The question to he decided, is, whether the testimony of a juror is admissible, to show, that another juror in the jury-room gave material information concerning facts not in evidence.
There is no harmony on this subject among the English cases ; but the most modern determinations have adjudged such testimony to be inadmissible. In Vaise v. Delaval, 1 Term Rep. 11. the offered evidence of a juror, to prove the deciding by lot, in the jury-room, was rejected ; and in the case of Owen & al. v. Warburton, 1 New Rep. 326. 329. it was determined, in conformity with the opinion of all the English judges, that the affidavit of a juror, stating a similar fact, could not be received. In delivering the opinion of the court, it was said, by Sir James Mansfield : “ it is singular indeed, that almost the only evidence of which the case admits, should be shut out ; but considering the arts, which might be used, if a contrary rule were to prevail, we think it necessary to exclude such evidence. *351If it were understood to be the law, that a juryman might set aside a verdict, by such evidence, it might sometimes happen, that a juryman, being a friend of one of the parties, and not being able to bring over his companions to his opinion, might propose a decision by lot, with a view, afterwards, to set aside the verdict, by his own affidavit, if the decision should be against him.”
In the State of Massachusetts, in Grinnell v. Philips, 1 Mass. Rep. 530. the point has been raised ; and, with little discussion, two judges against one, admitted the testimony of a juror to the misconduct of his associates.
The latest decision I have seen in the state of New-York, was in Dana v. Tucker, 4 Johns. Rep. 487.; and in this case the court determined, “ that the better opinion is, and such is the rule adopted by this court, that the affidavits of jurors are not to be received to impeach a verdict ; but they may be admitted in exculpation of the jurors, and in support of the verdict.”
In Lessee of Cluggage v. Swan 4 Binn. 150. Yeates, J., the only judge who expressed an opinion on the point, was decidedly of opinion, that such testimony was inadmissible.
The rule in Virginia is to the same effect. Cochran v. Street, 1 Wash. Rep. 79. 81. Price's exr. v. Warren, admr. of Fuqua, 1 Hen. & Mun. 385.
In this state, it has been the practice to admit such testimony ; but said Ch. J. Swift, (1 Dig. 775.) “In England, and in the courts of the United States, jurors are not permitted to be witnesses respecting the misconduct of the jury ; for it is a great misdemeanor ; and this is most unquestionably the correct principle ; for otherwise, a juror, who should be disposed to set aside a verdict, would give information to the party for that purpose ; if not so disposed, he could suppress the information ; and, in that way, any of the jury could command the verdict.”
The question before us regards a point of practice ; and as this cannot have any consequences antecedent to this case, it is competent for the court to decide, unshackled by precedent, and change the rule, if justice requires it. Robinson v. Bland, 1 Wm. Black. Rep. 264.
If the question depended merely on equitable grounds as relative to the immediate parties to the suit, the testimony in question, perhaps, ought to be received. But there are higher considerations to be resorted to. On a principle of policy, to give stability to the verdicts of jurors, and preserve the purity o*352f trials by jury, the evidence ought not to be admitted. The reasons assigned by Sir James Mansfield, in Owen v. Warburton, and by Ch. J. Swift, in his digest, are of great weight. The sanctioning of the testimony of one juror, relative to the misbehaviour of the rest, would open a door to the exercise of the most pernicious arts, and hold before the friends of one of the parties, the most dangerous temptation. By this capacity of penetrating into the secrets of the jury-room, an inquisition over the jury, inconsistent with sound policy, as to the manner of their conduct, and even as to the grounds and reasons of their opinions, might ultimately be established, to the injury and dishonour of this mode of trial ; imperfect, undoubtedly, but the best that can be devised. And under the guise of producing equity, there might be generated iniquity, in the conduct of jurors, more to be deplored, than the aberration from law, which, undoubtedly, sometimes takes place.
The opinion of almost the whole legal world is adverse to the reception of the testimony in question ; and, in my opinion, on invincible foundations.
Peters, Brainard and Bristol, Js. were of the same opinion.New trial not to be granted.