Howard v. Cobb , 12 F. Cas. 636 ( 1809 )

By the Court.

If Cobb should be compelled to pay this note, he could compel Stanley to indemnify him,^(a) as it would be a debt accruing after the bankruptcy of Stanley. His declarations, therefore, may be proved.

The plaintiff obtained a verdict.

If the jury se~ snitted to them, and be-idi-e they have verdict, "and tuniaverdicT it will be aside. Rut. neither thejurors.nor the officer to •whose care they were committed, can be com-polled to testify to the fact of such separation.

The defendant moved in arrest of judgment. The principal ground was, that, the jury had separated, and mingled with the inhabitants of JVew-Haven} before they bad agreed upon a verdict. ‘

1 he idct was not conceded, though the counsel for the plaintiff stated, that this had been the general prac-l*ce *" CoT,m'cticut¡ that juries had always separated, they pleased.

Goddard, for the defendant, called upon one of the . * jury as a witness to establish the fact of such separa» . tlOB.. ⅛ r

The Court informed the juror, that he should not . , , , . be compelled to answer, as it was a misdemeanor m him; but that he might answer, if he pleased.

The juror declined answering.

The deputy-marshal, to whose care the jury had oeen committed, was then called.

The Court said, that he could not be compelled t® answer, unless he pleased*

He declined.

The counsel for the defendant then proposed to wait until the rest of the jury should come in, observing that perhaps some of them would be willing to testify.

The Court said they would not wait a moment in such a case as this.

The counsel for the defendant then offered to prove the declarations of the jury, as evidence of the fact in controversy.

The Court said, they would not hear such declarations. They expressed, however,: a clear opinion, that judgment must have been arrested, if it had been proved, that the jury separated before they had agreed upon a verdict. The statute of this stale^(a) they considered so explicit and imperative, that it could not be evaded, let the practice be ever so universal against it.

In the next case, the court appointed an officer to take care of the jury, and charged him not to suffer them to separate, until they had agreed in a verdict, nor to speak to them, except to ask them if they were agreed.

(a) It had been stated by the counsel on one side, and assented to.*n the other, that Cobb signed the note only as syret?/ .for Stnvlep,

(a) Tit. 6. c. l. 8.11.