¶1This is a civil action, here by appeal from an order of the Court below, setting aside a verdict for the defendant and granting a new trial upon the following state of facts, found by his Honor, to-wit: “ In this case, it appearing from the affidavits, filed by plaintiff, to the satisfaction of the Court that after the testimony was all given, the argument of counsel concluded, and after the jury had been charged by the Court and directed to retire and consider of their verdict, and before they had found said verdict the said jury, without leave of the *478Court and without the knowledge or consent of the plaintiff’s counsel, separated and dispersed themselves, and whilst so dispersed, partook of refreshments and remained so separate and dispersed, conversing with other persons for the space of one hour. It is thei’efore considered, ordered and adjudged by the Court, that their said verdict in this case be set aside and a new trial be had. Wherefore, let a jury come, &c.”
¶2Was this error in law ?
¶3Before answering this question, it is necessary to enquire whether the granting or refusing a new trial, by the Judge below, is a matter of law, or a matter of discretion, for if it is the latter, this Court can seldom review its exercise; if the former, the exercise of the power is always the subject of review here.
¶4In the State v. Miller, 1 Dev. & Bat. 500, the facts were, that during the progress of the trial, the jurors retired under the charge of an officer, by permission of the Court. They all soon returned but one, who came in two minutes afterwards and excused himself by stating that he had stepped aside to obey a call of nature. The prisoner proposed to prove, and it was assumed as a fact, that the juror had gone into a grocery, near by, for a drink. The prisoner was convicted of murder and moved the Court for a new trial for misconduct in the jury, which motion was refused, and he appealed to the Supreme Court. The judgment was there affirmed by a divided Court.
¶5in delivering the opinion of the majority, holding, that while the conduct of the juror was irregular, yet as it did not appear that he was tampered- with or the prisoner prejudiced therby, the mere misconduct of the juror did not vitiate the verdict so as to render it, in law, null, but that it was a matter wholly addressed to the presiding Judge to grant or refuse a new trial.