Fox v. Smith — 3 Cow. 23

Majority

p. 23

Fox against Smith.

E. Griffin, for the defendant,

moved to set aside the verdiet in this cause, which was rendered for the plaintiff at the last Jefferson Circuit, under the following circumstances: The trial not being closed till evening, it was agreed by the counsel for the parties, that the jury might bring in their verdiet sealed the next morning, which was accordingly done, On the jury coming into the box the next morning, and presenting their verdict sealed, the defendant’s counsel requested of the Judge to have the jury polled, which he denied, and the verdict was recorded.

Headnote

The jury mayny nme before |*ie at the instance ^hetheTit be a sealed or ora vordiGt‘

C. P. Kirkland, contra,

said he found nothing in the English cases which authorized the polling of a jury under any circumstances. If the right arises from the nature and constitution of juries, and because the party has a right to see that it is the separate verdict of each as well as that of the whole, here he has the proper evidence of that by an arrangement to which he was a party, by which the jurors each affix their hand. In the case of Root v, Sherwood, (6 John»

p. 24

Rep. 68) the only question was, whether the Circuit Judge-has the power to poll the jury. His power was established by that case, but it is a matter of discretion with him. An unqualified right to poll the jury, by a party who has had every chance to tamper with them, might lead to the greatest abuse. In Blackley v. Sheldon, ( 7 John. 32 ) it is said the jury may be examined by the poll, if the Court please ; and again, “ If the verdict be delivered in wrting, as it was here, the Justice had a right to permit the verdict to be taken by the poll.”

Conceding that the Judge may order the jury polled, seems to give the party a right to insist on it. I think this cannot be a matter of mere discretion. It has been the uniform practice at the Circuit, as far as I have been acquainted with it, to allow the jury to be polled, whether the verdict he sealed, as here, by consent, or delivered ore tenus by the foreman.

We think the jury may be palled, at the instance

Motion granted.