C. L. Allen, Justice.
It is objected that the motion should have been noticed for the special term in March, and that it now comes too late.
I think the papers show a sufficient excuse for not making it at that term. The facts were not discovered until the 21st of January, 1853. The plaintiff desired to ground his motion partly upon the case as he had a right to do, which was' not settled until the 22d of February following, too late to engross and prepare a copy with the other papers to serve in time for the first Monday in March, the time for holding the Essex Special Term. The motion was noticed for the next earliest day, at the special term in Fulton, and was postponed until this time, at the request of the plaintiff. Under these circumstances the defendants are not chargeable with laches.
2. This brings me to the merits of the motion. I have ■carefully looked at the papers, and into all the cases which have been cited, and which I can find, having a bearing upon the question presented. No impropriety, in my judgment, can be charged upon either of the jurors. They were in the bar-room casually during the recess of the court, availing themselves of the privilege of being at large, which had been [11]*11accorded to them by the court, with the consent of the parties. They did not converse with the plaintiff, or put any questions to him whatever. They maintained a strict silence during the time he was making his remarks, and whatever impropriety there was in listening to these remarks, it seems they left the room as soon as the idea of such impropriety was suggested to their minds. No improper feeling or motive whatever is discoverable in either of them ; and if the motion rested upon the ground of improper conduct on their part, it would at once be denied. Neither would their own affidavits be received for the purpose of establishing any such position, as it has been well and repeatedly settled, that the affidavit of a juror cannot be received to impeach the verdict, for mistake or error in respect to the merits, nor to prove irregularity or misconduct on his part or that of his fellows. Clum agt. Smith, (5 Hill, 560,) and cases cited, (4 John. R. 487.)
But the affidavits'of the jurors may be received as well as others for the purpose of showing improper conduct on the part of the plaintiff; and the question is here, whether such misconduct has been shown on his part as ought to set aside the verdict in this case.
In the case of the People agt. Douglass, (4 Cow. 26,) a case of murder, the court granted a new trial, because two of the jurors separated from their fellows and went to their lodgings and ate cakes and drank spirituous liquors; and the court granted a new trial for that reason; but remarked, in the course of delivering their opinions, that in a civil suit it is perfectly clear that a separation of the jury without, and even contrary to the direction of the court, would not of itself be sufficient to set aside the verdict. In this case the jury separated by the consent of the parties, and the permission of the court, and their separation clearly forms no ground for interference with the verdict.
But while thus separated it was not proper for them to converse with any one, or to listen to any conversation addressed to them; and it was highly improper for the plaintiff to approach any of them, or to address any remarks to either or any [12]*12of them in relation to the subject matter of the suit. It has been well remarked, that when in the course of a trial a juror has in any way come under the influence of the party who afterward has the verdict, that such verdict ought not to stand. Wilson agt. Abrahams, (1 Hill, 207.) But a trifling irregularity on the part of the jury, such as a juror leaving his seat, but having no conversation with any person in relation to the suit, will hot vitiate the verdict, unless there is some reason to suppose that the party moving may have suffered by the misconduct of which he complains, (1 Cow. 221; 2 ib. 589; 3 ib. 355,) and so are the ancient cases.
In the case of Smith agt. Thompson, (1 Cow. 221,) the court decided that where two jurors, after the jury had retired to consider of their verdict, separated from their fellows, and were gone some hours, but returned and joined in the verdict, there appearing to have been no probability of abuse, they would not set aside their verdict. • Many cases are collected in a note to that case—both English and American, the result of the conclusions of all which is substantially as in the case itself— one of them decidedly intimating that conversation with a juryman, or in his presence, by the party in whose favor the verdict was rendered, would he suflicient to set it aside. In the case of Horton agt. Horton, (2 Cow. 589,) the court say, that although the mere separation of the jury, without their sanction, may be-a contempt of court, yet it will not be sufficient to vitiate the verdict—but they remark, that if the slightest suspicion had appeared that the privilege had been abused,to the injury of the party, the verdict should be set aside.
In Knight agt. the Inhabitants of Freeport, (13 Mass. 248,) a son-in-law of the plaintiff said to one of the jurors after empanelling, and before trial, that the cause was of great consequence to him, and that if it went against the plaintiff he should have to pay the costs, and that defending the suit was a spiteful thing on the part of the inhabitants of Freeport; the court said, “ Too much care and precaution cannot be used to preserve the purity of jury trials,” and the verdict was set aside.
The case of Coster agt. Merrit (3 Brod. and Bingham, 257, [13]*13reported in 7 C. L. 633) decides, that if the prevailing party has made communications to members of the jury reflecting upon the character of his adversary, the verdict will be set aside. In that case, it was sworn that handbills reflecting on the plaintiff’s character had been distributed in court and shown to the jury on the day of trial. The court would not receive from the jury affidavits in contradiction, and granted a new trial against the defendant, although he denied all knowledge of the handbills. It was remarked that it might be of pernicious consequence to receive such affidavits in any case, or to assume that a jury had been unduly influenced.
