
    Gamsby v. Columbia.
    The mere fact of a jury being informed by the attending officer, as ordered by the court, that (for supposed inability to agree) they were all discharged from the further consideration of the case, and two of them (on account of sickness) from any further service, will not vitiate a verdict upon which they afterwards agree.
    The facts on which a motion for a new trial is based should be settled at the trial term.
    Case. Some time after the cause had been given to the jury, and they had informed the court by a written message that they could not agree, the officer having charge of the jury was directed to inform them that they were discharged from the further consideration of the case, and that two of them (who were sick) were discharged from all further service. When the officer executed this order, one of the jurors proposed that another vote be taken on the case. Another vote was taken, and the result showing a change of two votes, the jury concluded to remain and try to agree, which they did, and finally agreed, and returned a verdict for the defendants. The plaintiff moved for a new trial. The court found the facts to be, that the jury did not separate or depart from their room, or from the charge of the officer, and that the fairness and justice of the trial were not affected by anything that happened after the order of discharge was given. The case is to be so amended as to reserve the evidence upon which these facts were found, if the court, at the law term, will consider it.
    
      Aldrich, Shurtleff, and Ray, Drew Sf Jordan, for the plaintiff.
    
      Dudley, Ladd, and’ Bingham, for the defendants.
   Stanley, J.

There is no cause for a new trial. Nims v. Bigelow, 44 N. H. 876, 880-882; The King v. Woolf, 1 Bennett & Heard Ld. Cr. Cases (2d ed.) 496. The case should not be so amended as to bring the evidence to the law term. The facts on which a motion for a new trial is based should be settled at the trial term.

Judgment on the verdict.

Bingham, J., did not sit.  