A petition for a rehearing was then filed and the cause was re-argued.

Upon the re-argument of the matter decided in our former rescript we see-no occasion to modify our decision, and as an additional reason for .denying the. petition we are of the opinion that the court cannot be required to receive a verdict until the special issues submitted to the juiy in accordance with the *529 provisions of the Judiciary Act, cap. 23, § 7, 1 have all been found.

The court sees no occasion to pass upon the question whether mandamus may properly issue as prayed.

It appears from the affidavits filed that on the return of the jury into court, the foreman was asked by the clerk if they had agreed on a verdict; that thereupon a paper from the foreman was handed to the clerk which read as follows: “We, the juiy, agree that the defendant alienated the affections of the plaintiff’s wife from him, and we assess the damages at $1,000.” This paper, however, was not read to the jury by the clerk, nor were they asked whether it Was their verdict, nor was it signed by the jury or by the foreman. It. does not appear, therefore, that it was assented to by the juiy as its finding, and the jury having been subsequently discharged from further consideration of the case, there is no way npw by which the assent of the jury can be obtained; and, therefore, it cannot be entered on the record as their verdict. The trial, having thus resulted, must be regarded as a mistrial, and, consequently, the case must stand for another trial.

Petition denied and dismissed.