6. Misconduct of the jury will sometimes avoid the verdict : as, for example, jurors betting as to the result, 4 Yerg. Tenn. 111 ; sleeping during the trial, 8 Ill. 368 ; un aufilorized separation, 1 Va. Cas. 271 ; 11 Humphr. Tenn. 502 ; 3 Harr. N. J. 468 ; taking refreshment at the Charge of the pre vailing party, 1 Ventr. 124 ; 4 Wash. C. C. 32 ; drinking spirituous liquor, 4 Cow. N. Y. 17, 26 ; 7 id. 562 ; 4 Harr. N. J. 367; 1 Hill, N. Y. 207; talking to strangers on the subject of' the trial, 3 Day, Conn. 223 ; 9 Humphr. Tenn. 646 ; determining the verdict by a re sort to chance. 15 Johns. N. Y. 87 ; 8 Blackf. Ind. 32. But every irregularity which would subject jurors to censure will not overturn the verdict, unless there be some reason to suspect that it may have had an influence on the final result. In general, if it does not ap pear that the misconduct was occasioned by the prevailing party or any one in his behalf, does not indicate any improper bias, and the court cannot see that it either had or might have had an effect unfavorable to the party moving for a new trial, the verdict will not be disturbed. Where, however, the misconduct of the jury amounts to a gross deviation from duty, decency, and order, a new trial will sometimes be granted, on grounds of public policy, without inquiring whether or not any injury has been sustained in that particular case. 2 Graham & W. New Tr. 478-594.
7. Error of the judge will be ground for a new trial : such as, admitting illegal evi dence which has been objected to,—unless the illegal evidence was wholly immaterial, 1r it is certain that no injustice has been done; and where the illegal testimony was admitted in gross violation of the well-settled principles which govern proof, it has been deemed per se ground for a new trial, not withstanding the jury were directed to disre gard it, 13 Johns. N. Y.350 ; 15 id. 239 ; but see 6 N. H. 333 ; improperly rejecting evi dence tending in any degree to aid the jury in determining a material fact, 3 J. J. Marsh. Ky. 229 ; withdrawing testimony once legally before the jury,—unless the excluded testi mony could not be used on a second trial, 4 Humphr. Tenn. 22 ; denying to a party tbe right to be heard through counsel, 2 Bibb, Ky. 76 ; 3 A. K. Marsh. Ky. 465 ; errone ously refusing to nonsuit, 19 Johns. N. Y. 154 ; improperly restricting the examination or cross-examination of witnesses, or allow ing too great latitude in that respect, under circumstances which constitute a clear case of abuse, 6 Barb. N. Y. 383 ; 4 Edw. Ch. N. Y. 621 ; refusing to permit a witness to refer to documents to refresh his memory, where by the denial the complaining party has sus tained injury, 3 Litt. Ky. 338 ; improperly refusing an adjournment, whereby injustice has been done, 2 South. N. J. 518 ; 9 Ga. 121; refusing to give such instructions to the jury as properly arise in the case, where it is mani fest that the jury erred through want of in struction, 4 Ohio, 389 ; 1 Mo. 68 ; 9 id. 305 ; giving to the jury a positive direction to find, when there are circumstances in the Cf490 which ought to have been submitted to them, —unless the verdict is in strict accordance with the weight of evidence, 19 Wend. N. Y. 402 ; 5 Humphr. Tenn. 476 ; giving an erro neous exposition of the law on a point ma terial to the issue,—unless it is certain that no injustice has been done, or the amount in dispute is very trifling, so that the injury is scarcely appreciable, 4 Conn. 356 ; 5 Sandi; N. Y. 180 ; 3 Johns. N. Y. 239 ; misleading the jtiry. by a charge which is not explicit, or which is absurd and impossible, or contradic tory, or argumentative and evasive, 9 II u m phr.
Tenn. 411 ; 11 Wend. N. Y. 83 .; 6 Cow. N. Y. 682 ; erroneous instruction as to the proof that is requisite, 3 Bibb, Ky. 481 ; 21 Me. 20 ; misapprehension of the judge as to a ma terial fact, and a direction to the jury accord ingly, whereby they are misled, 1 Mills, Tenn. 200 ; instructing the jury as to the law upon facts which are purely hypothetical,—but not if the charge was correct in point of law, and tbe result does not show that the jury were misled by the generality of the charge, 8 Ga. 114 ; 2 Ala. N. s. 694 ; submitting as a con tested point what has been admitted, 9 Conn. 216 ; erroneously leaving to the jury the de termination of a question that should have been decided by the court, whereby they have mistaken the law ; charging as to tbe consequences of the verdict. 1 Pick. Mass. 106 ; 2 Graham & W. New Tr. 595-703 ; 3 id. 705-873.
S. Surprise, as a ground for setting aside the verdict, is cautiously allowed. When it is occasioned by the act of the adverse party, or by circunastances out of the knowledge and beyond the control of tbe party injured by it, he has sometimes been relieved ; but not when be might have been fully informed by the exercise of ordinary diligence, 6 Hoist.
— N . J . 242 ; although, even when the com plaina,nt is not entirely free from fault, the court, in cases where great wrong would otherwise be done, will, for the sake of pro moting justice, grant a new trial. Among the cases of surprise which will justify the interposition of the court may be enumerated the following: the unexpectedly being sum moned and detained as a witness or juror in another court, or sudden and serious illness, which prevents the party from attending at the trial, 3 T. B. lionr. Ky. 113 ; 7 id. 59 ; 4 Litt. Ky. 1; 1 Halst. N.J. 344 ; that the cause was brought on prematurely, in the absence of the party,. 6 Dan. Ky. 89 ; errone ous ruling of the court as to the right to be gin, which has worked manifest injustice, 4 Pick. Mass. 156 ; but see 8 Conn. 254, 296 ; perturbation of counsel, arising from sudden and dangerous sickness occurring in his family and coming to his knowledge during the trial, 14 Pick. Mass. 494 ; where some unforeseen accident has prevented the attend ance of a material witness, 6 Mod. 22 ; 11 id. 1; 2 Salk. 645 ; 1 Harp. So. C. 267 ; that tes timony beyond the reach of the party injured, and completely under the control of the oppo site party, was not produced at the trial, 7 Yerg. Tenn. 502 ; 7 Wend. N. Y. 62 ; that competent testimony was unexpectedly ruled out on the trial, 9 Dan. Ky. 26; 2 Vt. 573 ; 2 J. J. Marsh. Ky. 515 ; where a party's own witnesses, through forgetfulness, mistake, 3ontumacy, or perjury, testify differently than anticipated, or where evidence is un expectedly sprung upon a party by his op ponent, 8 Ga. 136 ; 18 Miss. 326 ; the with drawal of a material witness before testify ing, attended with suspicions of collusion, 25 Wend. N. Y. 663; that a material witness was suddenly deprived of the power of testifying by a paralytic stroke, or other affection, or that the testimony of the witness was incoherent on account of his being disconcerted at the trial, 1 Root, Conn. 175 ; where it is dis covered after the trial that a material wit ness who testified is interested in the event, or where it is probable that the verdict was obtained by false testimony, which the party injured could not until after the trial con tradict or expose. 2 C. B. 342 ; 3 Burr. 1771 ; 1 Bingh. 339 ; I Me. 322.