(after stating the facts as above). All the authorities agree that the only verdict is that which the jury announces orally to the court, and is received and recorded as the jury’s finding. Kramer v. Kister, 187 Pa. 227, 40 A. 1008, 44 L. R. A. 432; Section 2635, Thompson on Trials; Hyatt on Trials, § 827; Abbott, Trial Briefs, p. 535. While it was agreed between counsel that the jury, when it agreed upon a verdict, shall cause it to be signed by the foreman, and to be sealed, and return to the court at a stated time the determination, such verdict was not finaL
*234Ia Scott v. Scott, 110 Pa. 387, 2 Atl. 531, the court said that where, on polling the jury, eleven jurors support the tendered verdict and one juror dissents, there is no verdict, and judgment cannot be entered thereon.
The court, in Lawrence v. Stearns, 11 Pick. (Mass.) 501, at 502, said: “If any one juror shall then express his dissent and persist in it, the verdict cannot be recorded.”
The Supreme Court of New York, in Root v. Sherwood, 6 John. 68, 5 Am. Dec. 191, said: “There is no verdict of any force but a public verdict, given openly in court; until it was received and recorded, it was no verdict, and the jury had a right to alter it as they may a private verdict. The previous agreement, that the jury might seal up their verdict did not take away from the parties the right to a public verdict, duly delivered. There being, then, no legal verdict in this ease, a new trial must be awarded.- * * * ”
Is the understanding of the trial judge as to the juror’s answer that it is his verdict, which is likewise the understanding as shown by the affidavits of five or six persons including the foreman of the jury, and upon which understanding the verdict is received and filed and the jurors discharged in the' case, final, if in fact it is immediately made apparent th^t the juror said “No” to the question whether “it is his verdict.”
I am satisfied that the jury could not be legally reconvened after being discharged from the ease. It is likewise fundamental that a juror may not impeach his verdict. At the time of the reception of the verdict, and before discharge in the case, I was fully convinced and understood that Juror Schmidt said it is his verdict, and he did not protest this understanding when the announcement was made, and the verdict ordered filed and the jurors excused; but from the disclosures made immediately after the discharge of the jury I am satisfied that, while Juror Schmidt agreed to the verdict, and all of the jurors understood he so agreed, befoye it was signed by the foreman, I am not now satisfied, however, that he did not dissent from the verdict at the time that the jury was polled.
A “verdict” is not the verdict of a dissenting juror, and such juror would not be es-topped, at the time and under the disclosed circumstances in this case, from stating the fact after the filing of the verdict upon such misunderstanding, unless the passive conduct and acquiescence of the juror estops him. I do not believe, from the circumstances in this case it would have that effect. No request was made by either party that the jurors be returned and directed to further de-: liberate. The jurors having separated after agreeing to the verdict, and thereafter reporting to the court, it is doubtful whether such a request would have borne any fruit-; the objection being of substance and not of form. See Humphries v. Dist. of Col., 174 U. S. 190, 19 S. Ct. 637, 43 L. Ed. 944; Wright v. Wright, 114 Iowa, 748, 87 N. W. 709, 55 L. R. A. 261, and-authorities above cited.
I think the motion for a new trial, upon the ground of the failure -of the jury to agree, must be granted. Upon all other grounds urged it is denied. A formal order may be presented.
Other authorities cited and examined: Clark v. Read, 5 N. J. Law, 560; Henderson v. State, 12 Tex. 531; Moss v. State, 152 Ala. 30, 44 So. 598; Bowen v. Bowen, 74 Ind. 470; Grimes Dry Goods Co. v. Malcolm, 164 U. S. 483, 17 S. Ct. 158, 41 L. Ed. 524; Warner v. R. Co., 52 N. Y. 437, 11 Am. Rep. 724; Rigg v. Cook, 4 Gilm. (Ill.) 336, 46 Am. Dec. 462; Martin v. Morelock, 32 Ill. 485; Stewart v. People, 23 Mich. 63, 9 Am. Rep. 78; Bishop v. Mugler, 33 Kan. 145, 5 P. 756; Rigg v. Bias, 44 Kan. 148, 24 P. 56; Owens v. Southern R. Co., 123 N. C. 183, 31 S. E. 383, 68 Am. St. Rep. 821; Proffatt, Jury Trials, § 449.