The verdict must be set aside in this case, because it was irregularly taken, and does not correctly conform to what the jury, as appears by the memorandum presented by the foreman, intended to find. There is no ground for holding this memorandum to be of itself a special verdict. It is not usual in criminal cases to return a written verdict. But it is. very proper for the foreman, who is to speak for others as well as himself, for greater certainty in expressing their finding truly, to make a memorandum, and, on the return of the jury into court, to hand in such memorandum. If such memorandum expresses more or less than the exact issues, or contains words of comment, explanation or restriction, it is proper and usual for the court, by an explanatory conference with the jury, and in the hearing of all of them, to state what the court understands to be the true finding of the jury, and with their assent to enter it in correct legal form, so that, when it is affirmed as thus put into form, it shall truly and exactly express the unanimous finding of the jury, and be according to the literal import of the original Latin term “ veredictum,” a declaration of the truth.

If upon such explanation and conference it turns out that the jury, or any of them, intended to annex any restriction or qualification to a general verdict, then it is clear that they have found more or less than the issues to which they were bound to answer, and the jury in such case, with proper instructions, should be directed to consider further, and come, if practicable, to an agreement upon the proper issues as presented. But if, on such conference, it appears that, in point of fact, the jury have agreed upon the necessary facts, and have only mistaken the form in which their verdict should be entered, and they are informed what is the proper form, in which their unanimous finding should be properly expressed, and the jury, upon the question being put, unanimously affirm it, it may be safely and properly entered of record as thus put into due form. And it would be a mere abuse of language to say that such a proceeding is an arbitrary and unwarrantable alteration of the verdict of a jury. In such case this court would be very cautious in calling in question the respect always due to the verdict of a jury.

*367But in the present case it appears to the court that the verdict, as entered, was not warranted by the finding expressed in the memorandum, and no explanation was made to the jury, and no question put to them as to what they intended to find. The jury do not seem to have noticed the artificial arrangement of the verdict into counts, but rather designated their return by the nature of the charges. They say they “do not find the defendant guilty as a common seller”; this was in legal effect “ not guilty ” on the first count. They go on, “ but do find him guilty on two single sales.” But they make no allusion to counts. There were three counts — the second, third and fourth —• each for a single sale. Finding two single sales left it wholly doubtful whether it was upon the second and third, or second and fourth, or third and fourth. This memorandum furnished no authority for entering a verdict of “ guilty ” on the second and third counts, as was done, nor were the jury inquired of whether such was their intent. Exceptions sustained.