Manley v. Shaw, Car. & Mar. 361; State v. Powell, 7 N. J. L. *244; Anschicks v. State, 6 Tex. App. 524, 539. This did not necessarily prevent him from still acting as a juror (Howser v. Commonwealth, 51 Pa. St. 332, 336; Dunbar v. Parks, 2 Tyl. (Vt.) 217; 1 Wharton, Evidence, sec. 602), but it did preclude him from communicating simply as a juror, matters within his own knowledge.

The modern jury must arrive at its verdict from evidence regularly produced in the course of the trial proceedings. That evidence may be no different from such as might be acquired by the jurors unofficially, but still the latter could not be considered. Thus, the jury under the proper supervision may view the premises in controversy, and in this state such view may afford a proper basis for their verdict. Chicago, R. I. and P. R. v. Farwell, 60 Nebr. 322. But if one or more the jurors should visit unofficially the same locality during the progress of the trial and reach a conclusion as a result of such inspection, the verdict would be vitiated. Winslow v. Morrill, 68 Maine 362; Bowler v. Washington, 62 Maine 302; Eastwood v. People, 3 Parker Crim. Rep. (Ñ. Y.) 25; Flanderst v. Mullin, 73 Vt. 276; Consolidated Ice-Machine Co. v. Trenton Hygeian Ice Co., 57 Fed. 898. There would seem to be no difference in principle between a juror's using knowledge irregularly acquired during that trial and relying on that acquired prior thereto.

66

On the principle above stated, jurors are not allowed to make private experiments or investigations for the purpose of determining essential controverted points. People v. Conkling, 111 Cal. 616, 627; Wilson v. United States, 116 Fed. 484, 486. In short they are not permitted to consider any fact not brought before them in the regular way. Heffron v. Gallupe, 55 Maine 563, 568; Thompson v. Mallet, 2 Bay (S. Car.) 94, and if one of their number, at any time. before an agreement is reached, makes a statement to his fellowjurors based upon his prior knowledge and having a material bearing on the subject of their deliberations, the verdict is vitiated thereby. Sam v. State, I Swan. (Tenn.) 60; Ryan v. State, 97 Tenn. 206; Citizens' St. R. Co. v. Burke, 98 Tenn. 650, 652; Forsyth v. Central Mfg. Co., 103 Tenn. 497, 498; Anschicks v. State, 6 Tex. App. 524, 537. A juror is entitled, of course, to use his general knowledge and experience on a subject for the purpose of testing the credibility of the witnesses, as on a question of value. Rex v. Rosser, 7 Car. & P. 648; Patterson v. City of Boston, 20 Pick. (Mass.) 159. But if he have knowledge of any specific matter in controversy, it is his duty to so inform the court, and have it placed before his fellow-jurors, if at all, according to the established rules of trial evidence.

With a distinct and undisputed showing that this juror not only had the prior knowledge and based his own conclusions partly thereon, but that he used it to influence his fellow-jurors in arriving

66

Accord: Jim v. State, 4 Humph. (Tenn.) 289 (1843); Yates v. People, 38 Ill. 527 (1865); Higgins v. Los Angeles Gas & Electric Co., 159 Cal. 651, 115 Pac. 313 (1911).

at their verdict, we are unable to see how it can be permitted to stand.

Reversed and remanded.66a

FRY v. HORDY.

COURT OF KING'S BENCHI, 1677.

T. Jones 83

On a verdict for the plaintiff it was moved by Levins for the defendant to have a new trial, because upon an affidavit urged by him, made by the bailiff who attended the jury, the court was in

