delivered the opinion of the court.
The only question in this case arises upon the decision of the court below, in overruling the motion of the appellant for a new trial.
That decision we deem correct, so far as the motion was based upon an objection to the verdict on the ground that it was “contrary to the instructions of the court, and against the weight of the testimony.”
But there was another ground of objection which was much more formidable, and which in our opinion should have been deemed substantial and available.
It appeared that after the jury had retired a witness, who had been examined on the trial, was sent for by them, admitted into their room, and re-examined, without the knowledge or consent of the court or the parties.
This fact was fully established by the witness himself, who also stated that he was a witness for the appellant on the trial, that when he went into the jury room the jury had been there an hour or two, and that they agreed upon a verdict shortly after he left the room.
The eourt below was of the opinion, that although it was improper for the j ury to send for and examine *295the witness out of court, still, as he was the witness of the defendant, and the one upon whose testimony he mainly relied to establish his defense, and had been fully examined on the trial, in reference to the same matters concerning which, as he states in his affidavit, hé testified in the jury room, that the defendant was not prejudiced by this misconduct of the witness and jury, and therefore it did not constitute a sufficient ground to sustain the defendant’s motion for a new trial.
2. The safe rule is, to regard the misconduct of the jury as asufficientgroundi for a new trial, where the party complaining of it has not connived at nor been instrumental in any manner in producing it.*295One of the grounds enumerated in the 369 section of the Code of Practice, upon which a new trial may be granted, is the misconduct of the jury or the prevailing party.
This misconduct should, no doubt, be of such a character as might affect materially the substantial rights of the party complaining of it.
The effect produced, by a re-examination of a witness in the jury room, it is impossible in any case to determine. The jurors in the re-examination of the witness may not confine themselves to legal questions, but matters may be inquired into by them which they may suppose to be proper and pertinent, and which may have weight and influence with them in making up their verdict, but which, in reality, are irrelevant and illegal. Any inquiry as to the extent of the prejudice which the party against whom the verdict is rendered may have sustained by such misconduct must be very unsatisfactory. The jurors themselves are not permitted to testify on the subject, it being against the policy of the law to allow them to prove misbehavior in themselves or their fellow jurors, as a ground for a new trial, and therefore the result of such an inquiry would, in most cases, have to depend upon the statement of the witness himself. He might have a very imperfect recollection of what occurred in the jury room, and' might wholly misapprehend the bearing and effect o’f the statements he made to the jury. The safest rule* therefore, to adopt in such cases, is to consider the mis*296conduct of the jury as a sufficient ground for a new trial, where the party complaining of it has not connived at, nor been instrumental in any manner in producing it.
Wherefore the judgment is reversed, and cause remanded for a new trial and further proceedings.