The opinion
Loomis, J.,
(dissenting.) While conceding that there is great force in the reasoning that supports the majority opinion, I feel nevertheless constrained to dissent. It seems to me a reproach to the law if it affords no remedy for the flagrant injustice which the case discloses. The demurrer to the petition for a new trial admits all the facts alleged as fully for the purposes of the present inquiry as if found by the court after hearing all the evidence.
The facts then are as follows, (I quote from the record:) —“ During the trial of said cause to the jury, and while the ease was under consideration, Jefferson Perkins, one of the jury who was impanneled in said cause, had a conversation with James S. Mitchell, of the town of Groton, regarding *312 said cause. Said Mitchell made statements to said Perkins concerning the merits of the cause, derogatory to the claims of the plaintiffs made on the trial, and attempted to persuade him to render a verdict sustaining said will and the decree of said court of probate, and adverse to the plaintiffs. By reason of said conversation- with said Mitchell, the said Perkins agreed to, and did, unite with the jury in rendering a verdict for the appellees in said cause; and except for said conversation no verdict would have been rendered in said cause in favor of said appellees. The plaintiffs had no knowledge of said facts until after the adjournment of said court.”
Now if these facts do not constitute “ a reasonable cause ’ - within the meaning of the statute concerning new trials, it is difficult to conceive any such cause. But it is said that these words must be construed as importing some other cause of a similar general character. Granting this position for purposes of argument,we think it is brought within the principle and reason of the causes specified.
The principle is that a party should have his day in court, with a full and fair opportunity to present- his own side of the case and meet that of his adversary. It is said the petitioner had his day in court before the jury; but of what avail, when a day out of court in behalf of the other party nullified it all, and rendered the trial utterly useless.
If Mitchell’s statements had been permitted in court and before the entire jury when the petitioner was not present or notified to be, it would have furnished clear ground for a new trial. Is the ground less reasonable because the statement was made when there was no court to restrain the party, no oath to lend its solemn sanction, and no one to answer it ?
But again, it is said that the cause relied upon for a new trial is one not affecting the merits. It is difficult to see what can more vitally affect the merits than that which subverts the very foundations of a fair judicial trial, nullifies the effect of all legitimate evidence, and renders the merits of no account as influencing the result.
*313 It is not enough to say that the verdict may have been right. The same might be said of a verdict obtained by bribery.
It should be borne in mind that this is not a case of mere bias or suspicion of bias on the part of a juror, but the illegitimate influence here was successful; it actually produced the verdict. It not only accomplished what the evidence before the court could not do, but it overcame all the evidence on the other side and rendered it of no account. The record is explicit, that by reason of the conversation the juror united in rendering the verdict, and that except for the conversation no verdict in favor of the appellees would have been rendered.
The ground therefore upon which this petition rests is not merely that there was a mis-trial, but that there was no trial at all in contemplation of the law. This distinction is forcibly stated by Peabsoít, J., in State v. Tighman, 11 Ired., 513 , on page 553. “When there are circumstances which cast suspicion upon the verdict by showing that there might have been undue or improper influences exerted on the jury, it is in the discretion of the presiding judge to grant a new trial, but if the fact be that undue influence was brought to bear on the jury, as if they were fed at the charge of the prosecutor or the prisoner, or if they be solicited and advised how their verdict should be, or if they have other evidence than that which was offered on the trial, in all such cases there has been in contemplation of law no trial; and this court will direct a trial to be had.” See also Hilliard on New Trials, 2d ed., p. 211, § 12.
In this view of the ease, were there technical difficulties in applying the statutory remedy, it would seem that a court of equity might relieve against a judgment so obtained and grant a new trial on the ground that it was virtually the same as having no opportunity in court to defend. 2 Swift’s Dig., 138; Jeffery v. Fitch, 46 Conn., 601 .
But I think the expression, “other reasonable cause,” may well refer to causes which at the time the statute was passed and long before had been so universally recognized *314 as good ground for a new trial. In 2 Tidd’s Practice, p. 817, misconduct of a jury is mentioned among the most prominent grounds for a new trial. It is so in Hilliard on New Trials; see 2d ed., pages 198 to 252. Also in Hirsh on Juries, § 577 to § 626.
