delivered the opinion of the Court as follows. It appears by the defendant’s motion and the affidavits o.f the jury, taken de bene esse in support of it, that they intended to return their verdict in favour of the tenant; although as writ? ten and signed by the foreman and affirmed by the Court, it is a plain and unequivocal verdict in favour of the demandants :— or, in other words, that they used language which did not convey thejr meaning. — This was not discovered till after the jury had separated and had an opportunity of conversing tyith the parties ; by means of which the mistake was ascertained.
The questions are, whether the Court can permit the verdict so to be amended or altered as that it may stand a verdict in favour of the tenant; and, if not, — then what is the proper course to be pursued ?
The decision of these questions depending on precedents, we have examined the authorities relating to the subject and will now state the result.
There are two classes of cases to be found in the books respecting erroneous or defective verdicts.
The first class contains those cases in which the incorrectness or defectiveness of the verdict or error in the record of the judgment consists in something merely formal and which has no connection with the merits of the cause ; where the amendment, when made, in no respect impairs or changes the rights of the parlies ; but may only prevent the disturbance of the proceedings. by writ of error; or, by correcting clerical mistakes,, render the record consistent and the verdict pursuant to the issue. — Of this description are the following cases : 1 Salk. 47, 53. Cro. Car. 144, 338. Cro. Eliz. 677. Cro. Jac. 239. Cro. Eliz. 112. Lord Raym. 335. 2 Sir. 1197. 4 Co. 52. 3 Bulstr. 181. Hett. 52, and numerous others which it is un?, pecessary to cite.
*39The second class contains those cases where the error has been committed by the jury; either by returning a verdict against the wrong party ; or, if not so — for a larger or smaller sum than they intended : and those Where, if the amendment or alteration should be made and the damage should be increased or idiminished, or the verdict reversed, the rights of the parties would be immediately affected and changed : and this,- too, after thé jury had, by their separation, become accessible to the parties and subject to their influence. — Of this class are the following cases, viz.—
“ A motion for a new trial upon affidavits of eleven of the “jury that they had agreed on a verdict for the plaintiff and “ five shillings damage : but the foreman, by mistake, gave a “ verdict for the defendant. A new trial was granted.” 21 Vin. Abr. 483.
In Woodfall’s case, 5 Burr. 2667, a doubt arose as to the meaning of the jury in the verdict they had given. Lord Mansfield says, “ It is impossible to say with certainty what “ the jury really did mean: — probably they had different “ meanings. If they could possibly mean that, which, if ex-> “pressed, would acquit the defendant, he ought not to be con- “ eluded by this verdict. If a doubt arises from an ambiguous “ and unusual word in the verdict, the Court ought to lean in “ favour of a venire de novo” — and it was awarded accordingly. In that case the doubt rose on the face of the verdict; no affidavit having been given.
In Spencer v. Goter, 1 H. Bl. 78, the Court decided that they could not alter a verdict, unless it clearly appeared on the face of it, that the alteration would be agreeable to the intention of the jury- arid that the proper remedy in that case Was a new trial.
In the case of Rex v. Simmons, 1 Wils. 329, a new trial was granted ; the jury having stated on affidavit that they did not mean to give such a verdict as was in fact recorded by the Court — Simmons was charged with putting into the pocket of one Ashley three ducats with a malicious intent to charge him with felony. — The jury did not intend to find the defendant guilty of the criminal intent — hot only of the fact of putting the' ducats in Ashley’s pocket. But, as the Judge reported, by *40some mistake or misapprehension of the Court or the jury or both, a general verdict of guilty was entered — Lee, C. J. observed that the verdict was taken by mistake; and therefore that it was not granting a new trial upon any after-thought of the ¿ury-.
“ The Court will not set aside a verdict upon the affidavit of a juryman that it was decided by lot.” 1 New Reports, 329.
“ But the affidavits of jurors will be admitted to shew that a “ mistake had been made in taking their verdict and that it was “ entered differently from what they intended.” — The Court observed, “What the jurors have deposed must be noticed by “ the Court, because their affidavits are not to what transpired “ while deliberating on thei'r verdict, but as to what took place “ in open Court in returning their verdict.” 15 Johns. 309.
