#### In re Will of MARY A. SUGG.

(Filed 7 December, 1927.)

1. Jury — Polling Jurors — Courts — Constitutional Daw — Constitutional Right.

Upon the coming in of the verdict in a civil action, either party to the action has the constitutional right to have the jury polled before accepting the verdict as a unanimous one. Const, of N. C., Art. I, sec. 19.

2. Same — Verdict Takem,by Clerk — Agreement of Counsel — Judgments— Courts — Clerks of Court — Terms of Court.

Where in a civil action upon consent of the parties the trial judge instructs the clerk to take the verdict in his absence, and later the clerk receives the verdict, apparently unanimous, and upon request of a party to poll, one of the jurors answers the issue, “Yes, but — ,” and upon again being questioned by the clerk answers “Yes” without qualifying it: Heló,, the subsequent setting aside of the verdict by the judge upon his finding from the affidavit of the juror, that his answer was in the negative, and he had otherwise answered to avoid a mistrial, as the other eleven jurors were of an opposite opinion, is not erroneous. As to the effect of an agreement of the parties that the judgment should thus be taken after the expiration of the term of court, quere? the matter not being presented by the exceptions on this appeal.

3. Same — Wills—Caveat—Parties.

While generally there are no adversary parties in proceedings to caveat a will, there are certain exceptions applying to particular instances, among them being the right of the parties to have the jury polled before accepting.the verdict.

*6394. Same — Waiver.

Where a party to an action requests the polling of the jury before accepting the verdict, it is the duty of the judge to accede, and the waiver of a party of his right to have the judge receive the verdict, in not requiring his presence, does not include the waiver of his right to have the jury polled, and when the verdict is thus received by the clerk, the objecting party has the right to have the clerk poll the jury upon his request.

5. Verdict — Agreement of Parties — Consent—Clerks of Court.

The agreement of the parties to the litigation that the clerk may take the verdict of the jury, acquiesced in by the judge, is valid.

6. Same — Duty of Clerk.

Where the verdict of the jury, apparently unanimous, is received by the clerk in the absence of the judge under an agreement of the parties, and a juror, upon being polled intimates that his mind had not accepted it, and further states that he would explain if he thought he could do so in the absence of the judge, it is the duty of the clerk to correctly inform the juror upon the matter, and when he,has failed to do so, the subsequent setting aside of the verdict by the judge upon a finding, sustained by the evidence, is not error of law.

7. Verdict — Jurors—Polling Jurors — Unanimous Verdict — Verdict Set Aside — Impeachment—Affidavit of Juror.

Where the judge has set aside a verdict of the jury, received by the clerk, upon an affidavit of a juror to the effect that he was under a misapprehension as to his right to disagree with the answer given, and there is no exception to the introduction of the affidavit: HeW, the affidavit so considered was not in impeachment of the verdict, but an explanation of the juror’s error therein.

Appeal by propounders from order of Finley, J., dated 15 April, 1927. From MeckueNbuhg.

Affirmed.

This is a proceeding for probate of paper-writing as the last will and testament of Mary A. Sugg.

The issues were submitted to a jury at March Term, 1927, of the Superior Court of Mecklenburg County. Answers to these issues were received by the clerk, as the verdict, in the absence of the judge pursuant to agreement of counsel. Caveators thereafter moved that said answers be set aside and that a new trial be ordered. Pursuant to agreement of counsel theretofore made, this motion was heard after the expiration of the March Term.

From order setting aside the answers to the issues, and ordering a new trial, as a matter of law, and not in the exercise of discretion, pro-pounders appealed to the Supreme Court.

Mason & Mason, P. G. Whitlock and ThtíAdeus A. Adams for pro-pounders.

Gansler & Gansler and Redd & Small for caveators.

*640ConNOr, J.

This proceeding was called for trial during tbe last week of the March. Term, 1927, of the Superior Court of Mecklenburg County at which Judge Finley presided. After introduction of evidence by both propounders and caveators, argument of counsel and the charge of the court, the issues were submitted to the jury about 10 o’clock, on Friday night, 18 March, 1927.

At 12 o’clock on Saturday morning the jury had not returned a verdict; they were still deliberating upon the issues submitted to them the night before. The judge thereupon intimated to counsel that he desired to go to his home at Wilkesboro to spend the week-end, and that in order to do so, he must leave Charlotte at 2 o’clock p.m. In deference to this intimation, it was agreed by counsel for both pro-pounders and caveators, that the judge should leave the court, and that in his absence the clerk should take the verdict. It was further agreed 'that motions and appeal entries could be made either within or without the term, and that judgment should be signed by the judge thereafter. Pursuant to this agreement, which was made known to the judge, he instructed the clerk as follows:

“That if the jury did not agree before, to let them deliberate until about 4 o’clock, and for the clerk, about that time to call upon them and inquire what progress they were making, and if they reported progress, to let them remain and deliberate as much longer as the clerk in his judgment should think best, but if they reported that they were making no progress, and that it was not possible for them to agree, for him to withdraw a juror, make a mistrial and discharge the jury for the term, that day being the end of the term, but if they did agree, for the clerk to take the verdict, in the absence of the court.”

