No evidence was offered to substantiate the facts alleged in the motion, and non constat that the court found them to be as alleged. Even if we assume that the court directed the officer to discharge the jury at eleven o’clock P. M., if they had not then agreed, and the officer did not discharge them, but the jury continued their deliberations, and arrived at a verdict some hours later, which was afterwards returned into and accepted by the court, the failure on the part of the officer to observe the directions of the court did not avoid the verdict.

If he had discharged them and they had afterwards agreed on a verdict, the case would have come within Commonwealth v. Townsend, 5 Allen, 216. But the jury were not discharged, and the court had a right to adopt the action of the officer which it did by accepting the verdict, and it thus gave to the officer’s action the same validity which it would have had if done pursuant to instructions originally given. See Hopkins v. Sawyer, 84 Maine, 321. Exceptions overruled.