Pritchard v. Hennessey
67 Mass. 294
Mass.
1854
Check Treatment
Metcalf, J.

The court are of opinion, that these exceptions cannot be sustained. The first two findings of the jury were uicomplete; and they were properly sent out to find a verdict that should pass upon the whole case presented to them. The practice of sending out a jury, when they return a finding that is absurd or defective, has existed more than four hundred years. We find in the year book, 11 H. 4, 2, pl. 3, that where, in a writ of conspiracy against two, the jury found one guilty and the other not guilty, they were told by the judge that their finding was contradictory; that if one was not guilty, the other could not be guilty, in a charge of conspiracy, and that they had better reconsider their verdictwhereupon they were taken back, and afterwards they returned and found both guilty. See also 2 Hawk. c. 47, § 11; Bac. Ab. Verdict, G; Regina v. Ballivos, 1 P. W. 212; 6 Dane Ab. 235; The State v. Arrington, 3 Murph. 571; Walter v. Junkins, 16 S. & R. 415; Goodwin v. Appleton, 22 Maine, 453.

It is objected by the plaintiff, that the jury could not be sent out in this case,- because they had separated, after then first finding, before they came into court. But the cases cited by him do not support this objection; and the contrary appears from the cases of Edelen v. Thompson, 2 Har. & Gill, 31, Wolfran v. Eyster, 7 Watts, 38, and Sutliff v. Gilbert, 8 Ohio, 409. So where a jury separated after having agreed, and afterwards came into court with a sealed verdict, which one of the jurors refused to affirm, the court sent them out, and they agreed on a verdict, which the court refused to set aside. Bunn v. Hoyt, 3 Johns. 255. Douglass v. Tousey, 2 Wend. 352.

Exceptions overruled.