I concur in the opinion that a new trial should be granted; and, without recapitulating the evidence, would merely observe, that, in a civil suit, at this day, it is perfectly clear, that a separation of the jury, without, and even contrary to the direction of the Court, would not, of itself, warrant us in setting aside their verdict. The ancient strictness, in this respect, has been much relaxed, as will be seen by the uniform current of modern decisions. Yet, upon so grave a question as that of the life or death of a fellow citizen, I am not prepared to say that the separation of the jury, contrary to the instructions of the Court, and mingling with the throng about the court-house, should not affect their verdict. But I do not deem it necessary for me to express an opinion upon this point, because I think it abundantly proved that these two jurors not only separated from their fellows, and ate and took cakes with them on their return, but that they also drank whiskey. That Lamb also conversed on the subject of the matter in issue, is not fully negatived by Swartwout. He admits that he heard Lamb in conversation on the steps of the jail, he does not know on what subject; but another witness tells us that it related to the trial. This was while Swartwout was at a distance of 5 or 6 rods from Lamb, on the way to the court-house. It is true that the witness who speaks to that conversation, and renders details, has given a different history; but his affidavit is somewhat confirmed by the circumstances stated in Swartwout’s affidavit. I think I am warranted from the *39proof, in adding to the other misconduct of these jurors, that conversation was held by some bystander, at least with Lamb, upon the subject which he was engaged in trying. It has been properly observed, that there is very great difficulty in laying down a general rule which shall govern in these cases. But I am willing to say, that in no case, where it appears that any of the jury separate from their fellows contrary to the direction of the Court, make use of strong drink, and converse upon the matter which they are impannelled to try, would it be safe to sanction their verdict. The prisoner must be remanded to the county of Steuben, and a new trial had at the next Court of Oyer and Terminer in that county.
Rule accordingly.