Majority
p. 355Ex parte Hill.
J. A. Spencer,
moved for a mandamus to the Judges of the Court of Common Pleas of Madison county, commanding them to vacate a rule setting aside a verdict for irregularity, in an action between Hill, plaintiff, and one ClarJc, defendant. The verdict was for Hill; and the Court set it aside, on Clarlds motion, because one of the jurors, during the trial, left the box, without permission of the parties or the Court, went out of doors, and was absent some minutes, returned and took his seat, and joined in the verdict against the defendant. Neither of the parties knew of his absence, till he had been gone some time ; but no testimony was given to the jury while he was gone ; and he spoke with no one, except to tell the constable, who came after him and brought him back, that he was one of the jury.
Headnote
íf a juror leave his seat for a short time, without the knowledge of the court or parties, hut no testimony is given during his absence, and he holds communication with n© one on the subject of the cause; though this he a contempt ofcourt. yet it does not avoid the ver« diet.J. Platt, contra;
It is the settled doctrine, that though such conduct as this is a contempt of the Court; yet it is not a ground for avoiding the verdict. The cases on this subject are all collected by the Reporter, in a note to Smith v. Thompson, (1 Cowen's Rep. 221.) Let an alternative mandamus issue.
Rule accordingly»