Curia, per
Sutherland, J.The decision of the court of common pleas cannot be sustained. It is certainly well settled, that the affidavits of jurors cannot be received to shew a mistake in making up their verdict; and we never intended to detract from that rule in Sargeant v. -, (5 Cowen, 106.) In that case, the counsel advanced an erroneous rule of damages to the jury, which was not corrected in the charge of the judge. The jury were in this way led to adopt the rule. We considered these circumstances equivalent to a positive misdirection of the judge; and allowed the affidavits of jurors to be read, shewing that they were, in fact, misled. It was impossible to make out what, in truth, operated as a misdirection of the judge, in any other way. Misdirection is a very usual ground for granting a new trial; and the case cited establishes merely, that a set of circumstances may amount to the same thing; and may be shown by the affidavits of jurors. Farther we did not mean to go; and we expressly disclaimed the idea of trenching on any of the cases which had refused to hear the affidavits of jurors. The motion must be granted.
Rule for an alternative mandamus,