#### *Howle’s Adm’r v. Dunn & Co.

November, 1829.

Verdict — Separation of Jury before Rendering — Effect.* —In assumpsit against an administrator issues are joined upon pleas of non assumpsit and fully administered; the jury, after retiring from the bar, without leave of court or consent of parties, separated and dispersed, and afterwards rendered verdict for defendant; Held, verdict ought for that cause to be set aside.

In an action of assumpsit, in the county court of Hanover, brought by Dunn *&*Co. against Anderson administrator of Howie, upon the assumpsit of the intestate, wherein issues were made up upon the pleas of non assumpsit and fully administered, the jury found a verdict for the defendant. The plaintiffs moved the court to set the verdict aside, and direct a new trial, upon the ground, “that, after the jury had retired from the bar, and before they rendered their verdict, they had left the jury room and dispersed over the court-yard, during a temporary recess of the court: but the court overruled the motion, and gave judgment for the defendant. The plaintiffs took the exceptions; and prayed and obtained a supersedeas from the circuit court of the county; which reversed the judgment, set aside the verdict, and remanded the cause to the county court, for a new trial to be had therein. And then Anderson appealed to this court.

Daniel, for the appellant,,

remarked that the bill of exceptions did not state, whether the jury had separated before or after they had agreed on a verdict: for aught that appeared, they might not have separated till after the verdict was agreed on. The court ought to take the case most strongly against the party who took the exception. The rules touching the conduct of juries, were formerly very strict; but they are now so modified, that the ease and comfort of the jury may be favoured, so far as indulgence is not dangerous to the fair administration of justice; and there are cases of acknowledged misbehaviour in the jury, for which they are liable to be fined, that will not vitiate their verdict, the party for whom it is given not being guilty of *any misbehaviour himself. The mere separation of the jury, in a civil case like this, ought not to affect the verdict, especially as it does not appear, that the separation took place before the verdict was agreed on. He cited Co. Litt. 227, b. ; 3 Com. Dig. Enquest; F. pp. 563, 4; 6 Id. Pleader, Verdict; S. 45, 46, pp. 259, 261; Lester v. Stanley, 3 Day 287, and Howard v. Cobb, Id. 310, cases in which the verdict was set aside because of the. separation of the jury, but it was separation before the verdict. State v. Babcock, 1 Conn. Rep. 401; Branden v. Grannis, Id. 402, in note; Brown v. M’Connel, 1 Bibb 265; 7 Bac. Abr. Verdict, H. pp. 10, 12, and the case there cited of Ld. St. John v. Abbot, Barnes 441.

Lyons, for the appellee,

said it was misbehaviour in the jury to separate without leave of the court or consent of the parties, before verdict rendered; and, obviously, misbehaviour of a kind to expose a jury to improper influence. The only way to correct the evil of such misbehaviour, and to preserve the purity of jurj* trial, was to set aside the verdict. He cited Pleasants v. Ross, 1 Wash. 156; Hale v. Cove, 1 Stra. 642; Metcalfe v. Deane, Cro. Eliz. 189; Id. 411; Baine v. Chambers, 1 Serg. & Rawle 169. He observed, that the law of Virginia was so jealous of the undue influence of conversations between the jury and others, that it expressly prohibited the sheriff from conversing with any juror, but by order of the court, after the jury have retired from the bar; 1 Rev. Code, ch. 75, § 16, p. 267.

*

Verdict — Separation of Jury before Rendering. — In Ragland v. Wills, 6 Leigh 6, it is said, there remains to be noticed one case in this court, *Howle v. Dunn,*1 *Leigh*455. There, a motion was made for a new trial, on the ground, that after the jury had retired from the bar, and before they had rendered their verdict, they had left the jury room and dispersed from the court yard. The county court overruled a motion for a new trial and upon appeal to the circuit court the judgment was reversed, and the verdict set aside, which judgment was affirmed by this court. That case differed from the case at bar, inasmuch as, there, it did not appear whether the j ury had agreed on their verdict, before their dispersion: here it was agreed on, written and signed. The present case, therefore, and the decision here made’, will not, of necessity, overrule that. And on page 7 of the same case, Tucker, P., says that the case at bar is clearly distinguishable from *Howle v. Dunn,*on the grounds aforesaid. On the same question the principal case is cited in Thompson v. Com., 8 Gratt. 643.

PFR CURIAM.

The judgment of the circuit court is affirmed.