i. jvby: misconduct. I. The plaintiffs moved for a new trial because of the alleged misconduct of the jury. Affidavits were introduced on the hearing, showing that afj;er a part Gf the evidence had been given, and the court had adjourned till the next morning, the defendant, not remembering that the person addressed was a juror, asked one of the jury “ what he thought of the case, or if it was not a singular case.” The juror informed him that he was a juror and the defendant said no more. "While we would unhesitatingly set aside a verdict for a party who would corruptly or purposely cvpproach a juror in his case, regardless of its effect, yet here the evidence fails to show any such purpose, but rather shows a mistake on the part of defendant, and that he promptly desisted upon learning his mistake. To visit a party with a severe penalty for an innocent and harmless mistake would be contrary to all rules of both law and equity.
g. — stateroom?m Jury It is also insisted, by appellant’s counsel, that there was misconduct by the jury, for that one of the jurors, while considering their verdict, stated to his fellow jurors that he knew a certain witness who testified for the defendant, and that he was a responsible man and worthy of credit. Three of the jurors make affidavit to this statement; but the juror himself and seven others make affidavit that the statement was, in fact, not made until after they had agreed upon their verdict. The weight of testimony is, therefore (even if the affidavits are admissible for this purpose), that it had no influence upon the verdict, it being made after it was found, and, of course, no prejudice came therefrom.
3. new trial: impeachment, II. Another ground for a new trial, as claimed by appellants is, that they were surprised by the introduction of a new witness by defendant who had not before been sworn, and whom they had since ascertained to be of bad character for truth, and unworthy of credit. He testified to the controverted payment of *36$50. The answers to tbis ground are numerous: tbe witness was subpoenaed and attended court at a former term, when tbe cause was continued; tbe plaintiff knew before tbe trial that be was there attending as a witness for defendant; bis testimony was only corroborative of tbe defendant’s own and of one or two other witnesses for him; tbe only thing plaintiff proposes to do in respect to him, if a new trial is granted, is to impeach him. It is very well settled that a new trial will not be granted for tbis purpose, and besides, due diligence would have discovered tbe fact, if it be so, before tbe trial. After so many trials, and two concurring verdicts, we do not tbink.it was error to refuse a new trial.
Affirmed.
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