Wilson

Heydenfeldt, J., concurred.

In this case, the .jury, for the purpose of arriving at a verdict, agreed that each member should set down a sum according to his own judgment; that the aggregate should be divided by twelve, and that the quotient should be returned as the verdict; which was done.

The rule in such cases has been held to be, that if such means is adopted merely to arrive at a proper result for the purpose of determining what the Verdict should be, without being bound thereby, and afterwards the jury agree upon such sum as their verdict, that it will be good. But on. the other hand, if the jury resort to this or any other similar means of arriving at a verdict, and agree to be bound by the contingent result, without reserving to themselves the right to dissent *46 therefrom, such proceeding will be improper. (4th Johnson, 487; 1st Cowen, 238.) Such verdicts are regarded in the same light by the Courts as gambling verdict, and will invariably be set aside, just as if the jury had thrown dice, or resorted to any species of gaming, to determine the amount.

It is urged in this ease that there was no sufficient affidavit of the fact, to warrant the Court in setting aside…