The opinion
Morton, C. J.
We are of opinion that there was an irregularity in the rendering and recording of the verdict in this case which entitles the defendants against whom it was rendered to a new trial.
The case was committed to the jury in the afternoon of June 4, 1883, with instructions that they might seal up their verdict and separate. On the morning of June 5, the jury rendered a verdict finding separate damages against each defendant for different and largely varying sums. The verdict demonstrates that the jury conducted their deliberations and rendered the verdict under a misapprehension of the law as laid down to them in the charge of the presiding justice. Under such circumstances, the safe and proper course was for the court again to instruct them as to the law, and request them to deliberate further upon the case. It was the right of the defendants to have the jury consider their case with a full knowledge of the law applicable to it, and with opportunity for full freedom of discussion. There is danger that this right may have been impaired by the course pursued by the court, in interrogating the jury and preparing a verdict for them in open court, where no discussion or comparison of views was practicable. This is not a case of the correction by direction of the court of a mere formal error in a verdict. Here the verdict as rendered, and the verdict as amended and recorded, differ in substance and in legal effect. It was competent for the court to send the jury out again with proper instructions, and this was the only course which would fairly preserve all the rights of all parties. Brown v. Dean, 123 Mass. 254 . Pritchard v. Hennessey, 1 Gray, 294 .
*424 The case of Fuller v. Chamberlain, 11 Met. 503 , upon which the plaintiff relies, without noticing the other points of difference, merely decides that an irregularity in taking a verdict is not a ground for a motion in arrest of judgment.
Exceptions sustained.