delivered the opinion of the court.
The question in this case is presented upon the correctness of the opinion of the court below in disallowing a new trial upon the affidavit of a juror stating in substance, that the jury, for the purpose of ascertaining what should be the amount of damages assessed, agreed among themselves that each member of their body should set down a sum, according with his own judgment, and that the aggregate amount should be divided by twelve and the result returned as their verdict, which was done.
This affidavit was admissible, its truth is not contradicted, and we think that it furnishes a legal ground upon which a new trial should have been granted.
In the case of John Baker vs. Thomas Bennett, determined by this court at Knoxville, in July, 1839, it.is held “that a jury shall not agree among themselves that each shall specify the amount for which he is willing to find a verdict, divide the whole by twelve, and return the sum thus produced as the amount of their deliberations, because it is in the nature of gambling for a verdict, and places it in the power of one juror to make the amount unreasonably great or small.’’ This case is in point, although in it the new trial was refused, because it was thought that no such agreement had been made by the jury.
Reverse the cause, and let it be remanded for a new trial.