwriting of the plaintiff, setting forth that they were deceived. Admitting this to be the case, surely little reliance ought to be placed on the affidavits of jurors procured at the instance of the party. Every plaintiff or defendant against whom a verdict is rendered is apt to be displeased; and in the street, or some public house, where jurors too commonly assemble, they are attacked by the party cast, and by address, entreaty, and sometimes rewards, are prevailed upon to sign something in favor of the party, although they have, under the solemn obligations of an oath, rendered their verdict against (39) him. Such tampering with jurors ought to be discountenanced, and when their affidavits are offered upon the subject of their verdict they ought to be received with many grains of allowance, and their weight balanced by the degree of influence which the party obtaining them is calculated to produce.
The circumstances disclosed by Dobson and the plaintiff, in their affidavits, do not furnish any ground for a new trial. Were new trials to be granted for reasons like those contained in these affidavits there would be no end to suits; days might be spent in investigating their merits, and verdicts might be rendered, but all to no purpose. They must all be revised, if the party cast has been artful enough to procure some person to be present at the trial who shall declare to a bystander, during its progress, that he knows a great deal upon the subject of dispute, and then leave the court, so that a subpoena, which the party in due time takes out, cannot be served on him. If, indeed, the affidavit of this witness had been taken, and it had disclosed important evidence for the plaintiff, the case would have been very different. But it does not appear whether his evidence would have been material or not. To these reasons for discharging the rule for a new trial may be added another. It appears that each party claimed title to the horse, and evidence was introduced on both sides. In cases where there is a contrariety of evidence the court will not grant a new trial, unless the evidence on one side greatly preponderates. Let the rule for a new trial be discharged.
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