The court are of opinion, that these exceptions cannot be sustained. The first two findings of the jury were uicomplete; and they were properly sent out to find a verdict that should pass upon the whole case presented to them. The practice of sending out a jury, when they return a finding that is absurd or defective, has existed more than four hundred years. We find in the year book, 11 H. 4, 2, pl. 3, that where, in a writ of conspiracy against two, the jury found one guilty and the other not guilty, they were told by the judge that their finding was contradictory; that if one was not guilty, the other could not be guilty, in a charge of conspiracy, and that they had better reconsider their verdictwhereupon they were taken back, and afterwards they returned and found both guilty. See also 2 Hawk. c. 47, § 11; Bac. Ab. Verdict, G; Regina v. Ballivos, 1 P. W. 212; 6 Dane Ab. 235; The State v. Arrington, 3 Murph. 571; Walter v. Junkins, 16 S. & R. 415; Goodwin v. Appleton, 22 Maine, 453.
It is objected by the plaintiff, that the jury could not be sent out in this case,- because they had separated, after then first finding, before they came into court. But the cases cited by him do not support this objection; and the contrary appears from the cases of Edelen v. Thompson, 2 Har. & Gill, 31, Wolfran v. Eyster, 7 Watts, 38, and Sutliff v. Gilbert, 8 Ohio, 409. So where a jury separated after having agreed, and afterwards came into court with a sealed verdict, which one of the jurors refused to affirm, the court sent them out, and they agreed on a verdict, which the court refused to set aside. Bunn v. Hoyt, 3 Johns. 255. Douglass v. Tousey, 2 Wend. 352.
Exceptions overruled.