This case is somewhat like that of Houston v. Potts, 65 N.C. 41, differing, however, in some important particulars. *Page 440
1. In Houston v. Potts, we infer that the jury had dispersed and gone beyond the call of the Court, while in this case they were in the court room when his Honor returned after a short recess.
2. In that case there was a question of fact as to whether the contract was made in North or South Carolina, and whether the interest should be six or seven percent., while in this case no such issue was presented, the law fixing and giving interest as soon as the contract was ascertained. Without relying upon the authority of Butts v. Drake, 2 Haywood, 262, we are of opinion that his Honor had the power when he returned into Court, after a short absence, and found the members of the jury still in the court room, to call them into the box and tell them that the verdict they had tendered was not accepted by the Court, and that they must retire and make up a proper verdict.
While this course would not be admissible in criminal cases, we think a larger power may be safely allowed in civil actions, and that the Judge who presides and sees all the incidents of the trial is the proper person to determine whether the jury has returned a verdict or only tendered one, and that he may, in view of all the circumstances, discharge them or call them together again, in the exercise of a sound discretion.
There is nothing in the instructions of his Honor of which the defendants can complain.
Judgment affirmed. Let this be certified, c.
PER CURIAM. Judgment affirmed. *Page 441