The case of Oliver agt. The Trustees of First Presbyterian Church, &c., in Springfield, (5 Cow. 284,) is similar to the present in some respects. The jury, in that case, had procured a separation through artifice. Before they reassembled, some of them were seen in a bar-room, where the cause was much talked of. The court remarked, “ That in cases where verdicts had been sustained, notwithstanding the separation of the jury, there was no suspicion of abuse, it appearing affirmatively that there was nothing that followed the separation which could be injurious to the party seeking to get rid of the verdict. But in that case, that several of the jurors were found in a public bar-room, where the subject of the suit was much talked of in their presence, and it is not pretended that they did not listen to the conversation.” The court thought it enough that conversation was carried on, relative to the trial, (and it does not appear there by the parties,) in the presence of some of the jurors.
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C. L. Allen, Justice.
It is objected that the motion should have been noticed for the special term in March, and that it now comes too late.
I think the papers show a sufficient excuse for not making it at that term. The facts were not discovered until the 21st of January, 1853. The plaintiff desired to ground his motion partly upon the case as he had a right to do, which was' not settled until the 22d of February following, too late to engross and prepare a copy with the other papers to serve in time for the first Monday in March, the time for holding the Essex Special Term. The motion was noticed for the next earliest day, at the special term in Fulton, and was postponed until this time, at the request of the plaintiff. Under these circumstances the defendants are not chargeable with laches.
2. This brings me to the merits of the motion. I have ■carefully looked at the papers, and into all the cases which have been cited, and which I can find, having a bearing upon the question presented. No impropriety, in my judgment, can be charged upon either of the jurors. They were in the bar-room casually during the recess of the court, availing themselves of the privilege of being at large, which had been [11]*11accorded to them by the court, with the consent of the parties. They did not converse with the plaintiff, or put any questions to him whatever. They maintained a strict silence during the time he was making his remarks, and whatever impropriety there was in listening to these remarks, it seems they left the room as soon as the idea of such impropriety was suggested to their minds. No improper feeling or motive whatever is discoverable in either of them ; and if the motion rested upon the ground of improper conduct on their part, it would at once be denied. Neither would their own affidavits be received for the purpose of establishing any such position, as it has been well and repeatedly settled, that the affidavit of a juror cannot be received to impeach the verdict, for mistake or error in respect to the merits, nor to prove irregularity or misconduct on his part or that of his fellows. Clum agt. Smith, (5 Hill, 560,) and cases cited, (4 John. R. 487.)
But the affidavits'of the jurors may be received as well as others for the purpose of showing improper conduct on the part of the plaintiff; and the question is here, whether such misconduct has been shown on his part as ought to set aside the verdict in this case.
In the case of the People agt. Douglass, (4 Cow. 26,) a case of murder, the court granted a new trial, because two of the jurors separated from their fellows and went to their lodgings and ate cakes and drank spirituous liquors; and the court granted a new trial for that reason; but remarked, in the course of delivering their opinions, that in a civil suit it is perfectly clear that a separation of the jury without, and even contrary to the direction of the court, would not of itself be sufficient to set aside the verdict. In this case the jury separated by the consent of the parties, and the permission of the court, and their separation clearly forms no ground for interference with the verdict.
But while thus separated it was not proper for them to converse with any one, or to listen to any conversation addressed to them; and it was highly improper for the plaintiff to approach any of them, or to address any remarks to either or any [12]*12of them in relation to the subject matter of the suit. It has been well remarked, that when in the course of a trial a juror has in any way come under the influence of the party who afterward has the verdict, that such verdict ought not to stand. Wilson agt. Abrahams, (1 Hill, 207.) But a trifling irregularity on the part of the jury, such as a juror leaving his seat, but having no conversation with any person in relation to the suit, will hot vitiate the verdict, unless there is some reason to suppose that the party moving may have suffered by the misconduct of which he complains, (1 Cow. 221; 2 ib. 589; 3 ib. 355,) and so are the ancient cases.
In the case of Smith agt. Thompson, (1 Cow. 221,) the court decided that where two jurors, after the jury had retired to consider of their verdict, separated from their fellows, and were gone some hours, but returned and joined in the verdict, there appearing to have been no probability of abuse, they would not set aside their verdict. • Many cases are collected in a note to that case—both English and American, the result of the conclusions of all which is substantially as in the case itself— one of them decidedly intimating that conversation with a juryman, or in his presence, by the party in whose favor the verdict was rendered, would he suflicient to set it aside. In the case of Horton agt. Horton, (2 Cow. 589,) the court say, that although the mere separation of the jury, without their sanction, may be-a contempt of court, yet it will not be sufficient to vitiate the verdict—but they remark, that if the slightest suspicion had appeared that the privilege had been abused,to the injury of the party, the verdict should be set aside.
