JAMES B. HUTCHINSON vs. JOHN GORDON, 2 Harr. 179

Per curiam: J. M. Clayton, Chief Justice. The first question is, whether the house was sold as the property of Lamborne or of Hutchinson, which is a question of fact for the jury. If sold as the property of Hutchinson, then the jury will have to consider whether it was in fact his, and this depends on the legality of the assignment from Lamborne to him. We can give no opinion on this deed of assignment, because they have refused to give it in evidence.

The jury must, therefore, determine from the parol evidence, being such as the parties have chosen to lay before them, whether this assignment did give an illegal preference; if so, the deed is void, whether executed here or in Philadelphia, as to its operation on property here. Our law considers it fraudulent and makes it penal to prefer creditors in any such assignment. If the jury have no satisfactory evidence that this assignment did give a preference, it is good to convey the property.

Though not accompanied by the possession it is good against Lam-borne, and against this defendant; for Lamborne could not deny it. The plaintiff had a verdict, and there was a motion for a new trial, the defendant offering to prove by the bailiff that the jury, being equally divided, agreed to send for the deed of assignment from Lamborne to Hutchinson; and, in case it was not sent to them, to give a verdict against the party who objected to their having it. The Court, referring to the case of Pierce vs. Patterson, in the late Superior Court, ( ,) permitted the bailiff to be sworn.

Gilpin, for plaintiff, ' Wales, for defendant He did not prove what was expected, and the new trial was refused. (

a) Abraham Pierce ns. Robert Pattbrsori; Motion for a new trial without costs, on the ground that the jury had drawn lots for their verdict. The bailiff to the jury was produced to prove that the case was decided by lot. Hall, for plaintiff, objected that the bailiff was not competent. He is bound by his oath to keep the jury together until they agree in a proper manner upon their verdict; and if he permit them to separate before they have so done, he violates his oath. His case is stronger than that of a juror, and a juror is clearly not admissible as a witness to prove such fact. 1 Term Rep. 11.

He also cited the case of Patrick Gillaspy vs. Jonas Garrett in the Common Pleas, May Term, 1805, in which he said it was decided, that a juror should not be permitted to give testimony of the jury having cast lots for their verdict. (Ridgely said he was counsel in the case of Gillaspy vs. Garrett, but had no recollection of such a decision. He produced his notes of the case, which made no mention of the point. He mentioned a case lately decided in Sussex, on this subject. . Chief. Justice Johns, read his notes of that case. It was Elliott's lessee vs. Bloxsom and Mosely.

Motion for a new trial on three grounds, the last of which was that the jury had decided by casting lots. Tristam Handy, the bailiff, swore that from circumstances he believed the jury had drawn lots; and Robinson, of counsel for defendant, offered to prove it also by a juror, and cited 6 Bac. Abr. 657, Wilson's notes; and 4 Dali. Rep. 112. The court did not decide whether the juror might be sworn, holding the evidence of the bailiff sufficient, and they granted a new trial on payment of costs.) T. Clayton, for Pierce, now cited 4 Bin. Rep. 155; 5 Burr.

Rep. 2687, contending that the bailiff was not a competent witness, as his evidence would tend to criminate himself. His permitting the jury to separate, knowing they had not agreed on a verdict, otherwise than by casting lots, was a gross violation of duty against which he had expressly sworn. Ridgely, for defendant. The sum of the objection is, that the bailiff shall not be compelled to criminate himself, and the rule of law goes no further. It is for his protection. He here waives any such protection, and is willing to be sworn. Johns, Chief Justice. — The bailiff is admissible ex necessitate rei.

Robert Catlin, the bailiff, then swore that the jury, being equally divided, and finding it impossible to agree in any other way on a verdict, drew lots by placing in a hat an equal number of slips of paper, marked for the plaintiff and defendant respectively. Of the twelve ballots drawn out, the plaintiff had seven and the defendant five, whereupon they gave their verdict for the plaintiff. The defendant then offered several of the jury to prove the same thing; (as to which see 1 Strange 642, note.) The court said it was unnecessary, and they would not hastily decide so important a question. Per curiam.

We are unanimously of opinion that the verdict should be set aside, and a new trial granted. 5 Com. Dig. 505 ; Bull. N. P. 352 2 Tidd. Prac. 817; 1 Strange 642. Davis, Justice, said he was decidedly of opinion that the testimony was inadmissible ; but the bailiff having sworn to the drawing of lots, he concurred in granting the new trial. On the question of costs; Hall contended, that in all cases of verdicts set aside, when there was no fault imputable to the parties, it was done on the payment of costs. He cited four cases in the Court of Common Pleas. 1 Lessee of Baker and. Comegys vs.

Dawson and Brinckloe, May Term 1803, in which the court directed the plaintiff to be called ; but he refused to submit to a nonsuit, and the jury afterwards found a verdict for him. New trial granted. 2d. Barker vs. Reynolds. 3d. Reynolds vs. Moor and Smith, new trial granted May 1807, because the verdict was against! aw and evidence. 4th. Harper and Harper vs. Bailey, new trial May 1802, on the ground of misconduct of one of the jurors. Brinckloe. — The question of costs on granting new trials, is subject to no precise rules. Every case depends on its own particular circumstances.

We shall content ourselves with referring the court to but two of the numerous cases in which verdicts have been set aside without costs. 1st. Edie, es al vs. East India Company, 2 Burr. Rep. 1228, because the verdict was contrary to law: 2d. 1 Strange, 642, where the jury drew lots. Per curiam. The defendant must pay the costs of the term.

Though, we would not be understood as laying this down as the universal rule, we strongly incline to such opinion* (But the case being mentioned the npxS. day, the chief justice took occasion to say he much doubted the propriety of this, as a general rule.) Clayton and Hall, for plaintiff. J. G. Brinckloe and Ridgely, for defendant.