not determine the issues joined in the cause to their full extent, and they found a new verdict which did: Held, that the first verdict might be compared to one received by a judge out of court, or to a sealed verdict retained by the foreman of the jury in his pocket; in neither of which cases is the verdict binding upon the jury, but is liable to be changed and varied from by them in open court; and that a judgment entered on the second verdict was correct.

7. But if the jury, before agreeing, have dispersed, whether with or without leave or consent, and abuse the liberty thus taken or allowed, their verdict will be set aside, and a new trial granted.

Instances of abuse tending to vitiate the verdict, such as conferring with the parties or their agents, or receiving papers from them relative to the matter at issue, or examining witnesses apart, have already been noticed.(1)

It was formerly held, that if the jury ate and drank between the charge and the verdict, it would avoid the verdict. Thus, as early as the 24th of Edward III. (1351,) the jury were sworn and committed to the care of the sheriff, and when the justices would have taken the ver dict, certain persons deposed, that victuals and drink were brought to the jurors after their charge, and that they were suffered to go out; for which reason the justices refused to take their verdict, because it was suspicious, and complaint was made of this to the king by bill, which he endorsed to the justices in banco regis, to do right and reason; and the under sheriff by his servant confessed that he admitted them to go at large; and because this appeared of record, his misdemeanor, and he was an officer, a capias was awarded against him; and because their going at large, and victuals and drink being carried to them was only a

(1) Ante, Chap. III.

surmise, a venire facias was awarded against the jury and the trespassers, and between the parties a venire facias de novo was awarded.(1)

So, in the 35th of Henry VI. (1457,) it was adjudged, that if jurors eat and drink after they are together, by which they agree to their verdict the sooner, they shall make fine, and the verdict is void, and a new venire facias shall be awarded. (2) In like manner, in the 14th of Henry VIII., (1503,) the jury found for the plaintiff, and the defendant came and said, that the jury, between their charge and their verdict, had taken meat and drink. A new venire facias was awarded, and the verdict adjudged void.

But the jury might partake of refreshments, by permission of the court, without affecting their verdict, providing no abuse of the indulgence followed. The law is thus laid down by the author of "The Doctor and Student,”—“I take not the law of the realm to be that the jury, after they be sworn, may not eat, nor drink till they be agreed of the verdict; but truth it is, there is a maxim, and an old custom in the law, that they shall not eat, nor drink after they be sworn, till they have given their verdict, without the assent and license of the justices. And that is ordained by the law for eschewing of divers inconveniences that might follow thereupon, and that specially if they should eat or drink at the costs of the parties; and therefore if they do contrary, it may be laid in an arrest of the judg ment; but with the assent of the justices they may both eat and drink. As if any of the jurors fall sick before they be agreed of their verdict, so sore that he may not com mune of the verdict, then, by the assent of the justices, he may have meat and drink, and also such other things as be necessary for him, and his fellows also, at their own costs, or at the indifferent costs of the parties, if they so

(1) Bro. Abr. Verdict, pl. 17.

(2) Ibid.

(3) Ibid.

agree, or by the assent of the justices, may both eat and drink."(1)

It soon became necessary to extend this rule farther, and a more convenient practice succeeded. So early as Henry IV., it was held, that if the jury eat and drink at their own expense, though punishable for it as a misdemeanor, it would not avoid the verdict.(2) So in Hall v. Vaughan, the jurors ate and drank at their own costs before verdict, and after their departure from the bar, and this was certified upon the postea, yet the verdict was held not to be void, but that the jurors were fineable. It seems otherwise if at the costs of either of the parties.(3)

So Lord Coke, "If the jury after their evidence given unto them at the bar, do at their own charges eat or drink, either before or after they be agreed on their verdict, it is fineable, but it shall not avoid the verdict; but if before they be agreed on their verdict, they eat or drink at the charge of the plaintiff, if the verdict be given for him, it shall avoid the verdict; but if it be given for the defendant it shall not avoid it, et sic e converso."(4)