This instruction to the clerk was given by the judge in the presence of counsel and with their consent. The judge thereafter left the court, and at 2 o’clock p.m. left Mecklenburg County for his home at Wilkes-boro.

Pursuant to his instructions, the clerk called upon the jurors, in the jury room, about 4 o’clock p.m., and upon being informed by them that they were making progress in their deliberations, and would probably agree.upon a verdict in a short time, he left them. Shortly before 5 o’clock p.m. the jurors came into the court room and announced that they were ready to return their verdict. The clerk said, “Gentlemen-of the jury, have you agreed upon your verdict?” The foreman replied, “We have.” Whereupon the clerk said, “So say you all?” The foreman and several of the jurors thereupon nodded assent. The foreman handed to the clerk the issues, with answers favorable to the pro-pounders.

*641Counsel for caveators thereupon demanded that tbe jury be polled; counsel for propounders objected, on tbe ground tbat under tbe agreement pursuant to wbicb tbe clerk was authorized to take tbe verdict in tbe absence of tbe judge, tbe clerk bad no right to poll tbe jury. Notwithstanding this objection, tbe clerk proceeded to poll tbe jury, as demanded by counsel for caveators. To this tbe propounders excepted.

When tbe name of the juror, J. E. Cunningham, wbicb appeared first on tbe list of jurors, was called, tbe clerk asked him, “Is this your verdict?” He replied, “Yes, but- — After hesitating for a short time, tbe juror said, “Well, I have something to say concerning my decision, but I guess I can’t say anything because tbe judge is not here.” Tbe clerk repeated bis question to tbe juror, “Is this your verdict?” Tbe juror answered, “Yes.”

' Tbe poll of tbe jurors was continued, and each of tbe other jurors, in response to tbe clerk’s question, replied “Yes.” The clerk then discharged tbe jury and recorded tbe answers to tbe issues as tbe verdict of tbe jury.

Immediately after tbe jury was discharged, tbe juror Cunningham, upon being interrogated by a reporter for a local newspaper, who was present at tbe time, as to what statement be wished to make to tlie court, said, “Well, I did not want to vote tbe way I did, but I bad to, as they (tbe other jurors) were all against me. I thought, and still think, tbat tbe will was secured by improper influence, but a mistrial is a great expense to tbe county.”

In addition to tbe foregoing facts, wbicb tbe judge found upon tbe bearing of caveator’s motion to set aside tbe answers to tbe issues, as recorded by tbe clerk, be further found from tbe affidavit of tbe juror Cunningham tbat if tbe judge bad been present when tbe jurors were polled, be would have stated to tbe judge tbat be was still of tbe opinion tbat Mrs. Sugg did not have a good mind, and tbat she bad been unduly influenced by Mrs. Fayssoux in making her will, but tbat if with this statement before tbe court, it was agreeable to tbe judge for tbe juror to vote to uphold tbe will in spite of tbat opinion, be was willing to do so, in order to give a unanimous verdict.

Upon bis findings of fact, as herein set out, tbe judge was of opinion tbat tbe juror Cunningham did not unqualifiedly assent to tbe verdict as and when rendered in open court, and thereupon, as a matter of law, allowed tbe motion of counsel for caveators tbat tbe verdict be set aside and a new' trial ordered.

Tbe question, whether either party to civil actions, tried in tbe courts of this State, has tbe right to have tbe jurors polled before a verdict tendered by them is accepted by tbe court, as tbe -verdict in tbe action, was first presented for decision by this Court in Smith v. PaulJ 133 *642 N. C., 66. Walker, Jwriting tbe opinion for tbe Court in that case, cites S. v. Young, 77 N. C., 498, in^ which it bad been beld tbat in a criminal action, botb tbe defendant and tbe solicitor for tbe State have tbe right to demand tbat tbe jury be polled before its verdict is accepted, in order tbat it may be ascertained wbetber or not sucb verdict is unanimous. It is said in tbe opinion in tbe latter case tbat tbe right of tbe judge to poll tbe jury is immemorial, and bad never been questioned, so far as tbe Court was informed. Upon an examination of tbe principles upon which tbat case was decided, this Court beld tbat they were applicable to a decision of tbe question then under consideration. It was thereupon beld tbat either party to a civil action is entitled to bave tbe jury polled. In Culbreth v. Borden Mfg. Co., 189 N. C., 208, Smith v. Paul, supra, is cited 'as determinative of this question. It was there beld tbat tbe losing party in a civil action may demand a polling of tbe jury upon tbe return of tbe verdict, as a matter of right. Const., Art. I, sec. 19. Tbe fact tbat this is a proceeding for probate in solemn form of a paper-writing as a last will and testament, and not strictly speaking a civil action, to which there are adverse parties, does not affect tbe right of either tbe propounder or tbe caveator to bave tbe jury polled, upon demand, made in apt time. It has been beld by this Court tbat in a proceeding of this kind, botb propounders and caveators are parties, for certain purposes. In re Will of Brown, ante, 583; In re Mann, 192 N. C., 248. Each is entitled as a matter of right to bave tbe issues which are determinative of tbe proceeding answered by a jury, consisting of twelve jurors. Tbe issues so answered constitute a verdict, which has been defined as tbe unanimous decision made by a jury and returned to tbe court. Sitterson v. Sitterson, 191 N. C., 319. This is a substantial right, of which neither can be deprived. Tbe right to poll tbe jurors is recognized, in order tbat it may be ascertained wbetber or not tbe verdict as tendered is tbe unanimous decision of tbe jurors. If it is found by sucb poll tbat one juror does not then assent to tbe verdict as tendered, sucb verdict cannot be accepted, for it is not as a matter of law tbe unanimous decision of tbe jury. Owens v. R. R., 123 N. C., 123.

