1, verdict and jury determination of verdict by lot. After the verdict was returned into court and the jury discharged, the defendant filed his motion for a new trial, on the ground of the miseonduct of the jury. He filed in support -of his . „ ,. . , motion the affidavits of five jurors, showing that the jurors having disagreed for a considerable time after their retirement, part being for plaintiff and part for defendant, agreed to determine their verdict by lot, and in advance of the drawing, agreed to be bound by the result. They did thus determine their verdict, and the lot fell upon plaintiff. The plaintiff also filed the affidavits of four jurors, showing,that the verdict was obtained by lot, but also showing that after the lot fell on plaintiff,- the jury took another vote as to their verdict and all voted for plaintiff, and this verdict, by vote, was the one returned. The affidavit of another juror, filed by defendant, shows that this vote was but a declaration of the willingness of the jurors to’ stand by the result of the lot.
3. — repndiation of illegal verdict, That it is-competent for a jury, having determined their verdict by lot or otherwise illegally, to retrace their steps, repudiate such illegal conduct and ver- ,. , , , diet, and find a valid one upon due and candid deliberation, we have no doubt. But having found -such illegal verdiet, the evidence of its repudiation and the subsequent proper finding of a sufficient verdict should be very clear and satisfactory. It is not so in this casé; . but on the contrary, the affidavits, when taken altogether and fairly construed, show a verdict by lot, and that the subsequent vote was but a ratification of the lot. The verdict should have been set aside.
