
    Sargent versus Roberts et al.
    
    A. new trial was granted, because the judge, after the Court was adjourned, wrote a letter to the jury respecting the cause that had been committed to them.
    The trial of this action, which was assumpsit, was had before Jackson J., and lasted three days. After the jury had been out six hours, the foreman wrote to the judge at chambers, that they could not agree, and that they waited for his directions. The judge returned an answer in writing, saying, that he was unwilling, after so much time had been consumed in the cause, to permit them to separate, and giving such directions as would enable them to reconsider the cause in a more systematic manner. He added, that the officer had directions to take them to a more convenient apartment if they desired it. The judge also directed the jury to bring his letter into court with them, in order that it might be filed with the papers in the case. After this they agreed upon a verdict in favor of the defendants, and the plaintiff moved for a new trial, among other reasons, because of this communication from the judge to the jury.
    
      W. Sullivan, in support of the motion,
    referred to St. 1807, c. 140, § 15, which provides, that in case the jurors shall return into court without having been able to agree on a verdict, it shall be in the discretion of the Court, explaining to them its understanding of questions of law, &c., to send them out again for further deliberation ; and if they shall return a second time, without being able to agree, they shall not be liable to be sent out a third time, unless, &c. He cited this to show the power of the Court in respect to the jury, and contended that after a cause has been summed up, and the jury have retired, the judge has nothing to do with them until they come into court again. Every communication from the judge to a jury charged with a cause should be in open court, where both parties may know what it is, and may request a direction on a particular point, and may except to any which they think erroneous. 2 Tidd’s Pr. (2d Am. ed.) 786 ; Church v. Hubbart, 2 Cranch, 239, note ; Douglass v. M'Allister, 3 Cranch, 299 ; Brown v. Campbell, 1 Serg. & Rawle, 176 ; Shaeffer v. Landis, ibid. 449 ; Powers v. M'Ferran, 2 Serg. & Rawle, 44 ; Hamilton v. Menor, ibid. 70 ; Vincent v. Huff, 4 Serg. & Rawle, 298 If the directions in the letter were necessary or proper, they should have been given before the jury retired. It is impossible to tell what effect the letter had upon their minds, but it must have had some, otherwise they could not have agreed. The jury did not ask for instructions to assist them in their deliberations, and the giving them implies that a judge may send his instructions to a jury at any time, asked or not asked, il any thing has been omitted in his summing up of the cause. If a judge of the Supreme Court may do this, then a judge of an inferior court may likewise ; and if it may be done in civil cases, why not in criminal ? No danger is to be apprehended from the exercise of this power by such judges as we have now, but it rests upon an alarming principle. When once a precedent is established, a judge may give any instructions' as to the weight of the evidence or any thing else. A judge should feel no more solicitude about the time consumed in a long cause than in a short one ; the parties are entitled at all events to a fair trial.
    In regard to the conduct and duties of juries, he cited Bushell's case, Vaugh. 135 ; Knight v. Freeport, 13 Mass. Rep. 218 ; Metcalf v. Deane, Cro. Eliz. 189 ; Vicary v. Farthing, ibid. 411 ; Bull. N. P. 308 ; 2 Trials per Pais, 252 ; Eunomus, Dial. 3, § 52 et seq. ; Thayer v. Van Vleet, 5 Johns. Rep. 111 ; and as to the impropriety of compelling a jury to agree, he referred to The People v. Olcott, 2 Johns. Cas. 309; The People v. Goodwin, 18 Johns. Rep. 203. The common law right to poll the jury has been recognized in this country. The People v. Denton, 2 Johns. Cas. 276 , Blackley v. Sheldon, 7 Johns. Rep. 32.
    
      Prescott, on the other side.
    The giving of written instruc lions to the jury is warranted by the common law of this State, and is correct in principle. . The oldest lawyer at the bar does not recollect the time when it was not the practice for the judge thus to instruct the jury, where they have met with any difficulty and have sent to him for instructions. They most frequently state the difficulty in court, but here the Court was adjourned, and they must apply to the judge at chambers. If such has been the practice of our courts for a long time, it is common law here, as much as if it had been enacted by statute. Very little is said in the books of practice about the duty of the judge. It appears that the jury sometimes go to the judge at chambers and deliver their verdict ore tenus ; which they may afterwards confirm, or not, in court. Saunders v. Freeman, Plow. 211. Papers not under the seal of the Court are given to the jury every day here ; in England this would be sufficient to set aside the verdict. Why should these ancient usages be overturned ? What is the inconvenience of the practice complained of ? Before the jury go from the bar, a party may ask the judge to instruct them on a particular point; but after they have gone out, it is too late for such a request, even if they should come into court for further instructions. Exceptions may be filed at any time during the term, and where the instructions are in writing, they will be more precise, and the party will have a better opportunity of excepting to them. There is, then, no danger to be apprehended from the practice. On the other hand, suppose that the jury, after deliberating six hours, send to the judge a single question ; — if he must send back word that they must remain together all • night, much inconvenience will ensue. They will either dispute all night, and be less likely to consider the cause properly, or they will, after wrangling, agree, in order that they may separate. It requires some compromise of opinion in order to make twelve men agree. If they are to separate after six hours, without agreeing, there will be a practice of holding out, and many cases must go to a second jury.
    It is said that the statute prescribes what is to be done in case the jury do not agree. It was known by the person who drew the statute, that it was the practice to send instructions to the jury. The object of it was to enlarge the power of the "ury.
   The opinion of the Court was afterwards delivered by