In Knight agt. the Inhabitants of Freeport, (13 Mass. 248,) a son-in-law of the plaintiff said to one of the jurors after empanelling, and before trial, that the cause was of great consequence to him, and that if it went against the plaintiff he should have to pay the costs, and that defending the suit was a spiteful thing on the part of the inhabitants of Freeport; the court said, “ Too much care and precaution cannot be used to preserve the purity of jury trials,” and the verdict was set aside.
The case of Coster agt. Merrit (3 Brod. and Bingham, 257, [13]*13reported in 7 C. L. 633) decides, that if the prevailing party has made communications to members of the jury reflecting upon the character of his adversary, the verdict will be set aside. In that case, it was sworn that handbills reflecting on the plaintiff’s character had been distributed in court and shown to the jury on the day of trial. The court would not receive from the jury affidavits in contradiction, and granted a new trial against the defendant, although he denied all knowledge of the handbills. It was remarked that it might be of pernicious consequence to receive such affidavits in any case, or to assume that a jury had been unduly influenced.
The case of Oliver agt. The Trustees of First Presbyterian Church, &c., in Springfield, (5 Cow. 284,) is similar to the present in some respects. The jury, in that case, had procured a separation through artifice. Before they reassembled, some of them were seen in a bar-room, where the cause was much talked of. The court remarked, “ That in cases where verdicts had been sustained, notwithstanding the separation of the jury, there was no suspicion of abuse, it appearing affirmatively that there was nothing that followed the separation which could be injurious to the party seeking to get rid of the verdict. But in that case, that several of the jurors were found in a public bar-room, where the subject of the suit was much talked of in their presence, and it is not pretended that they did not listen to the conversation.” The court thought it enough that conversation was carried on, relative to the trial, (and it does not appear there by the parties,) in the presence of some of the jurors. It has been denied that if the prevailing party have made communications to members of the jury reflecting upon the character of his adversary, the verdict will be set aside. The case (in Brod. and Bing.) above cited, was for circulating handbills defaming the party, and the jurors swore they had not seen the handbill; yet the court set aside the verdict.— See Graham on New Trials, 47, 54.
I think the .charge of reflecting on the .character of the defendants is in this case elearly made out;; two of the jurors, and Fisk, the constable, swear ito it, and the plaintiff himself does [14]*14not fully deny it in his affidavit. He deposes, it is true, that he did not know he was talking in the presence of any of the jury; but three of the affidavits on the part of the defendants show, that he was told some of the jurors were present, and was cautioned against making his remarks in their presence, and that he replied, he knew his own business, and continued his remarks. The affidavits' show, too, that he detailed the facts, or what he called the facts in his case, saying he had lost several hundred dollars by reason of the failure of defendants to carry his fruit. It is said that plaintiff said no more than what had been proven in court—that the remarks contained no new evidence—and that it is not to be presumed that jurors are to be influenced by what an interested plaintiff says, apart from the evidence given in the cause. The plaintiff did not confine himself to the evidence as detailed in court. He charged the defendants -with the grossest crimes and misdemeanors, and in a manner calculated to- prejudice the minds of his hearers. Besides, if it was strictly true that he did no more than to detail the evidence, it was improper to sum up his cause out of court, in a bar-room, to thé jury or to any of them. A verdict has been set aside where a witness repeated over his evidence apart to the jury, and a repetition by the plaintiff is no better or purer. The court will not inquire whether the acts complained of influenced the verdict. In the case before cited (in Brod. and Bing.) the court would not permit affidavits of the jurors to be read, and would not assume that the minds of the jury had been influenced. And in the case of Whitney agt. Whitman, (5 Mass. 405,) the court refused to examine jurors to prove that they were not influenced by the paper which had been improperly put before them; they said it was impossible to decide in what manner their minds were influenced in forming their verdict.
In Knight agt. Inhabitants of Freeport, (17 Mass. 218,) the court say, “ The attempt to influence the juror in this case was grossly improper, and ought to be discountenanced. It is not necessary to show that the mind of the juror was influenced by the attempt. Perhaps it is not in his power to say whether he was influenced or not. If he was, there is sufficient cause to [15]*15set aside the verdict; and if he was not, and the party who has gained the verdict has a good cause, he will still be entitled to a verdict upon another trial. We cannot be too strict in guarding trials by jury from improper influence. This strictness is necessary to give due confidence to parties in the results of their causes. Too much care and precaution cannot be used to preserve the purity of jury trials, and every one ought to know that for any, even the least intermeddling Avith jurors, a verdict will always be set aside.”
If the plaintiff has a good cause of action in this case, perhaps he ought to recover a much larger sum than the amount of the present verdict, and by a new trial, if he makes out his case, and does not interfere improperly with the jury, he will finally be benefited by obtaining the whole sum to which he claims he is entitled.
On the whole, I am of opinion that the verdict should be set aside, and a new trial granted. The defendants contend that the plaintiff should pay the costs of the trial. It has been usual, I believe, in like cases, to let the costs abide the event. I shall do so here, but plaintiff must pay $10 costs of the motion.