delivered the opinion of the Court. It is alleged in this case, that the court committed an error in sending back the jury to their chamber, who returned a different verdict from that rendered by them in the first instance. The court were about to rise for the day, as the jury first retired from the bar, and for their convenience, the parties agreed that the jury give their verdict to the clerk, after the adjournment of the eourt. After the rising of the court, the jury gave to the clerk a verdict under their hands and seals, whereby they found for the defendant, the present appellee, that she have a return of the negro slaves, taken under and by virtue of the replevin issued in the cause. At the calling of the court next morning, it was ordered by them, that the jury retire to their chamber to correct their verdict, the same not being recorded by the court. They retired under this order, and found the verdict on which this judgment is entered, for the plaintiff, (the appellant,) as to the mare and colt, mentioned in the writ of replevin; and for the defendant, as to the residue of the goods and chattels mentioned in the said writ of replevin.

What is the legal effect of this proceeding, is the doubt |his court has now to remove.

*34It appears to us that the verdict handed to the clerk, is in the nature of a sealed or privy verdict, and might be varied from in open court, and that no error was committed in ordering the jury to their chamber the next day to correct it. The ruJe is, that a verdict may be varied from by the jury, at any time before it is recorded; and the court, who are best acquainted with their own practice, tell us, that the verdict under consideration had not been recorded by them. It was left with the clerk, for the ease of the jury, and may be compared to a verdict received by a single judge out of court, or to a sealed verdict retained by the foreman of the jury in his pocket, until the next meeting of the court. In neither of which cases is the verdict binding upon the jury, but is liable to be changed and varied from by them in open court. Trials per pais, 309, 310. This is upon the principle that the verdict is not recorded; and it is not seen how it could be recorded in the instance before us, as the oourt were not in session when the verdict was received by the clerk, nor does it appear that the parties, or either of them, were present, if in a legal sense it was possible, for them to be present.

The other objection made by the appellant’s counsel to the verdict, on the second plea found by the jut-y for the defendant, is not sustained. The jury found for her upon the two issues of non cepit, and property, and non constat, that they were not warranted in so finding. However contradictory those Issues seem to be, they are made up from pleas that are not deemed incompatible; and while they are admitted to be pleaded together, every result from their use ought surely to have the countenance and'support of the court.

JUDGMENT AFITRMED.