a Accord: Wright v. Crump, 7 Mod. 1 (1702); Bradley v. Bradley, 4 Dall. (Pa.) 112, 1 L. ed. 763 (1792); Gregory v. Baugh, 4 Rand. (Va.) 611 (1827); Ottawa Gas Light Co. v. Graham, 28 Ill. 73, 81 Am. Dec. 263 (1862); Head v. Hargrave, 105 U. S. 45, 26 L. ed. 1028 (1881); Douglass v. Trask, 77 Maine 35 (1885); Griffin v. Harriman, 74 Iowa 436, 38 N. W. 139 (1888); Atchison, &c., R. Co. v. Bayes, 42 Kans. 609, 22 Pac. 741 (1889); Forsyth v. Central M. Co., 103 Tenn. 497, 53 S. W. 731 (1899); Street R. & T. Co. v. Simmons, 107 Tenn. 392, 64 S. W. 705 (1901); De Gray v. N. Y. & N. J. T. Co., 68 N. J. L. 454, 53 Atl. 200 (1902). But, as laid down in Patterson v. Boston, 20 Pick. (Mass.) 159 (1838), jurors in arriving at a verdict may make use of the general knowledge and experience which they have in common with other men. Schmidt v. Insurance Co., 67 Mass. 529 (1854); State v. Railroad Co., 86 Maine 309 (1894); Lillibridge v. McCann, 117 Mich. 84, 75 N. W. 288 (1898); Purcell v. Tibbles, 101 Iowa 24, 69 N. W. 1120 (1897); McGarrahan v. N. Y., N. H. & H. R. Co., 171 Mass. 211, 50 N. E. 610 (1898); Karner v. Kansas City El. R. Co., 82 Kans. 842 (1910).

Where in the course of the trial the jury are permitted to view the premises involved, it has been held in some jurisdictions that the purpose of the view is to enable the jury to better understand and apply the testimony given in court, and that the jurors may not base their verdict upon the examination itself. Close v. Samm, 27 Iowa 503 (1869); Wright v. Carpenter, 49 Cal. 607 (1875); Pittsburgh, Ft. W. & C. R. Co. v. Swinney, 59 Ind. 100 (1877); Machader v. Williams, 54 Ohio St. 344, 43 N. E. 324 (1896); Hoffman v. Bloomsburg & S. R. Co., 143 Pa. St. 503, 22 Atl. 823 (1891); Dady v. Condit, 188 Ill. 234, 58 N. E. 900 (1900); Northwestern Mut. Life Ins. Co. v. Sun Ins. Co., 85 Minn. 65, 88 N. W. 272 (1901). The better rule, however, would seem to be that what is observed by the jury upon view is evidence, to be considered in connection with the verbal testimony in arriving at a verdict. Fitzgerald v. La Porte, 67 Ark. 263, 54 S. W. 342 (1899); Chicago, &c., R. Co. v. Parsons, 51 Kans. 408 (1893); Shano v. Fifth Avenue Bridge Co., 189 Pa. St. 245, 42 Atl. 128 (1899); Groundwater v. Washington, 92 Wis. 56, 65 N. W. 871 (1896); Chicago, R. I. & P. R. Co. v. Farwell, 60 Nebr. 322, 83 N. W. 71 (1900); Norcross v. Vose, 199 Mass. 81, 85 N. E. 468 (1908); Tacoma v. Hansen, 59 Wash. 594, 110 Pac. 426 (1910). In People v. Milner, 122 Cal. 171, 54 Pac. 833 (1898) it was said: "If it were material to determine whether a hole in the panel of a door was or was not caused by a bullet, it would be permissible to remove the panel, to bring it into the courtroom, offer and have it received in evidence, and submit it to the inspection of the jury. It would not for a moment be doubted, if this procedure were adopted, but that the physical object was evidence in the case. If, instead of so doing, the court should direct that the place where the material fact_occurred should be viewed by the jury, and the jury should be conducted to the spot, and the panel of the door pointed out to them, would it be any the less the reception of evidence because obtained in this way?" See also II Wigmore on Evidence, § 1168.

"Foy v. Harder, 3 Keb. 805; Foster v. Hawden, 2 Lev. 205. 29-CIV. PROC.

formed, that the jury being a long time in debate on their verdict, it was at length agreed amongst them that they would try the matter by the event of the falling of a sixpence, if pile for the plaintiff, if cross for the defendant; and the chance being for the plaintiff, they unanimously gave their verdict for him, and (as was said) against the direction of the judge who tried the cause: but that matter was not regarded, for no certificate of the judge was produced. But for the ill behavior of the jury, who put their consciences in the power of chance, a rule was given that the verdict should be quashed, and the jurors being of the county of Northumberland should attend the court the next term, unless cause this term shown."

68

WILLIAM S. PARHAM v. THOMAS HARNEY.

HIGH COURT OF ERRORS AND APPEALS OF MISSISSIPPI, 1846.

