This case was committed to the jury in the afternoon, and at the time of adjournment they had not agreed. The officer in charge of the jury was directed by the court, that, if they had not agreed at twelve o’clock in the night to let them separate. At that hour the foreman informed the officer in response to an inquiry by him, that the jury had not, and could not agree. Thereupon the officer opened the door and told them to separate, and they did so. The next morning the jury assembled in their room and agreed upon a verdict for the defendant, reported it in court and it was affirmed. The facts about the disagreement and discharge of the jury were not known to the court or the plaintiff’s counsel till after the verdict was received and affirmed. When the facts became known.to the plaintiff’s counsel a motion was made addressed to the presiding justice to set the verdict aside, but the justice, being of opinion that the motion was one on which he had no power to act, so ruled, and exception was taken. A new motion was then filed addressed to this court, and upon that motion the case is considered.
The court at nisi prim, had the power to be exercised in its discretion, to direct the discharge of the jury when satisfied that they could not agree. That power was properly exercised in this case; and when the jury separated by order of the court they no longer had charge of the case, and had no power over it. The jury had no more power to assemble in their room and further consider the ease, than if it had never been committed to them. The case is unlike those cited by the counsel for the defendant, where there was irregular and unauthorized misconduct on the part of the jury, which was, in no way injurious to the losing party; but one where the jury no longer had power to act. Commonwealth v. Townsend, 5 Allen, 216; Weston v. Gilmore, 63 Maine, 493.
Mxceptions overruled.
Motion sustained.
Verdict set aside.
Peters, C. J., Walton, Danforth, Virgin and Foster, JJ., concurred.