Parker C. J.

One ground on which the motion for a newv trial rests, is the written communication from the judge to the jury, after the Court was adjourned, in answer to a note from t,he foreman stating the improbability of their agreeing upon a verdict. It has been the practice in this county for the judge, at his discretion, to allow the jury to separate, after they had been so long together as to satisfy him that there was such a difference of opinion as would result in a final disagreement, unless the fear of remaining all night in an uncomfortable situation should prevent it. This practice probably arose from the custom of having but one session in the day ; the effect of which is, that there is much less opportunity for the jury to communicate with the Court, than there is in other counties where there are two sessions, and where the Court is frequently in session in the evening. In those cases, if the jury want information, they can obtain it, and the Court will take the cause from them, when it shall appear that the keeping them longer together will be likely to occasion much inconvenience without eventually obtaining a verdict, or else, that a verdict will be given contrary to the opinion of some of the jury, merely to avoid that inconvenience. But in this county, where the Court usually adjourns at two or three o’clock until the next morning, juries are more frequently exposed to the hazard of remaining together all night, and are deprived of the privilege intended to be given them by the statute, of being discharged of the cause after going into court a second time without being able to agree. The object of this statute was, no doubt, to prevent that restraint upon juries which the common law allows, or perhaps requires, and it was in the spirit of this statute that the judges here have substituted the discharge of them at their discretion, after the Court shall be adjourned. No material inconvenience has hitherto been seen to come from the exercise of this power, and it is not known that the exercise of it has ever been complained of by the bar. For myself, I have done this repeatedly, and have, in reply to notes received from the foreman, sent answers either complying with or refusing the request of the jury ; and 1 have sometimes stated to them, as a reason why they could not be dismissed, the importance of terminating a dispute which had already occasioned much expense to the parties. I cannot say when this practice began, but atn satisfied that it existed before it was adopted by me. It probably originated in the idea, that there were some powers necessarily exercised by the judge out of court; and this of releasing the jury from fatigue and great personal inconvenience, after they had made all suitable efforts to come to an agreement, was among the least questionable.

The communication in question in this case was made upon the ground of this practice, which had been so common here as to pass without notice. The object of the note of the foreman was probably to obtain leave for the jury to separate, and the answer of the judge was calculated to enable them to revise the case in a systematic manner, in the hope that such a revision would produce a union of opinion on one side or the other of the cause. It probably had that effect. As it is impossible, we think, to complain of the substance of the communication, the” only question is, whether any communication at all is proper, and if it was not, the party against whom the verdict was is entitled to a new trial. And we are all of opinion, after considering the question maturely, that no communication whatever ought to take place between the judge and the jury, after the cause has been committed to them by the charge of the judge, unless in open court, and, where prac ticable, in presence of the counsel in the cause. The oath ad ministered to the officer seems to indicate this as the proper course : “ He is to suffer no person to speak to them, nor to speak to them himself unless to ask them whether they are agreed and he is not to suffer them to separate until they are agreed, unless by order of court. When the court is adjourned, the judge carries no power with him to his lodgings, and has no more authority over the jury than any other person ; and any direction to them from him, either verbal or in writing, is improper. It is not sufficient to say that this power is in hands highly responsible for the proper exercise of it; the only sure way to prevent all jealousies and suspicions is to consider the judge as having no control whatever over the case, except in open court in presence of the parties and their counsel. The public interest requires that litigating parties should have nothing to complain of or suspect in- the administration of justice, and the convenience of jurors is of small consideration compared with this great object. If, by reason of the long intervals between the sessions of the Court, jurors here are subjected to inconveniences which do not exist elsewhere, this must be remedied by holding two sessions a day instead of one. It is better that every body should suffe; m-convenience, than that a practice should be continued which is capable of abuse, or at least of being the ground of uneasiness and jealousy.

New trial granted.  