Clark v. Carter , 12 Ga. 500 ( 1853 )

By the Court.

Warner, J.

delivering the opinion.

[1.] The first ground taken for a new trial, which we shall notice, is that which relates to the misapprehension of the evidence by one of the Jurymen on tjhe trial of the cause.

Isaac L. Streetman, one of the special Jurors who tried the cause, made an affidavit, in which he states, “that he returned his verdict in the case for the plaintiff, under the supposition that there had been a settlement between the parties of the accounts in defendant’s plea, from the fact that the note sued on was of a younger date than the accounts in said plea, and for a smaller amount than the original notes given by Beall and Garter, to Gresham, and if he had not so understood the case, he would not have returned his verdict for the plaintiff,”

The affidavits of Jurors cannot be received to show their impressions as to the effect of their finding, or that they intended something different from what they found by their verdict. The People vs. Columbia, 1 Wendell’s Rep. 297. The affidavit of a Juryman cannot be received to impeach his verdict. Voize vs. Delaval, 1 Term Rep. 11. The admission of such affidavits by Jurymen, after they have rendered their verdict, for the purpose of setting the same aside and obtaining a new trial, would, in our judgment, be,productive of an intolerable practical mischief.

[2.] The next ground taken for a new trial is, that the admissions of the plaintiff at the trial, were not as full as he agreed with the defendant he would make them, and therefore he was surprised. The admissions made by the plaintiff are stated in the record, and so far as the record discloses, there was no objection made at that time, that the admission of the plaintiff was not as full as he promised the defendant to make it. The defendant is too late in manifesting his surprise, after acquiescing in the sufficiency of the admission at the trial. Xi it was not so full as the plaintiff had promised, why did not the defendant express his surprise at that time, and ask the Court for a continuance of the cause on that ground ?

[3.] The motion for new trial, however, must prevail, on the ground of newly-discovered evidence. To lay the foundation for a new trial on this ground, the affidavit of Burrell K. Harrison has been filed, in which he states, “that he had frequent conversations with Beall & Gresham, about the rent of the tavern, and I understood from the parties that Beall should take the tavern and furniture at five hundred dollars per annum, and that the furniture, lot, house, stables, &c., should be kept up by Beall, and the amount so expended to be deducted from the rents, and the previous furniture, &c. to be returned as found, except the actual wear and tear; after Beall had taken the tavern some time, I heard a conversation in relation to the crockery-ware, &c.; some words passed ; Gresham seemed to think that there was too much carelessness among, the servants. Beall inquired of Gresham where he should get the articles, and to whom they should be charged; Gresham told him he did not care where, or to whom they were charged, but to get them and make the servants more careful.” In support of the application, Carter, the defendant, has also filed his affidavit, in which he states, “ that at the time of the trial of the cause he was not aware of Harrison’s testimony, and that it has come to his knowledge since the trial of the cause ; that, he wras diligent in searching up testimony for the trial thereof, and that if he had known of said testimony, at the time of the trial, he would have had Harrison sworn as a witness in the cause.” The application for the new trial in this case, is within the rule prescribed by this Court, in Berry vs. The State of Georgia, 10 Georgia Rep. 512.

Let the judgment of the Court below granting the new trial, on the ground of newly discovered evidence, be affirmed.