14 Miss. 55.

In error from the Circuit Court of Hinds county. Action by Thomas Harney against William S. Parham for assault and battery. On the trial there was a verdict for plaintiff for $3,602.50. A new trial was refused and the defendant appealed.69

CLAYTON, J.: The principal ground of error assigned in this cause is the misconduct of the jury upon the trial in the court below. Without consultation or deliberation about their verdict, they agreed, immediately upon entering their room, that each should put down a sum which should be divided by twelve, and that the result should give the amount of damages to be found by their verdict. This rule was adopted and acted on. The several amounts put down by the jurors ranged from thirty dollars to ten thousand dollars. This mode of making up a verdict has been repeatedly condemned by the courts of the country.70 It substitutes the fluctuating and uncertain hazards of a lottery for the deliberate conclusions of their reflections and interchange of views.

This misconduct was established by the testimony of three witnesses, who were not of the jury; deputy sheriffs who saw the proceeding, and the tickets upon which the figures were written, placed in a hat and drawn out to form the basis of their finding. Such a course can not meet with judicial sanction.

The judgment will be reversed and a new trial awarded."1

GS

Accord: Rex v. Fitzwalter, 3 Keb. 555 (1676); Rex v. Fitzwalter, 2 Lev. 139; Hale v. Cove, I Stra. 642 (1726); Philips v. Fowler, Comyns 525 (1736); Aylett v. Jewel, 2 W. Bl. 1299 (1779); Vaise v. Delaval, 1 D. & E. 11 (1785); Levy v. Brannan, 39 Cal. 485 (1870); Merseve v. Shine, 37 Iowa 253 (1873); Obear v. Gray, 68 Ga. 182 (1881); Wright v. Abbott, 160 Mass. 395, 36 N. E. 62 (1894).

The statement of facts is abridged.

Mitchell v. Ehle, 10 Wend. (N. Y.) 595 (1833); Elledge v. Todd, I Humph. (Tenn.) 43, 34 Am. Dec. 616 (1839); Roberts v. Failis, I Cow. (N. Y.) 238 (1823); Harvey v. Rickett, 15 Johns. (N. Y.) 87 (1818).

"Accord: Warner v. Robinson, 1 Root (Conn.) 194, I Am. Dec. 38 (1790); St. Martin v. Desnoyer, 1 Minn. 156, 61 Am. Dec. 494 (1854);

M'DONALD &C. GUARANTY CO. V. PLESS

451

MCDONALD AND UNITED STATES FIDELITY AND GUARANTY CO. v. PLESS.

SUPREME COURT OF THE UNITED STATES, 1915.

238 U. S. 264.

LAMAR, J.: Pless & Winbourne, attorneys at law, brought suit in the Superior Court of McDowell County, North Carolina, against McDonald to recover $4,000 alleged to be due them for legal services. The case was removed to the then Circuit Court of the United States for the Western District of North Carolina. There was a trial in which the jury returned a verdict for $2,916 in favor of Pless & Winbourne. The defendant McDonald moved to set aside the verdict on the ground that when the jury retired the foreman suggested that each juror should write down what he thought the plaintiffs were entitled to recover, that the aggregate of those amounts should be divided by twelve and that the quotient should be the verdict to be returned to the court. To this all assented.

