130 A. 514 | N.J. | 1925
It should be unnecessary to call attention to the fundamental fact that the clerk of a court is at common law a ministerial, and not a judicial officer. As such ministerial officer it was his duty to take the verdict of a jury, but at common law only in the presence of the judge, or, to put it in another way, in open court. 38 Cyc. 1873. One important reason for this is that if there be irregularity or inconsistency, or other infirmity in the verdict which is subject to correction, this may be done under the direction of the *53
court itself, as it frequently is done. Id. 1892, 1893; Engle
v. State,
This rule of the common law, doubtless the result of several centuries of experience, has been greatly relaxed by statute as a matter of convenience, but this relaxation sometimes leads to trouble, as in the present case. Even in criminal trials, except for murder, the clerk may be deputized to take the verdict.Comp. Stat., p. 1844, pl. 74-A. Similarly in civil issues in the superior courts of common law by section 160 of the Practice act of 1893. By the District Court act (Comp. Stat., p. 1961, § 27), the clerk "may, in the absence of the judge * * * receive the verdicts of juries in like manner as the judge of said court might do if present." But it will be observed that neither the Criminal Procedure act, nor the Practice act, nor the District Court act, goes further than to authorize the clerk to receive
or take the verdict (and in criminal cases poll the jury). The confusion that would result from clerks undertaking to instruct juries and mould verdicts need not be imagined; there are several cases in the reports, and the present case is another. Folkner
v. Hopkins,
There is only one sound rule of conduct for a clerk in a case where he is deputized to take a verdict and some complication has arisen; to receive the verdict as rendered, no matter how wrong it may appear, and let it go at that. As we said in Folkner v.Hopkins, supra, "it is no concern of his, officially, whether the verdict can be upheld, or whether or not judgment can be entered upon it." So, in the case at bar, it was no concern of the clerk that the jury proposed to render a fifty per cent. verdict; if the judge had been present he could have sent them back; whether he would have been correct in so doing we need not decide now, but the judge was not present and his instructions to the jury through a telephone, and then through the clerk, were no legal substitute for his presence. If he was to mould the verdict or send the jury back to correct it, he should have the jury *54 before him in open court. Any other practice, as we said inJohnson v. Depuy, supra, "would be subject to great abuses."
That the attorneys did not object in presence of the clerk is of no consequence. Unless the judge was present, there was no court except by statute for the taking of the verdict. Objection was made to the judge in due season.
Let the judgment be reversed and the case remanded for a new trial.
