The instructions to the jury, were sufficiently favorable to the defendants, and they could not have been misunderstood. The statement of his hesitation about the law, and his reference to a fact which does not appear to have been in dispute, could not have misled them. The law, was very distinctly stated, and after saying, that the court had some hesitation about it, it was repeated in terms that could not fail to be understood. It is not unusual for the judge to let the jury understand, that there may be some doubt about the correctness of some point of the instructions, but that if erroneous there will be an opportunity to correct it, but. that they are to take the law to be as then delivered to them — and to this, we cau see no objection; even if the judge, in his discretion, thinks proper to state the reasons for the doubt.
The defendants’ counsel urges, that this was no.case for exemplary damages. It appears, however, that the controversy was whether the plaintiff was to have the two years old steers or the yearlings. The jury have found, that he was to have the two years old steers, and they might have found this so clearly proved, and the claim of the defendants so unfounded as to indicate bad faith, and give a wilful and malicious character to the acts complained of. If the defendants did not in good faith understand that the bargain was for the yearling steers, but wilfully or wantonly undertook to force them upon the plaintiff they would be liable to exemplary damages, and if they had desired fuller instructions on that point, they should have asked for them. No objections however, appear to have been made to the instructions on that point, and we do not perceive any ground for exception.
The verdict of the jury as first returned, was somewhat ambiguous, and in view of the instructions, that the jury might, if they found the defendants’ acts to be wanton, in addition to vindictive damages, find the full value of the oxen, there was reason to suppose they had not stated explicitly what they intended to find, and we think it was perfectly proper, to send them out again, with the instructions which were given.
Such a course, is well warranted by the long settled practice of the court, and the express authority of Nims v. Bigelow, 44 N. H. 376, and Clough v. Clough, 26 N. H. 24; Chapman v. Coffin, 14 Gray 454.
Had there been any abuse practiced during the separation of the jury, a different question would have arisen, but none is shown or suggested, and as it is the duty of jurors to avoid all communication out of court about the case, until their final verdict is returned and they are discharged, no abuse will be presumed.
The case of Nims v. Bigelow, was much stronger than this, for *497there the jury had separated after they had returned a verdict. We have no doubt then, that it was within the discretion of the judge, to send the jury out again as he did.
The remaining question, is whether the verdict ought to be disturbed, because of the separation of the jurors, after having agreed upon their verdict and sealed it up.
It does not appear, that the parties had agreed, that they might so separate, nor is it stated in the case, that the court so instructed the officer. It does appear however, that the officer understood, that he was directed by the court, to allow them to separate after they had agreed, which was after the adjournment for dinner and the verdict was returned by the jury sealed, on the coming in of the court in the afternoon. There is no appearance or a suggestion of any abuse-beyond the mere fact of separation.
The separation here, seems to' have been under a misapprehension and without any wrongful intent on the part of the officer or the jurors, and we think the verdict should not be disturbed on account of it, unless there were some suspicion of abuse. On the case presented, there is not the slightest reason to suppose, that the defendant was injured by the separation in any way.
It is now a very general, and indeed the universal practice, in this state, to allow the jurors to separate in civil cases, after agreeing upon their verdict, and sealing it up ; and had it been suggested before the jury retired, would doubtless have been assented to by the counsel, and directed by the court.
The practice is very convenient for the court and a great relief to the jurors, and after an experience of many years, it has not been found, that it has been attended with injury to suitors ; therefore an injury to the defendant from the separation in this case, would not be presumed without some proof. The case of Horton v. Horton, 2 Cow. 589, is a direct authority to the point, that a separation of the jury after they had agreed upon a verdict, is no cause for a new trial; although the court remarked, that if there had been the slightest suspicion of abuse to the injury of the party, the verdict would have been set aside. The same doctrine was recognized in Smith v. Thompson, 1 Cow. 221, where two of the jurors left the jury room after they had retired to consider of their verdict, and were gone all night. See note to that case, where the cases are collected. The doctrine was also recognized in Oliver v. Trustees, 6 Cow. 283. These cases are cited by Parker, J. in State v. Prescott, 7 N. H. 291, and also the King v. Kennear & al., 2 Barn. & Ald. 462.
In The People v. Ransom, 7 Wend. 417, the cases are reviewed, and the result stated, to be this: that “any mere informality or mistake of an officer in drawing a jury, or any irregularity or misconduct in the jurors themselves, will not be a sufficient ground for setting aside a verdict, either in a criminal or civil case, when the court arc satisfied, .that the party complaining has not, or could not have sustained any injury from it.”
*498This position is concurred in by the court, in State v. Prescott, before cited, with the qualification, that in a criminal case it should be presumed, that the respondent against whom a verdict was rendered was injured by an improper separation of the jury, unless the contrary was shown beyond a reasonable doubt: See also Nims v. Bigelow, 44 N. H. 376, and cases cited; People v. Douglass, 4 Cow. 26, where it Avas laid down by Savage, C. J., to be perfectly clear that in a civil suit, a separation of the jury without, and even contrary to the direction of the court Avould not of itself warrant the setting aside their verdict. The ancient strictness in this respect, having been much relaxed by the uniform current of modern decisions : See also, Co. Litt. 227 b.
There must, therefore, be
Judgment ón the verdict.