The opinion of the court was delivered by
BEnNETT, J.This is an action of general assumpsit for moneys paid to the use of the defendant.
It appears that one Cobb was employed, as an attorney, to defend a suit which had been brought against the parties to this action by their tenant, in which there was a joint liability, and originally a joint interest. In process of time, Mr. Cobb commenced his action against these parties to collect his fees in that suit, and Cobb’s suit was continued in a course of litigation until his debt and cost exceeded one hundred dollars, and the whole judgment was paid by Downer. Prima facie, the plaintiff should recover a moiety of the sum paid, of this defendant.
But the defendant gave evidence tending to prove that he paid to Downer one-half of the tenant’s claim against them both, before the tenant had commenced any suit against them, and Downer thereupon agreed with the defendant to see the tenant soon, and settle his account, and that after the tenant commenced his suit, *472Downer alone employed Cobb to defend the suit, and that the defendant only attended the trial as a witness for, and at the request of Downer. Under the charge of the court, it is to be taken by the verdict of the jury, that they have found these facts, and if so, what must be their effect ? Can Downer, after this, claim contribution? After Baxter had paid into the hands of Downer a moiety of the tenant’s claim, under an agreement that he would see it settled, Baxter, in effect, stood simply as surety for Downer, as between themselves, and in violation of his agreement, Downer neglected to pay the tenant, suffered a suit to be commenced, and employed counsel to defend it. It is difficult to see how Downer can have a claim for contribution out of such a state of facts, for any part of the moneys paid by him. But it is said that Downer ought, at least, to recover of Baxter the costs that accrued in the suit, which Cobb commenced against them subsequent to the appeal. This claim is grounded upon the fact that, at the justice trial, Downer was willing to pay a moiety of Cobb’s claim, and suffered a default; and that Baxter appeared and defended the suit before the justice on the aforesaid facts, took an appeal and defended the suit on the same ground in the subsequent stages of its progress. We think he was fully justified in defending the suit, and upon the facts found by the jury, it would seem that if they had been made known to Cobb at the time he was employed by Downer to defend the tenant’s suit, they would have constituted an ample defence. It can hardly be conceived that if Downer had told Cobb that Baxter had no interest in the suit, and that he was bound to see the claim settled, there could have been any recovery against Baxter, upon the ground that Downer and Baxter were, co-defendants in the suit which Downer employed Cobb to defend. Downer was the man in the wrong, and if he took it upon himself to defend the suit of the tenant, he did it at his own peril, and was bound to indemnify Baxter from all damage and costs, and it was his duty when he employed Cobb, to have informed him as to the relation in which he and Baxter stood in the matter, and Baxter had a right to suppose he bad done it.
In Fletcher v. Jackson, 23 Vt. 593, the right of a co-surety to recover costs and expenses, is made to de pendaltogether on the question, whether the defence -was made under such circumstances *473as to render it hopeful. If so, contribution may be had even between co-sureties, and the case is stronger between principal and surety.
In Hulett v. Soullard, 26 Vt. 293, the rule was recognized that a surety may recover costs which have been incurred in good faith. See 5 Rawle 106; 17 Mass. 169.
In Beckley v. Munson, 22 Conn. 300, the surety was indemnified, and defended the suit against the will of the principal, and after he was informed by the principal that there was no defence. He could not, after this, have claimed very well that the defence was made in good faith.
There is some conflict in the cases, but we must consider the rule settled in our own courts.
TVe think then, there was no error in the direction given by the county court to the jury.
The next point we are to consider, is the decision of the county court overruling the motion for a new trial.
The ground of the motion is that the jurors, after they had received the charge of the court, and had retired for consultation, and before they had agreed upon their verdict, separated some little time to go to their dinners, without an order of the court, and without being under the charge of an officer, and the question now before us is, does this constitute such an irregularity in the proceedings as will per se and as matter of law, render the verdict of the jury a nullity, so that no valid judgment can be rendered thereon?
It is true the statute declares, that when the court have committed a cause to the consideration of a jury, “ such jury shall be confined under the care of an officer appointed by the court, and sworn for that purpose, until they are agreed upon a verdict or are discharged from giving a verdict by order of the court;" Comp. Stat. 222 § 23.
But suppose the officer does not do his duty in this respect, and suffers the jury, or some one of them, to separate before they are agreed. The statute does not declare what the effect of such an irregularity shall be on the verdict.
The statute requires, that to the presentments made by a town grand juror, there shall be subjoined a memorandum of the names of the witnesses in support of the prosecution, yet it does not declare what the effect of an omission shall be.
*474This statute has always been held to be directory, and that an omission to annex the names of the witnesses to the complaint, was no cause for quashing the proceedings. So the statute in relation to keeping together a petit jury is purely directory ; anti though it may be, and is, a misbehavior in a jury towards the court, for them to separate before they are agreed, unless from necessity, and they ordinarily ought to be punished therefor as for a contempt, yet to set aside a verdict for such a cause, as matter of law, and in a case where the separation was not prejudicial to the ends of justice, would be to punish the parties, and not the jury. An application of this kind is addressed to the discretion of the court who tried the cause, and if the conduct of the jurors is such as to furnish a fair ground to presume that they may have been tampered with, and to impugn their motives, the court would, no doubt, set the verdict aside. But if the case was one in which the court could see that the verdict was clearly right from the' testimony, they would, no doubt, be less liable to listen to an application to set the verdict aside for the misbehavior of the jurors, and while we fully admit that a separation of the jury, if attended with reasonable suspicions of abuse, will be a ground for a new trial, yet this inquiry necessarily involves matters of fact, and the question whether the ends of justice and the purity of jury trials require a new trial to be granted in a particular case, must rest in the sound discretion of the court which tried the cause. This court does not revise the decisions of the county court resting in discretion, but, upon exceptions, sits as a court of error.
In the case of the State v. Babcock, 1 Conn. 401, the trial was a capital one, and a new trial was granted because one of the jurors was not a freeholder j but in the same case, the court refused to grant a new trial on the ground that the jury separated before they had agreed upon a verdict. There is one instance in this state, Briggs v. Georgia, 15 Vt. 61, where the supreme court, upon exceptions, granted a new trial, for the reason that one of the jurors was not a freeholder, but, if I understand that case, it goes upon the ground that it was a mis-trial, as much so as if but eleven jurors had been called. But that case is quite distinguishable from, the present.
There is no ground in the case before us, to impute to the jury *475any intentional wrong. The officer who had the charge of them had got the impression that the court had permitted them to separate to go to dinner, and so informed the jury, and the affidavit of the twelve jurors precludes all suspicion of their being tampered with during their separation. They state that no one spoke to them about the cause, neither did they hear any conversation between other persons in relation to it. As matter of discretion, we think, if we could revise it, it was properly exercised by the county court.
An objection was taken to the competency of the affidavits of the jurors, and their admissibility raises a legal question, which we are called upon to decide. We think the true rule is, that the affidavits of jurors may be read to exculpate themselves and sustain their verdict, but not to impeach it. In this case they were offered to show that the jurors had no conversation with others, nor heard any in relation to the cause.
To this extent they were clearly admissible, we think; State v. Hascall, 6 N. H. 361. If, upon the hearing of a motion of this kind, the county court admit illegal, or reject legal evidence, and exceptions are taken, the error should be corrected, and the case sent back to the county court to be proceeded with and disposed of as to the merits of the motion, in their sound discretion.
The judgment of the county court is affirmed.