
    Benjamin Winslow versus Simeon Draper.
    ín an action on the case, for falsely representing H to be “ worthy of credit,” knowing he was not, the defendant pleaded the general issue. The jury retired on Saturday afternoon and separated in about three hours, the judge having authorized them so to do, when they had made up their verdict; and on the following Monday morning, they rendered in a verdict,<6 that the defendant did not say H was perfectly good, knowing it to he false and with intention to defraud.” The judge informed them what the issue was, directing them to retire again ; which they did, and returned with a similar verdict, adding thereto, “ and they thereupon find the defendant not guilty.” Held, that the first verdict was defective in form only, and therefore that the separation of the jury and the return of the sec and verdict were not grounds for a new trial.
    Action on the case for deceit in falsely representing one Hall “as worthy of credit, the defendant knowing him to be otherwise.” The defendant pleaded the general issue, which was joined.
    The jury retired at about one o’clock, for the purpose of making up their verdict, and separated at about four, in the afternoon of Saturday, the judge having authorized them to separate, when they should have agreed upon and sealed up their verdict. On the following Monday morning, they appeared.in court and rendered in a verdict, “ that the defendant did not say that Hall was perfectly good, knowing it to be false and with intention to defraud the plaintiff.” The verdict was ohjected to as not finding the issue one way or the other, and the Court directed them to retire again, informing them that the issue was, whether the defendant was or was not guilty. The jury then retired and came in again with a similar verdict, with the addition of these words, “ and they thereupon find that he is not guilty in manner and form,” &c.
    The plaintiff moved for a new trial foi the following reasons : — 1. Because the jury separated, before they found a verdict on the issue submitted to them. 2. Because, after they had separated and a whole day had intervened, they were sent out again to agree upon a verdict. 3. Because the second verdict was not a finding upon the issue joined.
    
      March Wlh
    
    cited Sargent v. Roberts, 1 Pick. 337; Rex v. Woodfall, 5 Burr. 2661; Bishop v. Kaye, 3 Barn. & Ald. 605; Gerrish v. Train, 3 Pick. 124; Kerr v. Hawthorne, 4 Yeates, 295; Grousillat v. Ball, 3 Yeates, 386; Davies v. Peirce, 2 T. R. 125 and note; Wells v. Parker, 1 T. R. 40 and 783; Hooper v. Shepherd, 2 Str. 1089; Oliver v. Springfield Presbyterian Church, 5 Cowen, 283; Lester v. Stanley, 3 Day, 287; People v. Olcutt, 2 Johns. Cas. 301; Little v. Larrabee, 2 Greenl. 37 ; Hargr. Co. Lit. 155 b, note 276.
    
      W. Sullivan, for the plaintiff,
    
      C. G. Loring and W. H. Gardiner, for the defendant,
    cited Com. Dig. Pleader, S 3; Co. Lit. 227 b; Blackley v. Sheldon, 7 Johns. R. 32; Burrill v. Phillips, 1 Gallison, 363; Smith v. Thompson, 1 Cowen, 221, note; The King v. Woolf, 1 Chilly’s R. 401 and note; The State v. Babcock, 1 Connect. R. 401 and note; Clark v. Cole, 1 Pennington, 278; Horton v. Horton, 2 Cowen, 589; Bunn v. Hoyt, 3 Johns. R. 254; People v. Douglass, 4 Cowen, 26; Com. Dig. Pleader, S 18, 19, 26; Co. Lit. 227 a; Foster v. Jackson, Hob. 54; Burper v. Baker, Cro. Eliz. 854; Hodges v. Raymond, 9 Mass. R. 316; Metcalf’s Yelv. 78, note; Bac. Abr. Verdict, O; Commonwealth v. Judd, 2 Mass. R. 329; Porter v. Rummery, 10 Mass. R. 64; Ropps v. Barker, 4 Pick. 239; Co. Lit. 114 b.
    
    
      April Cth
    
   Per Curiam.

It seems to be settled that a mere separation of the jury, of itself, does not vitiate a verdict; but in the cases where this principle was established, the separation was probably for a short time, and we should not be willing to adopt it, where the separation should be for so long a time as from Saturday to Monday. But here the jury agreed on a verdict, in substance, before separating, and the object of the Court in sending them out again was merely to put it into form. It is said, however, that the first verdict amounted to nothing. This is not a fair construction of it. The jury intended to negative the averments in .the declaration ; and the verdict might have been put into form in court, without sending them out. The first verdict is substantially the same as the amended verdict.

Motion for new trial overruled 
      
       Even in a capital case. Stale v. Prescott, 6 N. Hamp. R. 387.
     