
    *Calvin G. Sutliff, Ruel Miller, Henry W. Smith, Chauncy H. Wilcox, and Levi Sutliff v. Daniel Gilbert.
    It is no causo for setting aside tbe verdict of a jury that, when agreed upon, it is written and sealed, and the jury separate, if afterward they come-into court and report the sealed verdict.
    It is not misbehavior in a jury, in a civil case, to make up and seal a verdict, and then separate; nor is it error in the court to reassemble the jury and send them out to correct such verdict.
    In an action of trespass, a general verdict for the plaintiff is equivalent to-finding all the defendants guilty.
    Plaintiff can not use the allegations in a defendant’s notice as admissions of' facts to affect him before the jury.
    This case was removed from 'the Supreme Court of the county ©f Trumbull to this court by writ of error.
    The original case was an action of trespass de bonis aspertatis commenced by Gilbert, the defendantin error, against the plaintiffs-
    To the declaration the defendants pleaded the general issue, and, at the same time, gave notice in substance that on the trial of the case they would insist, by way of defense, that the goods in controversy were the goods of one Garry Lewis; that several-judgments had been recovered in favor of divers persons in the-court of common pleas and Supreme Court of Trumbull county against said Lewis, on which executions had been issued and delivered to the defendant, Smith, as sheriff of sai'd Trumbull county;. that the said -Smith, by virtue of said executions, levied'upon said goods as the property of said Lewis; that the other defendants-acted as the servants and assistants of said Smith in making said levy, and by his direction ; that the said Smith having so levied-upon said goods on February 2, 1836, caused public notice to be given according to law that he should sell the same at public auction, as the law directs, on the 15th day of said February. . And that afterward, in accordance with said notice, “the said Smith proceeded to sell the said goods and chattels at public vendue on. the said 15th day of February, and did sell all of said goods and chattels agreeably to said notice, at said public vendue, for a large amount of money, to wit, the sum of $2,500, and applied the full amount,” etc.
    At the last term of the Supreme Court of Trumbull county, the1 cause was submitted to a jury, and a verdict returned in favor of the plaintiff for $2,882.04 damages.
    The defendants then moved for a new trial for various reasons, but the motion was overruled, and judgment rendered on the-verdict.
    Subseqtiently the defendants, by their counsel, tendered a bill of exceptions, which was sealed by the judges holding the court..
    This bill of exceptions discloses the following fact: The jury,, after hearing the testimony, argument of counsel, and charge of the court, retired to consider of their verdict, and agreed upon, *wrote, signed, and put under seal a verdict in the words and figures following, to wit:
    “Daniel Gilbert v. H. W. Smith. It is the opinion of the jury that the plaintiff shall recover the amount that was made out of the goods at sheriff’s sale, with interest from the date of the-levy; the jury are unable to find any document among the papers-delivered to them by the court or the parties whereby they can ascertain the exact sum, therefore they are compelled to give their-verdict in this indifferent manner.” Signed by all the jurors.
    The jury having agreed upon this verdict, without the order or-leave of the court or of the parties, left their room and dispersed for a number of hours, and the next morning upon the coming in of the court, the above-mentioned verdict was delivered by the jury to the court. “Whereupon the court instructed the jurors again to retire to their rooms and determine upon the amount of damages from any materials in their possession, and advised them ■that, in the absence of other testimony, they might adopt the sum alleged in the defendants’ notice to have been made out of the goods as evidence of such amount.” The counsel for the defendants excepted to the sending out of the jury after they had dispersed as aforesaid; also to their-finding any amount when it could not be ascertained from any evidence previously submitted to them, and also to the instruction of the court as to the evidence to be derived from the notice. The jury again retired, and subsequently returned a verdict, as before stated, upon which judgment ■was rendered.
    To reverse this judgment this writ of error is brought. •
    The errors assigned are:
    1. “The court instructed the jury to retire again to their room for the purpose of finding again in said cause, after they had delivered their said finding in court, and had been a long time dispersed.”
    2. “The court instructed the jury to retire and find some .amount of damages against the defendants, when, by the said written verdict, said jurors had not found said defendants guilty, and had expressly found that said plaintiff had not proved him:self to be entitled to any damages in said cause.
    3. “The court instructed said jury that for the purpose of enabling them to find some amount of damage against said defendants, they might regard the notice filed by the defendants’ ^counsel, under the plea of the general issue, as evidence against said defendants.”
    M. Sutlirr, for plaintiffs in error:
    Insisted that the jury having agreed upon a verdict, although the same was informal, and having then separated for hours, could not, with propriety, again be permitted to retire and con.sult upon the case. And, further, that the jury having fully examined the evidence submitted to them, and having returned into court and stated that there was nothing in that evidence which would enable them to assess damages for the plaintiff, in accordance with the rule by them fixed for the assessment of such dam.ages, could not, consistently with the principles of law, be again returned to their room for further consultation.
    As to the third error assigned, he insisted that the court were clearly wrong in permitting the jury to receive as evidence .against the then defendants an allegation contained in the notice attached to the plea of the general issue. Even where there are,, under the statute, several pleas, and issues joined upon all, the facts admitted by the defendant in one plea can not be evidence in favor of the plaintiff to sustain the issue upon another, and this, notwithstanding the rule that facts admitted by the pleading need not be proved by the parties. A notice attached to a plea of the general issue is no part of the record in a case; it is-intended"merely to give a plaintiff notice of the defense relied upon, and in no case can it be made use of as evidence against the party filing it. Upon this point in the case he cited 2 Saund. Pl. & Ev. 724; Weller, 380; 1 Chit. Pl. 480; 2 N. Hamp. 89; 8 Johns. 109; 13 Ib. 229, 475; 10 Ib. 142; 14 Ib. 89; 20 Ib. 749; 2 Tyler, 74.
    Wm. L. Knight, for defendant in error:
    Argued that inasmuch as the jury had settled the rights of the> parties so far as the issue was concerned, and nothing remained for them to. do but to compute the damages upon the principles-settled, it was proper for them again to retire to make their computation. And, further, that the sum stated by the defendants in their notice ^s being that for which the goods were sold by the sheriff, might with propriety be by the jury taken into consideration in making the computation.
   * Judge Hitchcock

