Whether a verdict has or has not been recorded, and whether the jury have or have not separated, the case may be recommitted to them for the correction of a mistake in the verdict. Whether justice requires a recommittal, and whether injustice results from it, are questions of fact to be determined at the trial term.
DOE, C. J.
In some jurisdictions a recorded verdict cannot be amended by the jury after their separation; but in this state a different practice prevails. The error in this case could be corrected, whether the verdict had or had not been recorded, and whether the jury had or had not separated. Their separation increased the danger of wrong being done by their amendment of the verdict. The increased danger raised the question whether justice required a recommittal of the case for reconsideration, and when, on reconsideration, the verdict was amended, there was a question whether justice required a judgment on the amended verdict. Both questions were matters of fact to be determined at the trial term. Nims v. Bigelow, 44 N.H. 376; Dalrymple v. Williams, 63 N.Y. 361. The court could inquire of the jury touching their verdict, and the grounds upon which they proceeded, for the purpose of ascertaining whether the case had been properly tried. Walker v. Sawyer, 13 N.H. 191, 196; Smith v. Powers, 15 N.H. 546, 563; Johnson v. Haverhill, 35 N.H. 74, 87. The inquiry could be made after the jury, being discharged from the case, had separated. Clough v. Clough, 26 N.H. 24. The reason for making the inquiry did not suspend either the power of inquiry, or the power of recommitment. For an immaterial reason, a proper inquiry was made; upon proper answers, the case was properly recommitted; and by the correction of an undoubted and natural mistake, justice was legally done. The recording of an erroneous verdict, award, or judgment does not necessarily render all its errors incurable; and the separation of jurors, referees, or other judges, does not necessarily disable them to undo the injustice of such a mistake as the jury fell into in this case.
Exception overruled.
CLARK, J., did not sit: BLODGETT, J., dissented: the others concurred.