21 Wis. 26 | Wis. | 1866
It is maintained by the appellant, that the circuit court erred in not arresting the judgment and granting a new trial for improper conduct of one of the jurors. The affidavit of Colby is the only evidence of such conduct. He states that “ while the trial was in progress, during the recess of the court, be beard one of the jurymen, talking about this case to another person, declare that be thought the girls who
The conduct of the juror was in violation of his duty; but it does not follow that the prevailing party should be punished for it. If the conversation with the juror had been held by the plaintiff or her agent, or at her instance, we should reverse the judgment. But it is not shown that she had anything to do with it. The ancient strict rule has been -relaxed. The weight of authority now is to the effect, that in civil cases, if such improper conduct does not appear to have been occasioned by the prevailing party or any one in his behalf, and the court cannot see that it had or might have an effect unfavorable to the party moving for a new trial, the verdict ought not to be set aside. ¡Some courts also hold that it must appear that the misconduct was not known to the party moving for a new trial before the close of the trial, or the motion would be denied. See Woodruff v. Richardson, 20 Conn., 240; McIlvaine v. Wilkins, 12 N. H., 474; Barlow v. The State, 2 Blackf., 114; Smith v. Thomson, 1 Cow., 221 and note; Pettibone v. Phelps, 13 Conn., 445, and authorities there cited. We think the circuit court rightly overruled the motion for a new trial.
By the Court. — Judgment of the court below affirmed.