Devereux v. Champion Cotton Press Co.

• Decision Date: 10 January 1881
• Docket Number: CASE No. 958.
• Citation: 14 S.C. 396
• Parties: DEVEREUX v. CHAMPION COTTON PRESS COMPANY.
• Court: South Carolina Supreme Court

14 S.C. 396

DEVEREUX

v.CHAMPION COTTON PRESS COMPANY.

CASE No. 958.

Supreme Court of South Carolina.

Jan. 10th, 1881.

Where a jury, before dispersing, assented to a verdict, which was duly written and sealed up, but upon the re-assembling of court and before publication the foreman openly stated that some of the jurors now dissented from their finding- Held, that such verdict should not have been received. Perry v. Mays, 2 Bail. 354, recognized and approved.

Before PRESSLEY, J., Charleston, February, 1880.

Action by John H. Devereux against the Champion Cotton Press Company for injury to his realty by reason of the unlawful use by the defendant of its property near that of plaintiff. The jury found a verdict for the plaintiff for $1000, under the circumstances stated in the opinion of the court. The defendant moved for a new trial upon three grounds: (1) that the verdict was without evidence to sustain it; (2) that the damages were excessive; and (3) that the verdict was not the verdict of the jury, but only of a majority of them. The presiding judge overruled the motion. Defendant appealed upon the third ground taken in support of his motion for a new trial.

Mr. C. H. Simonton, for appellant.

Mr. L. De B. McCrady, contra.

The opinion of the court was delivered by

MCIVER, A. J.

In this case, at the trial below, “the jury had been authorized to seal up their verdict and render it next morning. Then, before rendering it, the foreman *** stated that the jury had agreed on a verdict, which had been sealed as directed, and that, subsequently, in the morning, some of them had notified him that they did not assent to the said verdict.” The Circuit judge, upon being informed that there was no dissent until after the jury had separated for the night, received the verdict and directed the clerk to publish and record it. A motion for a new trial was made on various grounds, one of which was “because the verdict was not the verdict of the jury, but only of a majority of them,” which motion was refused, and the defendant now appeals upon the ground above stated. So that the precise question made by this appeal is, whether a sealed verdict, which was assented to by all of the jurors at the time it was sealed and before the jury were permitted to separate, can be afterwards received by the court, published and recorded, in face of the statement made by the foreman as the organ of the jury, that some of the jurors did not then assent to the verdict. This question is, we think, conclusively settled by the case of Perry v. Mays, 2 Bail. 354. In that case, the jury not having agreed when the court was about to adjourn for the day, leave was granted them, with the consent of the parties, to separate after they had agreed and to deliver their verdict next morning. At the opening of the court on the next day the foreman delivered a sealed verdict, when one of the jurors stated that “it was not his verdict, but he had agreed not to oppose it, in order to get out.” The verdict was received and recorded, and this was made the basis of the last ground of appeal. Harper, J., in delivering the opinion of the court, said: “No doubt a new trial must be granted on the last ground taken for that purpose. It is said by Blackstone, (3 Com. 377), ‘a privy verdict is where the judge hath left or adjourned the court, and the jury being agreed, in order to be delivered from their confinement, obtain leave to give their verdict privily out of court; which verdict is of no force unless afterwards affirmed by a public verdict given openly in court, wherein the jury may, if they please, vary from their privy verdict; so that the privy verdict is, indeed, a mere nullity, and yet it is a dangerous practice, allowing time to tamper with the jury, and, therefore, very...