Backus

Heydenfeldt, J., concurred.

During the trial of this case in the Court below, after the Court had adjourned, and directed the jury to be kept together under the control *276 of an officer, one of the jurymen absented himself from the jury room without the custody of the Sheriff for the period of two hours.

The statute of this State provides that the jury may separate by leave of the Court. In the present case the juror left his fellows without such permission. How far this would vitiate the verdict is a disputed point among the Courts of the various States of the Union; it is universally conceded that it is an irregularity. In New Hampshire, Connecticut, North Carolina and Indiana, it has been held that the mere separation of the jury is not sufficient of itself to authorize the Court to set aside the verdict, but that the party must show facts and circumstances tending to establish improper influences, while in Virginia and Tennessee it has been held that if the separation was such that the juror might have been improperly influenced by others, the verdict would have been set aside.

The latter rule we think is the correct one, because it would be impossible in almost every…