The goods in question were formerly the property of Nathaniel Stevens, from whom the plaintiffs and defendants respectively derive their titles ; the former by a bill of sale, the latter as attaching creditors.
The defendants claimed, that the bill of sale, so far as it related to the interest conveyed to Lawrence, one of the plaintiffs, was fraudulent and void as against the defendants. One question was, what effect that circumstance, if proved, would have upon the case. The court instructed the jury, that if such were the case, the plaintiffs could not recover, although they had no participation in the fraud, or knowledge of it; and that unless all the plaintiffs were entitled to recover, their verdict must be for the defendants.
This instruction was clearly right. It is perfectly obvious, that if the conveyance to Lawrence was fraudulent and void, he could sustain no action alone against the defendants for taking the goods. He would stand as if no conveyance had ever been made. Nor can he place himself in a better situation, by uniting with others, who may have a valid title. For it is incumbent upon them to prove the property in all, not a part only, of the plaintiffs. And it makes no difference in what manner the title of one fails, whether in consequence of no conveyance from the owner, or of a conveyance void *450by reason of fraud. If all the plaintiffs have not an interest in the goods, they fail to establish a material allegation in their declaration that they were possessed of them as their own property.
It is not necessary to inquire what interest the other plain-liffs acquired under the bill of sale, if the title of Lawrence was invalid ; nor what would be the appropriate remedy for an injury done to that interest. The question now is, merely, whether the present plaintiffs can recover, if the title of one of them fails ; and we are satisfied that they cannot.
2. The next inquiry is, whether the testimony offered by the plaintiffs and excluded by the court, was properly rejected.
The late Chief Justice Swift, in delivering the opinion of the court, in the case of Barrett & al. v. French & ah, says, “ it has uniformly been decided, that the declarations of the grantor, when the grantee is not present, prior or subsequent to the execution of the deed, cannot be admitted as evidence to invalidate the deed.” 1 Conn. Rep. 365. The same principle, in our opinion, is applicable, when the declarations are offered in support of the conveyance.
Nor can the conversation, in this case, be considered as a part of the res gestee, as claimed by the plaintiffs, so as to exempt the case from the operation of that rule. For the court excluded only that part of the conversation between Stevens and the witness, which took place previous to their meeting with Lawrence, and which was not uttered in his presence.
3. The remaining inquiry is, whether the misconduct of the juror was such as to make it the duty of the court to set aside the verdict.
It is now well established, by the modem authorities, that every instance of misconduct in a juror will not destroy the verdict.
The rule extracted from the cases seems to be, that however improper such conduct may have been, yet if it does not appear that it was occasioned by the prevailing party, or any one in his behalf; if it do not indicate any improper bias upon the juror’s mind, and the court cannot see, that it either had, or might have had, an effect unfavourable to the party the verdict ought not to be set aside. moving for a new trial: *451The State v. Watkins, 9 Conn. Rep. 47. The Commonwealth v. Roby, 12 Pick. 519. Everett v. Youells, 4 B. & Adol. 681. Hill v. Yates, 12 East, 228. The People v. Ransom, 7 Wend. 417. Burne v. Phillips, 1 Gallis. 360. Crane v. Sayre, 1 Halst. 110. Smith v. Thompson, 1 Cowen 221.
A contrary rule would, in many cases, operate most unjustly. It would punish an innocent person for the offence of another. If a juror conducts improperly, and violates his duty and his oath, he ought to be answerable for it, and not a party in the cause, who was in no manner accessory to the misconduct.
To deprive a party of a verdict, which he may have honestly obtained, after a protracted and expensive litigation, merely because a juror may have improperly spoken of the cause, when he could have received no benefit from that act of the juror, and his opponent no injury, would seem hardly compatible with a due administration of justice.
If, indeed, he, or any agent of his, will approach a juror, while the cause is on trial, and speak of the subject matter of the suit, it will destroy a verdict in his favour. He ought to know and feel that he may lose, but cannot gain, by such conduct. Depriving him of his verdict will operate as a punishment for his violation of the law. Bennett v. Howard, 3 Day 223. Lessee of Cluggage v. Swan, 4 Binn. 150. 2 Holds P. C. 308.
So, too, if it appear that the unsuccessful party either did, or might, have sustained injury from the juror’s misconduct, it is reasonable that a new trial should be granted, that justice may be done between the parties.
It is, undoubtedly, the duty of courts, as far as practicable, to preserve the purity of trials by jury ; and it is said, that this can best be effected, by setting aside every verdict, where a juror has spoken of the cause contrary to his oath. But it is difficult to see how such a result would be produced. The juror does not suffer, by setting aside the verdict: it is the successful party alone, that is injured. It is true, in some cases, that rule seems to have been adopted; but in our opinion, it is neither in conformity wfith a just administration of justice, nor with the more recent cases.
In this case, the court has found, that the juror, while the cause was on trial, said to one of the plaintiffs’ witnesses, that *452the trial had been lengthy, and the cause protracted ; that a witness seldom had so rigid a cross-examination as Smith Stevens, another witness of the plaintiffs, and that he bore it well.
What was said respecting the length of the trial can be of very little importance. The expressions relative to Stevens, would seem to indicate a feeling in favour of the plaintiffs, rather than against them.
The person to whom the conversation was addressed, does not appear, in any manner, to have acted in behalf of the defendants, or to have attempted to influence the mind of the juror in their favour. And although the conversation of the juror was improper — in violation of his oath — and calling for the animadversion of the court; yet we cannot say, that it was such as to require that the verdict should be set aside.
But there is another objection to the motion. It does not appear but that the misconduct of the juror was known to the plaintiffs, before the trial closed. If it was, they were bound to make the objection at the time, and not wait till after a verdict against them. Their omission to state that allegation in their motion, renders it insufficient. This principle has been settled, by this court, in the case of Selleck v. The Sugar Hollow Turnpike Company, post. — [next case.]
Our opinion, therefore, is, that no new trial should be granted.
In this opinion the other Judges concurred, except Storks, J., who was not present.New trial not to be granted.
Motion in arrest overruled.