1819. The KING against KINNEAR and Others. ABBOTT C. J. If we entertained any doubt on a question of this sort, which is of so much importance, by reason that the subject-matter of it relates to the trial by jury, I should think it right to pause before we pronounced our judgment. But as we do not entertain any doubt, it is unnecessary to take further time for deliberation. I am of opinion that no sufficient foundation has been laid for the present application. It is grounded on the suggesstion of two facts: first, that the jury dispersed before the verdict was given; and, secondly, that that circumstance was not known to the parties until after the trial was concluded. Now it appears, that the trial which had commenced about ten in the morning, had proceeded till eleven at night, before the evidence for the prosecution closed, it then became a matter of necessity to adjourn. For it would been most injurious to the cause of the defendants, that their case should be heard by a jury. whose minds were exhausted by fatigue. It is true, however, that an adjournment is not of necessity followed by dispersion of the jury, for in many cases they are kept together until the final close of the trial. But I am of opinion, that in the case of a misdemeanour, the dispersion of the jury will not avoid the verdict; and I found my opinion upon the fact, that many instances have occurred of late years, in which such dispersion has been permitted in the case of a misdemeanour; and every such instance proves that it may be lawfully done. It is said, indeed, that that these instances have taken place by consent. The consent of the defendant, however, can make no difference, and ought not to be asked. For it is obvious, that he cannot exercise a free choice in such a case, through through the fear, that if he refuses, it would excite a feeling in the jury adverse to his interests. I am also of opinion, that the consent of the Judge would not make any difference. For if the law requires that the jury shall at all events be kept together until the close of a trial for a misdemeanor, the Judge cannot dispense with it the only difference between a dispersion with or without the consent of the Judge, seems to be this, that in the latter case, the jury may be liable to be punished for a misdemeanor. But though this may be so, still it will not avoid the verdict. It is not in this case surmised, that during the night any attempt was made to practise on the jury. If that had been so, the Court would most undoubtedly have listened to it, and required the fullest investigation. But that is not suggested here. Upon the whole, it seems to me, that in these cases the law has vested a discretion in the Judge, to allow the jury to go to their own homes, during the necessary adjournment in each particular case; and, therefore, that no sufficient ground has been laid for the present application. BAYLEY J. It is no part of this application that the verdict is contrary to the evidence, or that a different result could be expected from a new trial; but it is put on this ground, that the jury separated without the consent of the defendants, who knew nothing of the fact till after the trial. It seems to me, however, that this forms no ground for a new trial. In the course of a trial, it frequently occurs that the Judge is occasionally absent; and some of the jury take advantage of that opportunity to leave the court. Now, if the mere separation for a night is a ground for vacating the verdict, it will be difficult to say why those short occasional separations should not have the 1819. The KING against KINNEAR and Others. 1819. The KING against KINNEAR and Others. the same effect; but it would be a harsh conclusion, that such a separation would avoid a verdict. If, indeed, the jury separate improperly, the Judge may impose a discretionary punishment upon them for their contempt in so doing; and if the case were one where the propriety of the verdict admitted of doubt, it would be very proper for the Court to take into their consideration, as an additional reason for granting a new trial, that the jury had so separated. But I am of opinion, that that circumstance, standing alone, is not sufficient to vacate the verdict. If we are wrong, the parties may bring a writ of error, and assign the separ ation of the jury for error. For these reasons, I am of opinion that there ought to be no rule. HOLROYD J. I do not find any authority in the law which states that the mere separation of the jury in a civil action, or in the case of a misdemeanor, is a ground for vacating the verdict. If that separation has taken place improperly, the jury may be punished for it; or if it be suggested to the Judge at the time, he may, if he thinks it necessary, prevent that separation from taking place. If, in this case, it appeared that the jury had been tampered with, or that this was a verdict against evidence, there would be some ground on which the Court might proceed. Neither of these being suggested, there is no foundation for the present motion; and besides, if this be an objection in point of law, the defendavail themselves of it on a writ of error. ants may BEST J. I am of the same opinion. It is said there has been a mis-trial, on account of the separation of the jury; but I am alarmed at the extent to which that proposition would go. I agree with my Brother Bayley, that that no sound distinction can be taken between a separation for a shorter or a longer time. If, then, it should appear even after an acquittal, that in the course of the trial any of the jury had been absent for a short time, it would, according to the argument, be a mistrial, and the party would be liable to be tried again : that is an alarming consequence. Lord Delamere's case is the only authority that seems to me to bear directly on the point; but the uniform practice of late years must, I think, be considered as overruling that decision. The case in Palmer arose after the jury had been charged; and in the cases cited from trials per pais, undue means were used. The true rule is, that it is left to the discretion of the judge to say whether the jury are to be permitted to separate or not: of course, if in his judgment that separation is likely to be detrimental to the ends of justice, he will not permit it to take place. Upon the whole, I agree with the rest of the Court in the opinion that this rule should be refused. Rule refused. (a) (a) Vide Bro. Abr. Verd. pl. 17. cites 24 Ed. 3. 24., and Bro. Abr. Verd. pl. 19. cites 14 H.7. 29. Vide, also, 15 H. 7. 1. pl. 2. 24 E. 3. 24. a. pl. 10., 2 Hale, 295. edition 1778. Barnes, 441. 1819. The KING against KINNEAR and Others. LAMBE against HEMANS. ASSUMPSIT for the sum of 2187. 19s. 10d., being a moiety of the expense of building a party-wall between the houses of the plaintiff and defendant, under Saturday, The assignee of the lessee of fixed rent, which he con siderably improved, and thereby rendered of greater annual value, is not the owner of the improved rent within the 14 G. 3. c. 78. 14 G. 3. 1819. LAMBE against HEMANS. 14 G. 3. c. 78. Plea, general issue. On the trial at Gurney, by leave, moved to set aside this nonsuit, and to enter a verdict for the plaintiff. The fair interpretation of the statute must be, that a tenant who has a beneficial lease, from which he might make an improved rent, if he pleased, should be considered as the owner of the improved rent; and so it seems to have been laid down by Gibbs C. J., in Stuart v. Smith. (a) The circumstance there relied on was, that he had asked 3007. for his lease; and here the party has a lease which appears to be of much greater value. If this be not so, there will exist cases in which there will be no owner of the improved rent at all, for the owner of the groundrent is not liable, Peck v. Wood. (b) And if the circum (a) 2 Marsh. 436. (b) 5 T. R. 130. stance |