
    William K. W. Hansen vs. Ludlow Manufacturing Company.
    Hampden.
    September 23, 1896.
    October 26, 1896.
    Present: Field, C. J., Holmes, Morton, Lathrop, & Barker, JJ.
    
      Motion for a New Trial — Adoption by Judge of the Action of Officer by accepting Verdict.
    
    At the hearing on a motion for a new trial no evidence was offered to substantiate the facts alleged therein, which were that the court directed the officer to discharge the jury at eleven o’clock p. m. if they had not then agreed, and thé officer did not discharge them, but the jury continued their deliberations, and arrived at a verdict some hours later, which was afterwards returned into and accepted by the court. Held, that, even if the facts stated in the motion were assumed to be true, the judge had the power to adopt the action of the officer, and did so by accepting the verdict.
    Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ. At the trial in the Superior Court, before Gaskill, J., the jury returned a verdict for the defendant; and thereafter the plaintiff filed a motion, for a new trial as follows:
    “ Because the said verdict is against the law and is unlawful for that the same was reached and agreed upon by the jury after the jury were discharged by the court, the court having issued its order to the officer in charge of the jury to discharge said jury at eleven o’clock in the afternoon of June 12, 1896, if the jury had not'at that time agreed upon a verdict; that at said time the jury had not so agreed, and continued their deliberations beyond said time; and afterwards, to wit, on or about three o’clock on the following morning, agreed upon said verdict, which was for the defendant; whereby the plaintiff was aggrieved.”
    At the hearing on the motion, the plaintiff offered no evidence in support thereof, but his attorney stated in argument that he understood the facts as set forth therein. The judge overruled the motion ; and the plaintiff excepted.
    
      J. M. Ross, for the plaintiff.
    
      F. H. Gillett & W. W. McClench, for the defendant.
   Morton, J.

No evidence was offered to substantiate the facts alleged in the motion, and non constat that the court found them to be as alleged. Even if we assume that the court directed the officer to discharge the jury at eleven o’clock P. M., if they had not then agreed, and the officer did not discharge them, but the jury continued their deliberations, and arrived at a verdict some hours later, which was afterwards returned into and accepted by the court, the failure on the part of the officer to observe the directions of the court did not avoid the verdict.

If he had discharged them and they had afterwards agreed on a verdict, the case would have come within Commonwealth v. Townsend, 5 Allen, 216. But the jury were not discharged, and the court had a right to adopt the action of the officer which it did by accepting the verdict, and it thus gave to the officer’s action the same validity which it would have had if done pursuant to instructions originally given. See Hopkins v. Sawyer, 84 Maine, 321. Exceptions overruled.  