Upon demand of either party to an action, civil or criminal, or to a proceeding in which an issue has been submitted to a jury, tbat tbe jurors be polled, it is tbe duty of tbe judge to cause tbe poll to be made. Tbe poll is usually made, under tbe direction of tbe judge, and in bis presence, by tbe clerk; when tbe parties bave agreed tbat tbe verdict may be taken by tbe clerk in tbe absence of tbe judge, it cannot be beld tbat either party by sucb agreement has waived any of bis rights with respect to tbe taking of tbe verdict, except tbe right to bave tbe judge present. ¥e therefore bold tbat upon tbe facts found by tbe judge, and *643set out upon tbis record, caveators bad not, by tbeir agreement that tbe clerk might take tbe verdict, in tbe absence of tbe judge, waived tbeir right to have tbe jury polled, upon demand in apt time. Upon such demand, it was tbe duty of tbe clerk to poll tbe jury, and propounded exception to bis action in that respect is not sustained. It has been expressly held in tbis State that by agreement of counsel for parties to a civil action, tbe clerk can represent tbe judge, and in bis absence take tbe verdict of tbe jury. Barger v. Alley, 167 N. C., 362; Ferrell v. Hales, 119 N. C., 199.

It is apparent from tbe facts found by tbe judge that tbe juror Cunningham did not assent to tbe verdict as accepted by tbe clerk. He qualified bis answer in response to tbe poll by tbe statement to tbe clerk that be wished to say something, but could not do so because of the-absence of tbe judge. He should have been instructed by tbe clerk that notwithstanding tbe absence of tbe judge, be could and should make any statement be desired with respect to bis answer to tbe question addressed to him by tbe clerk. If be bad been thus instructed, be would have said that be did not assent to tbe answers to tbe issues. Upon tbis statement by tbe juror, tbe clerk should not and would not have accepted tbe verdict then tendered by tbe foreman of tbe jury, nor would be have discharged tbe jury at that time, without ordering a mistrial as be bad been instructed by tbe judge to do, upon bis finding that tbe jurors could not agree.

Tbe affidavit of tbe juror, from which tbe judge found what be would have” said bad tbe judge been present, when tbe jurors were polled, was not offered to impeach tbe verdict, but as explanatory of tbe juror’s answer to tbe clerk’s question, before tbe verdict was accepted by him. There is no exception in tbe record to tbis affidavit, or to any of tbe findings of fact, upon which tbe order was made.

Upon tbe facts found by tbe judge and fully set out in tbe record, propounders’ assignment of error, based upon tbe exception to tbe order, is not sustained.

We do not consider tbe question suggested in tbe argument and discussed in tbe briefs, as to tbe validity of tbe agreement, pursuant to which tbe judge not only left tbe court, but also left tbe county, prior to tbe taking of tbe verdict. Tbis question is not presented on tbe record. As pertinent thereto, however, reference may be bad to tbe words of Clark, C. J., in Barger v. Alley, 167 N. C., 326, as follows:

> “It is not unusual to agree that judgment may be entered in vacation as of tbe term. It is also not unusual to agree that tbe clerk may take tbe verdict in tbe absence of tbe judge. It is rather unusual to agree for tbe clerk to accept a verdict after the judge has left tbe court. It *644is a practice not to be commended. It may lead on occasions to serious inconvenience, for strictly speaking tbe court ends when tbe judge leaves.”

Tbe question as to whether tbe verdict was void because it was received after tbe judge bad left tbe county, and therefore after tbe end of tbe term, is not necessarily presented upon this record for decision. There is no error in tbe judgment upon tbe facts found by tbe judge; we do not affirm tbe judgment upon tbe ground that tbe agreement of counsel that tbe judge should leave tbe court before tbe verdict was rendered, was not sufficient to continue tbe term, in tbe absence of the judge, until tbe verdict was rendered or tbe jury discharged. We affirm tbe judgment upon tbe finding of fact that one of tbe jurors did not assent to tbe verdict tendered by tbe foreman at tbe time same was received by tbe clerk.

Affirmed.