delivered the opinion of the court:

Two questions seem to be necessarily involved in the examination of the first error assigned in this case. The first is, whether' after a jury have retired to consider of their verdict, and shall have separated before returning their verdict to the court, they can afterward be permitted to retire to their room and further deliberate upon the case submitted to them; and, second, whether it-is in the power of the court, after a jury shall have agreed upon their verdict, and delivered the same in court, to send them out again for further deliberation.

As a general rule, a jury shall not be permitted to separate,, after retiring from the bar of the court, until they have agreed upon their verdict. Still, there may be peculiar circumstances which would, to some extent, justify a separation. But in no case-would it be proper for individual jurors to mingle with others than their fellows until a verdict is found. And should a jury, of their own pleasure, having been put in charge of a case, leave their room and mingle with the people of the town or vicinity, and. ^afterward return to their room and agree upon a verdict, it would be good ground for a motion to set aside the verdict, and for a new ■trial.

Formerly, jurors were not permitted to separate .until their verdict was returned into court; and in order to compel them to .agree, they were deprived of the necessaries of life for the time being. But these rigid rules have been much relaxed in the practice of this state. We do not, it is true, permit jurors to separate until a verdict is found, but we allow them all necessary refreshment, and when they have agreed upon a verdict, if the ■ court is not in session they are permitted to put it under seal, and then separate. This verdict they return when the court again convenes. The verdict thus returned has the sarne^ effect, and must be treated in the same manner, as if returned in open court» before any separation of the jury had taken place. But if, after' having once agreed, and put their verdict under seal, a jury shall separate, and subsequently meet in their room and change this sealed verdict, such altered verdict could not, with propriety, lay ■the foundation of a judgment. Such conduct in a jury would constitute that degree of misbehavior for which a verdict ought to be set aside. The most common practice of this court is to direct the jury that if the court shall not be in session when they shall have agreed, to return their verdict to the clerk; and if he can not be found, to put it under seal, and bring it in at the open-ing *of the court In thus far relaxing ancient rules, we have experienced no inconvenience, and I have no doubt we might go further without any danger; for I believe the more confidence is placed in jurors, the more they are treated like reasonable men, the more will right and justice, through their instrumentality, be done. ,

In the case under consideration, the jurors did not misbehave. They did not separate until a verdict was found and placed under seal. This same verdict was, at the opening of the court on the ■next morning, delivered to the court. As before remarked, it must be treated and considered the same as if returned before there had been any separation of the jury. The question then arises, whether the court, after a jury have once returned a verdict, have the power to remand them to their room for further .consultation. When the jury return a general verdict settling the .rights of the parties, and upon which a judgment can be entered, or where they return a special verdict, finding the facts of a ease and leaving the questions of law arising upon those facts to the court, it would be improper for the court to send them out again . for further consideration. If such verdict was against law or evidence, the only relief against its effects would be on a motion for a new trial. But where the jury have decided the issue between the parties, but have failed to return a complete verdict, as> for instance, where, in an action on a promissory note, they have found for the plaintiff the amount of the note with interest, but have not specified in dollar’s and cents that amount, they may, with propriety, be returned to their room to make the computation of interest.

