— The judge put the cause to the jury on the true ground. He left the evidence to them, and clearly, distinctly, and correctly stated to them the law; and the jury have found for the defendants. Under such circumstances, E should not think it correct to disturb the verdict, although the judge who tried the cause, was not satisfied with it. But I think that the situation of the juryman calls for consideration; he was sick, not able to deliberate, or assist at the deliberations of the remainder of the jurymen; it was, in fact, a trial by eleven jurymen. On this ground, I think there must be a new trial.

— Thought that there ought to be a new trial on both grounds.

— When a question of fact has been fairly and fully put to a jury, and the jury have deliberately decided it, although the judge before whom the cause was tried, is not satisfied with 1he verdict; yet I do not think that alone a sufficient cause for a new trial, unless in very clear, palpable cases. But Í do not think there has been such a deliberate consideration of this cause as the spirit of our law calls for. The jury were out all night; a juryman in the morning, is taken violently ill; after which, the foreman informed the court that they could not agree; the sick juryman was evidently unable to deliberate, and then a verdict is found, and that verdict not satisfactory to the judge. All these circumstances combined, demand a further examination of this cause.

Rule for a new trial, allowed.*