'The opinion of the court was delivered by
Kingman, C. J.:
In the trial of a cause wherein the reía-: ■tors were plaintiffs, and the M. K. & T. Railway Company •' was-defendant, the jury brought in a written verdict, which' being examined by the judge was by him ednsidered imperfect, ■ andTre directed the jury to retire and perfect their verdict, ‘by •cofiiputin^- the interest and making it a part of -the assessed: ■damages. During the absence of the jury, the' attorney for • the defendant, by a written statement, informed the court' that' since the last retirement of the jury he had been informed, .and believed the information true,'that two of-the'jury, (therein named,) were parties engaged' in the prosecution of ¡an action to restrain' the officers of Morris county from the payment of interest on certain bonds issued by said county to the defendant company, while said jurors had, in.answer *672to questions on the impanneling of • the jury, stated that they had no controversy with the defendant company, and concluded with a prayer to the court -to inquire into the matter, that tljL.e jury be discharged, and another jury impanneled to-try the cause. This paper was not sworn to. The court upon the return of the jury made an inquiry into the facts, and found them as stated, and thereupon discharged the jury without receiving the verdict. The verdict had been agreed on, perfected, and reduced to writing, and was then in the hands of the foreman. The relators ask this court to direct the court below to receive and record the verdict, and proceed to judgment thereon.- This summary arrest of the proceedings was irregular, and erroneous. It is useless to examine decisions in other states to show the fact. Our statute makes the granting of a new trial such an order as may be at once taken to this court on error. This modification of the former practice gives new rights, and requires the observance of the steps necessary to enable a party to secure those rights. We abstain from expressing an opinion as to whether a new trial ought or ought not to -have been granted. That is a question that can only be tried on error, when both parties to the action are before this court. The Railway Company is not a party to this proceeding. It is because the parties had' a right to have the action of the court directly reviewed, that the refusal to accept the verdict, and the discharge of the jury, was erroneous. It is argued by the respondent that it is an error that cannot be corrected by mandamus; that the plaintiffs had1 their remedy by making a .bill of exceptions, and thus saving their rights. But the trouble is that a bill of exceptions would not give them a right to have the ruling of the court reviewed, until the final disposition of the case; and thus one of the rights given by law to litigate would be finally lost. It is useless to speculate upon the value of that right. That is not the province of the court. But while the party is thus deprived of the right to take the ruling of the court on this poipt up for review, by itself, he would be in little better position- after a final hearing. If the relators, *673Mtinkers and Terwilliger, should make a bill of exceptions, saving their rights in regard to this error, and upon final trial the verdict should be against them, and this court, in reviewing the ease on error, after such final hearing, should be of the opinion that there was no cause for a new trial, the relators would then have no verdict upon which judgment could be entered. So they would take nothing by a.ruling of this court in their favor. We think the court erred in its action; that its duty was to receive and enter the verdict, and that the relators have no adequate remedy in the due course of law save by the writ of mandamus.
It is suggested in argument that the defendant will have no opportunity to poll the jury; and other difficulties are mentioned in the way of carrying out this order, which are not without weight. The defendant’s right to poll the jury is not questioned; but when in that, or any other matter, the impossibility has been brought about by his own action, then he ought not to be allowed to complain of the result. The peremptory writ will go to enter the verdict as of the 12th day of April, 1871. There will be no mandate as to the judgment, as there is no certainty that a judgment will be a necessary consequence of an entry of the verdict. No inference is to be drawn that a new trial may not be rightfully granted upon sufficient cause shown. That question is not before us, nor can it be decided in the absence of one of the parties to be affected by it. We shall also carefully abstain from directing the amount for which the verdict shall be entered, for although the evidence on that point is abundant and satisfactory in this court, we are not unmindful of the fact that one of the parties is not before the court. The verdict should be made a part of the record, and the court below will know how to make the records of his court speak the truth. Peremptory mandamus awarded.
All the Justices concurring.