Majority
p. 68Root against Sherwood. NEW, YORK, May, 1810. The practice of taking sealed verdicts, is not known in the English courts, and seems to have grown up here, for the purpose of convenience. If a party consents that the jury should seal up their ver* diet and then separate, he ought not, afterwards to be permitted to poll them: It may lead, to .very great abuse; for after the jurors have separated, they may be tampered with by the parties, and some of them induced, when polled, to dissent from the verdict, to which.they have before agreed, and which has been signed and sealed up by them. The signing of the verdict is an express assent by each juror to tjie verdict, and is equivalent to a polU ing of the jury. The jurors must all agree, to make a verdict.[1] If the court refuse to let the jury he polled, after the sealed verdict is delivered, it .viiust he recorded ; but when, the jury have, in fact, been
Headnote
Th< ugh the parties,after the charge of the judge, and before the jury have retired, agree that the jury may deliver & sealed verdict, yet, when the jury comp into court to deliver in the sealed verdict, either pat ty may have the jury polled; and any of the jurors may dissent from the verdict to which they had previously agreed.There is no legal verdict but a public verdict delivered openly in court, and until it is received and recorded, the jurors ftigy alter, it.
THIS was an action for a libel. The cause was tried at the Delaware circuit, in September, 1809, before Mr. Justice 'Thompson.
The trial lasted till late in the evening, and after the charge of the judge, the parties consented that the jury might seal tip theij* verdict. At the opening of the court, on the next day, the jury appeared, and the foreman delivered the sealed verdict, which was opened and read, by which the jury found for the plaintiff for 150 dollars, damages. On being polled, nine of the jurors dissented from the verdict; but, at the same time, stated that they did agree to the verdict when it was made, and so informed the constable before they separated. The judge directed the verdict to be entered, subject to the opinion of the court, pii the question, whether the same ought to be recorded.
Foot, for the defendant.
Haggles and E. Williams, contra.
p. 69polled, and nine of them dissent, the verdict cannot be recorded. No objection was made to the polling of the jury, at the time, so that there was an implied assent; ■and thus this case cannot be aifected by the expediency of the practice. We agree that if the rule of practice was now to be established, it ought to be, that when the parties have agreed that the jury may seal up their verdict and separate, they ought not to be polled.
The jury, when they came to the bar to deliver in their verdict, had a right to dissent from the verdict to which they had previously agreed. There js no verdict of any force but a public verdict, given openly in court; until it was received and recorded it was no verdict, and the jury had a right to alter it as they may a private verdict. The previous agreement, that the jury might seal up their verdict, did not take away from the parties, the right to a public verdict, duly delivered. There being then no legal verdict in this case, a new trial must be awarded with costs to abide the event of the suit.
New trial granted. -