“The Court will, under circumstances, grant new trials on “ the affidavit of jurors that their verdict was taken contrary “ to their meaning ; but they are very cautious how they do this, “ as it may be of dangerous tendency.” 1 Sellon’s Practice, 488.
We have examined the case in 1 Burr. 385, which i£ relied upon by the counsel for the tenant. — It does not appear-to have ever received any final determination, so as to assume the authority of a decided case; and it appears also that the cases cited by Burrow in support of it, are either irrelevant or else are those falling within the first class above-named. We therefore cannot consider it as shaking the authority of those we have stated as composing the second class.' —In all those cases, the Court, instead of attempting to correct and amend the verdict and make it conformable to the intentions of the jury, as explained by them after it was affirmed, granted relief and corrected the mistake by setting aside the verdict and granting a rterb trial. — It is to be regretted that such a mistake should have’ been made in the present cause and that its consequences should be so serious’ and embarrassing to the parties. But the law is such’ that we cannot do any thing more for the tenant than set aside the verdict and grant a new trial? and, in the circumstances before us, we ought not to do less.
Verdict set aside and new trial granted¿
*41Note. Respecting- the admissibility of the affidavits of jurors to prove misbehaviour in the jury themselves the cases are contradictory.
The course formerly was to admit them. Metcalf v. Deane, Cro. El. 189. adjudged in 32 Elis, recognized as good law in Vicarey v. Farthing, Cro. El. 411. Moor, 452. S.C. 38 Eliz. Heylor v. Hall, Palm. 325. 2 Rol. Rep. 61. S. C. 20 Jac. 1. Mellish v. Arnold, Bunb. 51. 1719. Par v. Seames & al. 1 Barnes, 320. 4to. ed. 8 Geo. 2. Phillips v. Fowler, 2 Com. Rep. 525. Prac. Reg. 409. Barnes, 441. S. C. 9 Geo. 2. Said per Willes C.J. to be the settled rulo in C. B. Norman v. Beaumont, Willes, 487. 18 Geo. 2. So in Aylett v. Jewell, 2 Bl. Rep. 1299. 19 Geo. 3. In these cases the propriety of admitting- such testimony does not seem to have been much questioned.
During this period there are only two decisions known to the contrary. Prior v. Powers, 1 Keb. 811. 16 Car. 2. and Palmer v. Croule, Ander. 382. 12 Geo. 2.
The old practice was first broken in upon by Ld. Mansfield in Vaise v. Delaval, 1 D. & E. 11. A. D. 1785. and it is now settled in England that the testimony of jurors to the misbehaviour of the jury in the finding- of their verdict is not to be received. Jackson v. Williamson, 2 D. & E. 281. Owen v. Warburton & al. 4 B.& P. 326. Rex v. Wooler, 2 Starkie, 111. And the usage in the American Courts accords with the later English decisions. Cochran v. Street, 1 Wash. 81. Price v. Warren, 1 Hen. & Munf. 385. Dana v. Tucker, 4 Johns. 487. Bridge v. Eggleston, 14 Mass. 248. Cluggage v. Swan, 4 Bin. 155. per Yeates J. The earlier American cases of Grinnell v. Phillips, 1 Mass. 541. and Smith v. Cheetham, 3 Caines, 57. so far as they relate to this point seem to be overruled by subsequent decisions.
In Connecticut, the jurors, and the deputy marshal who had charge of them, being called to testify that they separated before agreeing on a verdict, were told by the Court, Livingston and Edwards J. Circuit Court U. S. that they could not he compelled to answer, as it was a misdemeanor; hut they might answer if they pleased. Howard v. Cobb, 3 Day, 310.
In some of each class of these cases the misbehaviour complained of was in the jurors setting- down each man a sum, and dividing the aggregate by twelve. If this he taken as the rule to fix the damages absolutely, it is a misdemeanor, and the verdict will be set aside. Smith v. Cheetham, 3 Caines, 57. But if it be only adopted as the mode to ascertain a reasonable mean, or measure of damages, without binding themselves at all events to abide Ihe result, the verdict is good. Dana v. Tucker, 4 Johns. 487.