
    Ingersoll v. Town of Lansing.
    
      (Supreme Court, General Term, Fourth Department.
    
    January 29, 1889.)
    1. Trial—Reception or Verdict.
    After submitting a case to a jury on March 16th, the court stated that when It adjourned for the day it would adjourn until the 20th, and that, if the jury had not agreed before adjournment, by consent of parties the verdict could be reported to-the clerk. Before the jury agreed the judge left for home. The clerk and crier that evening adjourned court until 10 A. m. of the 17th, when the jury reported a verdict for plaintiff, which the clerk entered, and, having discharged the jury, adjourned the court until the 20th. Meld that, the court not having provided for a discharge of the jury during the absence of the judge unless they agreed, the verdict must be set aside.
    2. Same—Discharge oe Jury.
    The power to determine when a jury shall be discharged on disagreement, cannot-be delegated to a clerk and crier of the court, and no one but the judge has the right to receive its verdict.
    Appeal from circuit court, Tompkins county.
    Argued before Eollett, Kennedy, and Martin, JJ.
    
      Newman & MoLachlan, for appellant. Simeon Smith, for respondent.
   Eollett, J.

Appeal from a judgment entered on a verdict, and from an order denying a motion for a new trial made on the minutes and heard in this court on a case which contains all of the evidence. The record shows that this case was submitted to the jury in the afternoon of Eriday, March 16, 1888. The justice presiding informed the jury that when the court adjourned for the day it would be adjourned until the following Tuesday, March 20th, at 1.0 A. m., and by the consent of the attorneys for both parties he directed the jury, unless they agreed before the court adjourned for the day, to report their verdict to the clerk, who was directed to receive and enter it. Later in the day, and before the jury agreed, the justice left for his home, some 50 miles distant. At 7 o’clock p. m. of March 16th the clerk and crier entered the court-room, and, the jury not reporting, the crier proclaimed ail adjournment of the court until Saturday, March 17th, at 9:80 A. M., at which time they returned to the court-room, and the crier, we assume, proclaimed that the court was open, and thereupon the jury came into court with an oral verdict for the plaintiff, assessing his damages at $75. The clerk entered the verdict and discharged the jury, and thereupon the crier proclaimed an adjournment until Tuesday, March 20th, at 10 A. m., at which time the justice returned, and the court was opened and thereafter, held. All of these adjournments were entered in the minutes by the clerk. Later in the term the attorneys for the defendant moved to set aside the verdict, and for a new trial, upon the ground that the jurors were required to agree or remain together from March 16th to March 20th, and that it was undue coercion. The motion was denied. The court made no provision for discharging the jury during the absence of the presiding justice from the county, unless they agreed, which compelled them to bring in a verdict, or remain in confinement for four days, without the aid, protection, or even presence of the court. This direction was coercive and improper, and the trial court erred in refusing to set aside the verdict. Green v. Telfair, 11 How. Pr. 260; Pierce v. Pierce, 38 Mich. 412. We do not intimate that circumstances may not exist justifying the detention of a jury for more than four days, provided there is a court ready to aid them in their deliberations, or to relieve them from confinement in case it becomes apparent that further deliberation will be unavailing, or further confinement unreasonably oppressive to some or all of the jurors. The duties of the presiding justice, after a jury has retired, in facilitating their deliberations by having read parts of the evidence, by further instructions, by repeating or explaining instructions already given, and in determining when they shall be discharged without an agreement, and in receiving the verdict, are as clearly judicial and as important as the duties performed before the case is submitted, and the discharge of them can neither be abandoned, nor all nor any of them delegated to the clerk and crier. There cannot be a circuit court without the personal presence of a justice of the supreme court, and no authority except the circuit court has power to control the jury or receive its verdict. The judgment and order are reversed, and a new trial is granted, with costs to abide the event.

Kennedy, J., concurred.

Martin, J.

1 concur in the result, but I am not prepared to hold that the parties to an action may not, under any circumstances, stipulate that the verdict may be received and entered by the clerk in the absence of the judge, and be bound by such stipulation. I regard the decision of that question at this time as unnecessary. Judgment and order reversed upon errors of law, and a new trial granted, with costs to abide the event.  