And in all the treatises on the subject a distinction is made between new trials for grounds dehors the record and arrest of judgment for causes appearing on the record. In Quinebaug Bank v. Leavens, 18 Conn., 88 , Church, C. J., in giving the opinion, says :—“ Motions in arrest of judgment in this state for causes not apparent on the record, are in truth only applications for new trials, and are so called and so treated elsewhere; ” and the principles that govern new trials were applied to a motion in arrest in that case.
But I am reminded that though the ground referred to might have been appropriate for a new trial, yet in this state another more simple and speedy remedy by motion in arrest has been adopted, first by the courts, and then by the statute of 1821 relative to jurors.
If this remedy must be considered as exclusive it ends our argument. As to parties having knowledge and opportunity I concede that it is the only remedy, but I cannot think that it was ever intended to embrace those who had no knowledge or means of knowledge of the facts relied upon. The very brief time prescribed for action, namely, twenty-four hours, renders this construction most probable. As to those having knowledge it is a wise policy of the law to require such speedy (almost immediate) action, but as to others, who could by no possibility avail themselves of it, it is extremely unjust, and affords a most reasonable cause for the other remedy provided by the statute relating to new trials. This construction too accords best with the analogies of the law; for instance, it is a general rule that an application for a new trial cannot be made after a motion in arrest has been overruled, but this rule is applied only where the party has knowledge of the fact on which he grounds his motion for a new trial at the time of moving in arrest. Mason v. Palmerton, 2 Carter, 117; McKinney v. Springer, *315 6 Ind., 453 . In Knifong v. Hendricks, 2 Gratt., 212 , it is held that if a party had no opportunity to move for a new trial in the court where the verdict was rendered, equity will grant a new trial.
As to the argument founded on the fact that an independent application for a new trial for a cause like this has never before appeared in our courts, so far as we know, I must admit it has much force. It is however by no means conclusive, for we do not know that there has ever been any occasion for it. True, if this is so, it is quite surprising; but all persons familiar with the courts know that we are frequently surprised with questions made for the first time, which if we consider their nature we should say must have been often made before. Although there are no precedents from our decisions precisely in point, yet several cases may be cited where, in cases for misconduct of jurors, a motion for a new trial was resorted to instead of a motion in arrest.
In State v. Andrews, 29 Conn., 100 , a motion for a new trial was made and entertained by the Supreme Court, though there had been a previous motion in arrest for the same cause. The cause was that a juror not on the panel made confidential remarks about the case to a juror on the panel, which the latter entertained and discussed. A new trial was advised by this court.
In Smith and others v. Merriman, heard and determined by this court for the First Judicial District, May term, 1878, (not reported, but the opinion by Granger, J., was filed with the clerk of the Superior Court,) a motion for a new trial was made for the reason that a certain writing not admitted in evidence was by inadvertence allowed to go to the jury with the other papers, and a new trial for that reason was advised.
In Donlin and wife v. City of Bridgeport, heard by this court for Fairfield County at the October term, 1881, the opinion by Pabk, C. J., being filed with the clerk, a motion for a new trial was made by the defendant on the ground that one of the jurors who united in a verdict for the plaintiff was interested in the precise question at issue. The *316 action was for a personal injury received by the plaintiff, Mrs. Donlin, by reason of a defective highway, while riding and using the horse, wagon and harness of the juror, which were also injured at the same time from the same cause. The majority of the court denied a new trial on the merits under the peculiar circumstances of the case, but not because the remedy was mistaken.
Now as to these cases it should be stated that there was no objection to the remedy and no discussion on that subject. I think the party making the motion in each of them had knowledge of the facts, so that he might have moved in arrest, and in strictness the latter was the true remedy.
My object in citing the cases is simply to show that the motion in arrest has not been universally regarded by the profession, nor by the court, as the only remedy in case of misconduct of a juror.
I think there was error in the judgment complained of.
In this opinion Granger, J., concurred.