estimate or calculation. It goes to substantiate the demand of the plaintiffs. It is a dangerous precedent, and may lead to ill consequences, though we do not suppose there was any intention here of doing wrong. All the cases agree that a party delivering papers to the jury without consent or the leave of the court, a new trial shall be granted. We know not what effect this paper may have produced in the minds of the jury; but we well know they should not have had it delivered to them. Solely on this ground, and without expressing our sentiments as to the merits of the case, a new trial is awarded."

So rigidly is the rule adhered to in Massachusetts, as to have been held, in a recent decision, that a correspondence of the jury with the judge, after they retire from the bar, will avoid the verdict, as in Sergeant v. Roberts.(1) The trial of this action lasted three days. After the jury had been out six hours, the foreman wrote to the judge at chambers, that they could not agree, and that they waited for his directions. The judge returned an answer in writing, saying, that he was unwilling, after so much time had been consumed in the cause, to permit them to separate, and giving such directions, as would enable them to consider the cause in a more systematic manner. He added, that the officer had directions to take them to a more convenient apartment, if they desired it. The judge also directed the jury to bring his letter into court with them, in order that it might be filed with the papers in the case. After this they agreed upon a verdict in favour of the defendants, and the plaintiff moved for a new trial, among other reasons, because of this communication from the judge to the jury. Parker, Ch. J., delivered the opinion of the court, and after observing at large upon numerous instances of a similar nature, amounting almost to the set

(1) 1 Pick. 337.

tled practice of the court, concludes, "We are all of opinion, after considering the question maturely, that no communication whatever, ought to take place, between the judge and the jury, after the cause has been committed to them by the charge of the judge, unless in open court, and where practicable, in presence of the counsel in the cause. The oath administered to the officer seems to indicate this as the proper course. He is to suffer no person to speak to them, nor to speak to them himself, unless to ask them whether they are agreed; and he is not to suffer them to separate until they are agreed, unless by order of the court. When the court is adjourned, the judge carries no power with him to his lodgings, and has no more authority over the jury than any other person; and any direction to them from him, either verbal or in writing, is improper. It is not sufficient to say, that this power is in hands highly responsible for the proper exercise of it. The only sure way to prevent all jealousies and suspicions, is to consider the judge as having no control whatever over the case, except in open court, in presence of the parties and their counsel. The public interest requires that litigating parties should have nothing to complain of, or suspect, in the administration of justice, and the convenience of jurors is of small consideration, compared with this great object. It is better that every body should suffer inconvenience, than that a practice should be continued which is capable of abuse, or at least of being the ground of uneasiness and jealousy."(1)

4. But however irregular it may be in the jury to carry away papers without consent of counsel under the direction of the court, yet if not furnished by the prevailing party, and wholly immaterial to the issue, it will not avoid a verdict, in other respects regular.

(1) Vide 6 Green. 141.

Thus, in Vicary v. Farthing (1) the parties were at issue, and at the trial, to prove the nonage of the plaintiff, a church book was given in evidence. After the jury's departure from the bar, and before they had agreed upon their verdict, the plaintiff's solicitor delivered to the jurors the said church book, and afterwards they found for the plaintiff. All this matter was returned upon the postea; and for this cause it was moved that judgment should be stayed, and in proof thereof Metcalf's case was cited.(2) Wiatt, J., said, that it had been ruled in one Pickering's case, where letters patent were given in evidence to the jury, while they were conferring upon their verdict, by the plaintiff, without the court's direction, delivered them the said letters patent, that judgment should be stayed upon the verdict. Gawdy and Popham denied that case; and a distinction was taken between writings and parol proof, but chiefly it was urged it would be mischievous to the party for whom a verdict passed, if the delivery of evidence by the contrary party, or, peradventure, by a stranger without his privity, should stay his judgment. But Fenner, e contra, objected, because there might be some matter in this book to induce them otherwise than they intended before; and because it was delivered on his part for whom the verdict passed. Wherefore it was adjourned; but afterwards, the fact appearing to be immaterial, it was adjudged for the plaintiff.

So, in Rex v. Burdett.(3) Information was brought against Burdett, farmer of Newgate market, for extortion; and the extortion was assigned, for that he had taken divers sums of money of the market people for rent, for the use of the little stalls in the market, and divers great sums for fines. At nisi prius, upon the general issue pleaded, the

(1) Cro. Eliz. 411.
(3) 1 Lord Raym. 148.

(2) Ante, p. 48.

defendant was found guilty, It was moved to set aside the verdict. And one of the irregularities assigned was, that the jury took with them out of court an order of the common council, without the leave of the court, or consent of the parties. And they cited the case of Lady Joy, where a verdict was set aside, because the jury took with them a map of the premises out of court. But as to this point he said, that it was irregular to take the act of the common council; but the matter of the act being evidence on both sides, it would not set aside the verdict.

So, in a recent case in Pennsylvania, Lonsdale v. Brown.(1) A new trial was moved for, because the jury took out with them a deposition, part of which was objected to and overruled at the trial. The court put their denial of the motion, as to this point, upon the ground that the parts of the deposition that had been overruled by the judge, and read by the jury, were altogether irrelevant and immaterial to the issue.

A distinction has been taken between sealed and unsealed papers. The former, it has been held, the jury may have, by permission of the court, but not the latter, except by consent. Yet, should the jury violate the rule in either, or even in both instances, it would not avoid the verdict. It is thus laid down by Judge Buller-"The jury, after going out of court, shall have no evidence with them, but what was shown to the court as evidence, nor that without the direction of the court. The court may permit them to take with them letters patent, and deeds under seal, and the exemplification of witnesses in chancery, if dead; but not a writing without seal, unless by consent of parties. But though the jury take with them patents, deeds, &c., without leave of the court, or writings without seal, books, &c. without consent of court or party, it shall not avoid

(1) 4 Wash. C. C. Rep. 148.

the verdict, though they be taken by the delivery of the party for whom the verdict was given."(1)

If the distinction between writings with and without seal ever existed in this country, it has been long since exploded. Yet in a late case in Pennsylvania, Alexander v. Jamieson,(2) it was put forward, ineffectually to be sure, as the only cause for reversing a judgment. The reasons for the distinction originally, and its inapplicability to modern times, and especially to the tribunals of these United States, are contained in the very learned decision of the court, delivered by Tilghman, Ch. J.-This was an issue directed to try who were the heirs of a certain John Alexander. The defendant gave in evidence a manuscript book found in the trunk of the said Alexander, after his death. When the jury were about to retire, the counsel for the plaintiffs objected to their being permitted to carry this book out with them; but the court were of opinion that the jury should have it, to which opinion an exception was taken, upon which the chief justice observes: "It is no longer a question whether the book was legal evidence; but the naked point is, whether, having been given in evidence, the court might permit the jury to take it out with them. It is undoubtedly laid down as a principle, in some of the English cases, that the jury are to take no papers not under seal, without the consent of both parties; yet the same cases say, that if the court permit them to be taken, it shall be no cause for setting aside the verdict. We are somewhat in the dark as to the reason of this distinction between sealed and unsealed writings, but it is certain that it originated under circumstances not applicable to the present times. The best account of it is to be found in the writings of Lord Hale and Lord Gilbert. They say that in ancient times, men of rank and property had

(1) Bull. N. P. 308.

(2) 5 Binn. 238.