The case under consideration is somewhat analogous. The jury found in favor of the plaintiff; they fixed upon the rule of •damages, and that rule was, the amount for which the property in litigation sold, together with the interest from a specified time. Nothing remained but to compute this interest, and for this purpose the jury might well be sent out. It was not with a view to make any change in the verdict, or to settle any new principle, but to carry out the original finding. And if there was any evidence before the jury showing the amount for which the property had been sold, and which had by them been overlooked, it was proper for the court to refer them to it. There was, then, no error in this case, in sending out the jury a second time.

The second error assigned is intimately connected with the first, and only differs from it essentially in this, that by it it seems to be supposed that the jury did not respond to the issue between the parties, inasmuch as they did not explicitly say that‘the defendants were guilty of the trespass. It is rarely the -case in our practice, that the jury return a formal and technical verdict. They usually find in general terms for the plaintiff or defendant, and-the clerk, in recording the verdict, applies this finding to the issues made up- by the pleadings. In this case the jury found for the plaintiff, which was equivalent to finding the' •several defendants guilty; and the clerk very properly so recorded their verdict.

The third error assigned, raises the question whether a plaintiff can.make use of a notice-attached to the defendants’ plea of •the general issue as evidence against the defendant. This is believed to be a new question, so far as the practice of the courts of this state are concerned. By our practice act, a defendant may, by leave of the court, plead several pleas to the same action. ■He may plead the general issue, and one or more special pleas in bar. Now the principle is well settled, that what is admitted in pleading need not be proven. And a party will be stopped -from, proving anything inconsistent with, or against his plea. I apprehend, however, that this principle applies only to the admissions of the particular plea upon which the issue on trial is joined. A defendant pleads the general issue and a special plea in bar. In this special plea he admits, to a certain extent, the allegations of the declaration. Notwithstanding these admissions, upon the trial of the issues, the plaintiff must prove his case as set forth in the declaration, otherwise he will fail under the plea of the general issue. And in making this proof, he can not use the admissions in the special plea as evidence against the defendant. If this could be done, a great part of the advantage intended to be secured by the statute in allowing double pleading, would be lost. To take a. familiar instance: in an action of slander, a defendant pleads-the general issue, and a special plea of justification. An admission of the speaking of the words in this special plea does not exonerate the plaintiff from proving such speaking. I am aware that it was once otherwise decided in Massachusetts; but this decision is believed to be contrary to the decisions of the courts in England and in the other states of this Union. It. is certainly contrary to the uniform practice of the courts in this state. If such be the rules and principles with respect to *pleas, how is it with respect to a notice? Each plea must,

in itself contain a defense to the action. If the facts therein alleged are true, the plaintiff may demur to it, and thereby raise the question whether those facts constitute a defense. But it is not so with a notice. It can not be demurred to. So far it is not. a part of the record. It does not constitute the defense in the case. That defense consists in the denial of the whole cause of action by the plea of the general issue. If the notice, then, can be used as evidence by the plaintiff, it must be on the ground that it-is an admission or confession by a defendant of the facts therein stated. But this is not the character or intention of a notice. It is intended merely to apprise the opposite party of the matters and things to be relied upon in defense, in the event that the-plaintiff shall sustain his case by proof. Such being its character and intent, it would bo improper to permit a plaintiff to use it as evidence to make out his case. But even could it be used in evidence as a confession or admission, like every other confession, it must be taken all together. It would not be allowed to take a part and reject a part, but the whole must go together. And ifi taking the whole together, there is sufficient to exonerate the defendant from the action of the plaintiff, it must so operate. Otherwise a defendant would be placed in a worse situation by giving notice, than by embodying the facts contained in his notice in a special plea. Because, if embraced in a special plea, and a plaint* iff would admit any of them as evidence, he must admit the whole, as he does in effect, by a general demurrer. On the whole, we entertain the opinion that a plaintiff can not use the whole or any part of a notice, attached to a defendant’s plea, as evidence against a defendant, and this opinion is fully sustained by the authorities cited by defendants’ counsel.

In the case under consideration, the court directed the jury that, in the absence, of other proof, they might take as evidence against the defendants, an allegation in the notice as to the amount for which the property in litigation was sold at sheriff’s sale. In this there was error, and for this error the judgment must be reversed, with costs.

The case will be again set down for trial, and remanded to Trumbull county.  