The Court refused, but directed the jury that on the whole of the evidence offered as aforesaid, the plaintiff is not entitled to recover, and their verdict ought to be for the defendant. Cranch, J., absent. A juror was withdrawn, by consent, three of the jurors having escaped out of the jury-room, through the window, contrary to the express command of the bailiff, as stated in his affidavit.
One of them, John Dunlop, being informed that he might, if he thought proper, state any thing, on oath, in exculpation of the charge, was sworn; and stated, that finding the jury not like to agree, and there being a great deal of warmth among them, he thought it would be productive of no good to remain together, and made the best of his way out. The two others, Richard Boyer and Henry O’Reily, being also sworn, and stating only a similar excuse, were each fined by the Court fifteen dollars.