| Miss. | Apr 15, 1885
delivered the opinion of the court.
On the motion for a new trial the defendant, against whom a verdict had been rendered, introduced several of the jurors as witnesses to the misconduct of the officer who had the jury in charge, and by them proved that he had.taken part in the deliberations of .the jury, and according to the affidavit of one of the jurors who was not examined in open court, it is stated that he had “ argued in favor of a verdict for the plaintiff.” On the other hand, several other jurors testified that the officer, a garrulous and noisy old man, while talking freely in the presence of the jury and to its members on. other subjects, said nothing about the case and took no part in .its decisions so far as they knew or heard, but that when the verdict had been agreed on he advised as to the form in which it should be reduced to writing. The officer testified that he said 'nothing to any member of the jury about the case during the deliberations of the jury, but that when a verdict had been agreed on one of the jurors asked him how to put it in form) to which he
We apprehend that the learned judge below treated the evidence as conflicting, and for this reason insufficient to establish the misconduct of the officer. By the testimony of all the jurors who spoke the officer is shown to have been guilty of directing the attention of the jury from the case under consideration by the noisy and repeated history of his own exploits in early life, talking so much, according to some of the jurors, that they ceased to note what he was saying, and did not remember what he had really said. We attach but little importance to his testimony. It appears by the testimony of all the jurors that during their deliberations the jury were so situated as that the officer might, in some of the conversations indisputably held by him, have discussed the case with some of the jurors without the others hearing what was said by him ; and since it is affirmatively shown by the testimony of some of them that this was done, we do not think it is overcome by the evidence of those who did not hear what was said, and whose evidence is at most of a negative character. Under these circumstances we are of opinion that the verdict ought not to be permitted to stand. Litigants are entitled to have their .controversies in the courts settled by that tribunal to which the law commits their decision, and that body was in this case a jury of twelve sworn men, and not a sworn jury and a bailiff. It is not shown exactly what was ’ said by the officer, but it does appear that he took part in the deliberations just as a member of the jury, and, according to the affidavit of one of the jurors, was the partisan of one of the parties. It is not suggested that the plaintiff was at all connected with the unlawful action of the officer, but in view of the facts that is immaterial, since his conduct of itself was sufficient to vitiate the verdict. The plaintiff, though free from fault, is not entitled to retain the advantage of an illegal verdict, nor is that a legal verdict in the finding of which thirteen men have participated.
Judgment reversed.