In Munson's case, the jury having retired to confer on their verdict, and some of them having carried fruit with them, and before they were agreed, having eat of the fruit, these latter were committed to the fleet and fined, and it was moved to set aside the verdict, for this misdemeanor of these jurors; but, because it appeared that they did not eat by the aid, procurement, or means of the plaintiff or defendant, the verdict was sustained.(5)

In Duke of Richmond v. Wise.(6) It appeared; the jury had conveyed to them bottles of wine, which, with other things were put in a bill afterwards, and paid by

(3) 2 Morgan, 20.

(1) Doctor and Student, 271.

(2) Bro. Abr. Jurors, pl. 12. (4) Co. Litt. 227.

(5) 1 Ander. 183,

(6) 1 Vent. 124.

the plaintiff's solicitor. The judges all agreed, that if the jury eat or drink, at the charge of the party for whom they find the verdict, it disannuls the verdict. But here it did not appear that the wine they drank was had, by order of the plaintiff, or any agent for him. It was true, in regard, his solicitor paid for it afterwards, it did induce a presumption that he bespoke it; but that again was extenuated by its being put into a bill with other things that were allowable, and it was not proved, that the wine was provided by him; the verdict was accordingly sustained, and the jury fined.

So, in Harrison v. Rowan.(1) The jury having found in favour of the plaintiff, the defendant now moved the court for a re-trial of the issue, upon the following grounds: 1. That the jury, before they had agreed on a verdict, ate and drank at the expense of the plaintiff, in whose favour they found, without the leave of the court. There were other grounds. It appeared, that the jury were furnished with refreshments of meat and drink, more than once before they had agreed upon their verdict; but not provided at the request, or with the knowledge of the plaintiff. After the jury had delivered in their verdict, and were discharged, the plaintiff ordered a breakfast to be prepared for them, at the same inn where they had been confined, of which they partook; after which the innkeeper made a gross charge against the plaintiff, in which he included in one sum the cost of the breakfast, and of the refreshments before furnished to the jury; but without distinguishing them, and the bill was paid by the plaintiff. It does not appear that the plaintiff knew at the time that the refreshments were so charged.

Washington, J. "The rule long established and uniformly observed is, that the jury are guilty of misbehaviour, if, after they are sent out, and before their verdict is rendered, they eat or drink without the permission of the

(1) 4 Wash. C. C. Rep. 32.

court; but the verdict cannot be impeached for that reason, unless it appear that the refreshments furnished were at the expense of the party in whose favour the verdict is found; and where this is the case, the court will only grant a new trial.-But neither the rule nor the reason of it applies to this case. The refreshments were not provided at the expense of the plaintiff, nor with his privity or consent. Nor does it even appear, that when they were furnished, the innkeeper intended to charge the plaintiff with them, or that he supposed he was authorized to do so, in consequence of any custom prevailing in this state in similar cases. Neither does it appear, that when the bill was paid, the plaintiff knew that refreshments had been furnished the jury; although, if the fact had been otherwise, the court is not prepared to say, that that circumstance would affect the verdict."

And in the recent case of Purinton v. Humphreys,(1) it was held that a verdict will not be set aside, because the jury, without the privity of the prevailing party, and being fatigued and exhausted with the length of the trial, were furnished with some refreshments at their own expense, during their deliberations on the cause, however liable the jurors might be to personal admonition from the court for such misconduct.

It will be seen from the cases cited, that eating and drinking at the expense of the prevailing party has been always held to vitiate the verdict, and that, whether alleged before verdict received or afterwards, by affidavits on motion, or even after motion in arrest of judgment.(2)

8. Indeed, any act of jurors who have separated from, or while in consultation with their fellows, clearly indicative of a destitution of moral principle, and the absence of

(1) 6 Greenl. 379. (2) Vide 2 Lev. 140. Barnes, 441, 443.