Opinion of the Court. Granting new trials, rests hi the sound discretion of the court before which the trial is had, and as a general rule, a refusal to grant a new trial, should not be considered as error; unless it appears manifest, that justice is rendered thereby more precarious. (1)
The first question for consideration is, would the facts disclosed by the affidavit, have justified the court in awarding a new trial, if they had been sworn to by a person not of the jury ? We are satisfied they would, and although new trials should be granted very cautiously for irregular and improper conduct on the part of the jurors in their retirement, when such misconduct is disclosed by an affidavit made by one of the body; yet being fully satisfied of the truth of the facts disclosed in this manner, as also that the juror has not been tampered with, and improperly influenced to swear falsely, and that no such verdict would have been found, if the jury had not listened to such improper testimony, the court would be as much bound to award a new trial on such affidavit, as if the truth of the facts therein contained, had been disclosed, *25by one not of the jury. The court, therefore, not being able to discover that the case under consideration is at variance with the principles here laid down, are of opinion that the court below acted in a new trial on that affidavit, and the must be affirmed,(a) (1)
Judgment affirmed.