#### Charles Ingersoll, Resp’t, *v.*The Town of Lansing, App’lt.

*(Supreme Court, General Term, Fourth Department,*

*Filed January, 1889).*

1. Jury trial—Duties of presiding justice—Cannot be delegated.

The duties of the presiding justice, after a jury has retired, in facilitating their deliberations by having read parts of the evidence, by further instructions, and in determining when they shall be discharged without an agreement, and in receiving the verdict, are clearly judicial and as important as the duties performed before the case is submitted, and the discharge of them can neither be abandoned, nor all, nor any of them, delegated to the clerk and crier.

3. Same—Ho authority except court can control jury or receive ITS VERDICT.

There cannot be a circuit court without the personal presence of a justice of the supreme court, and no authority, except the circuit court, has power to control the jury or receive its verdict.

*S.*Same—When verdict set aside because of the coercion of the JURY.

When the court made no provision for discharging the jury during the absence of the presiding justice from the county, unless they agreed,which compelled them to bring in a verdict or remain in confinement for four days, without the aid, protection or even presence of the court: *Held,*that this direction was coercive and improper, and the trial court erred in refusing to set aside the verdict.

Appeal from a judgment in favor of the plaintiff upon a verdict of a jury rendered at the Tompkins circuit, and also from an order denying a motion for a new trial.

*Newman & McLochlan,*for app’lt; *Simeon Smith,*for resp’t.

Follett, J.

Appeal from a judgment entered on a verdict and from an order denying a motion for a new trial made on the minutes and heard in this court on a case which contains all of the evidence.

The record shows that this case was submitted to the jury in the afternoon of Friday, March 16, 1888. The justice presiding informed the jury that when the court adjourned for the day it would be adjourned until the following Tuesday, March 20th, at 10 A. m., and, by the consent of the attorneys for both parties, he directed the jury (unless they agreed before the court adjourned for the day) to report their verdict to the clerk, who was directed to receive and enter it. Later in the day, and before the jury agreed, the justice left for his home, some fifty miles distant. At seven o’clock p. M. of March 16th, the court and crier entered the court room, and, the jury not reporting, the crier proclaimed an adjournment of the court until Satur*164day, March 17th, at 9: 30 A. m., at which time they returned to the court room, and the crier, we assume, proclaimed that the court was open, and thereupon the jury came into court with an oral verdict for the plaintiff,, assessing his damages at seventy-five dollars. The clerk entered the verdict and discharged the jury, and, there-” upon, the crier proclaimed an adjournment until Tuesday, March 20, at 10 a. m., at which time the justice returned and the court was opened and thereafter held; all of these-adjournments were entered in the minutes by the clerk. Later in the term-the attorneys for the defendant moved to-set aside the verdict and for a new trial, upon the ground that the jurors were required to agree or remain together frorn March 16th to March 20th, and that it was undue-coercion. The motion was denied.

The court made no provision for discharging the jury during the absence of the presiding justice from the county unless they agreed, which compelled them to bring in a verdict or remain in confinement for four days, without, the aid, protection, or even presence of the court. This-direction was coercive and improper, and the trial court erred in refusing to aside the verdict. *Green*v. Telfair, 11 How. Pr., 260; *Pierce*v. *Pierce,*38 Mich., 412.

We do not intimate that circumstances may not exist justifying the detention of a jury for .more than four days, provided there is a court ready to aid them in their deliberations, or to relieve them from confinement, in case it. becomes apparent that further deliberation will be unavailing, or further confinement unreasonably oppressive-to some or all of the jurors. The duties of the presiding justice, after a jury has retired, in facilitating their deliberations by having read parts of the evidence; by further instructions, by repeating or explaining instructions already given, and in determining when they shall be discharged without an agreement and in receiving the verdict, are as clearly judicial and as important as the duties performed before tho case is submitted, and the discharge of them can neither be abandoned, nor all, or any of them, delegated to the clerk and crier. There cannot be a circuit court without the personal presence of a justice of the supreme court, and no authority, except the circuit court has power to. control the jury or receive its verdict.

The judgment and order are reversed, and a new trial is granted, with costs to abide the event.

Kennedy, J., concurs.

Martin, J.

I concur in the result, but I am not prepared to hold that the parties to an action may not, under any circumstances, stipulate that the verdict may be received *165and entered by the clerk, in the absence of the judge, and be bound by such stipulation. I regard the decision of that question at this time as unnecessary.