The motion further averred that when the figures were read out it was found that one juror was in favor of giving plaintiffs nothing, eight named sums ranging from $500 to $4,000, and three put down $5,000. A part of the jury objected to using $5,000 as one of the factors inasmuch as the plaintiffs were only suing for $4,000. But the three insisted that they had as much right to name a sum above $4,000 as the others had to vote for an amount less than that set out in the declaration. The various amounts were then added up and divided by twelve. But by reason of including the three items of $5,000 the quotient was so much larger than has been expected that much dissatisfaction with the result was expressed by some of the jury. Others, however, insisted on standing by the bargain, and the Birchard v. Booth, 4 Wis. 67 (1856); Forbes v. Howard, 4 R. I. 364 (1856); Boynton v. Trumbull, 45 N. H. 408 (1864); Sharp v. Kansas City Cable R. Co., 114 Mo. 94, 20 S. W. 93 (1892); Dixon v. Pluns, 98 Cal. 384, 33 Pac. 268, 20 L. R. A. 698, 35 Am. St. 180 (1893); Long v. Collins, 12 S. Dak. 621, 82 N. W. 95 (1900); Ottawa v. Gilliland, 63 Kans. 165, 65 Pac. 252, 88 Am. St. 232 (1901); Birmingham R., &c., Co. v. Clemons, 142 Ala. 160, 37 So. 925 (1904); Williams v. Dean, 134 Iowa 216, 111 N. W. 931 (1907); International Agr. Corp. v. Abercrombie, 184 Ala. 244, 63 So. 549, 49 L. R. A. (N. S.) 415 (1913). Contra: Cowperthwaite v. Jones, 2 Dall. (Pa.) 55, I L. ed. 287 (1790); Cleland v. Carlisle, 186 Pa. St. 110, 40 Atl. 288 (1898), and see Bell v. Butler, 34 Wash. 131, 75 Pac. 130 (1904). The impropriety consists in the agreement in advance to be bound by the result. There is no impropriety in taking a ballot to arrive at an average, not to control the minds of the jury or forestall their ultimate conclusion, but merely as a basis from which to work in an effort to reach a verdict. Dorr v. Fenno, 29 Mass. 520 (1832); White v. White, 5 Rawle (Pa.) 61 (1835); Kennedy v. Kennedy, 18 N. J. L. 450 (1842); Dodge v. Carroll, 59 N. H. 237 (1879); Luft v. Lingane, 17 R. I. 420, 22 Atl. 942 (1891); McDonnell v. Pescadero, &c., Stage Co., 120 Cal. 476, 52 Pac. 725 (1898); Groves & S. R. R. Co. v. Herman, 206 Ill. 34, 69 N. E. 36 (1903); McElhone v. Wilkinson, 121 Iowa 429, 96 N. W. 868 (1903); Hagan v. Gibson Min. Co., 131 Mo. App. 386, 111 S. W. 608 (1908); Rambo v. Empire Dist. Eles. Co., 90 Kans. 390, 133 Pac. 553 (1913); Loy v. Northern Pac. R. Co., 77 Wash. 25, 137 Pac. 446 (1913); Pushcart v. New York Shipbuilding Co., 85 N. J. L. 525, 89 Atl. 980 (1914).

protesting jurors finally yielded to the argument that they were bound by the previous agreement, and the quotient verdict was rendered accordingly.

The defendant further alleged in his motion that the jurors refused to file an affidavit, but stated that they were willing to testify to the facts alleged, provided the court thought it proper that they should do so. At the hearing of the motion one of the jurors was sworn as a witness, but the court refused to allow him to testify on the ground that a juror was incompetent to impeach his own verdict. The ruling was affirmed by the Court of Appeals. 206 Fed. 263. The case was then brought here by writ of error.72

Though Rev. Stat., par. 914, does not make North Carolina decisions controlling in the federal court held in that state, we recognize the same public policy which has been declared by that court, by those in England and most of the American states. For while by statute in a few jurisdictions, and by decisions in others, the affidavit of a juror may be received to prove the misconduct of himself and his fellows, the weight of authority is that a juror can not impeach his own verdict. The rule is based upon controlling considerations of a public policy which in these cases chooses the lesser of two evils. When the affidavit of a juror, as to the misconduct of himself or the other members of the jury, is made the basis of a motion for a new trial the court must choose between redressing the injury of the private litigant and inflicting the public injury which would result if jurors were permitted to testify as to what had happened in the jury room.

These two conflicting considerations are illustrated in the present case. If the facts were as stated in the affidavit, the jury adopted an arbitrary and unjust method in arriving at their verdict, and the defendant ought to have had relief, if the facts could have been proved by witnesses who were competent to testify in a proceeding to set aside the verdict. But let it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation to the destruction of all frankness and freedom of discussion and conference.

The rule on the subject has varied. Prior to 1785 a juror's testimony in such cases was sometimes received though always with great caution. In that year Lord Mansfield, in Vaise v. Delaval, 1 T. R. II, refused to receive the affidavit of jurors to prove that their verdict had been made by lot. That ruling soon came to be almost

"A portion of the opinion holding that the federal court was not controlled by the North Carolina decisions is omitted.