Page:Harvard Law Review Volume 12.djvu/365

NOTES. 345 would be no defence. Then the drawee would have been entitled to be subrogated to his rights as cestui que trust against the converter. Here, however, the drawer had no right of action against the drawee. Can, then, the doctrine di subrogation be applied ? It may be objected that it cannot ; that in omer to be subrogated to the right of the drawer against the converter, the drawee must first have paid the equivalent of that claim to the drawer. Yet it is clear that this drawer cannot retain his claim as cestui que trust. He cannot both be enriched by the amount paid by the drawee and at the same time refuse to give the latter allowance for the amount on account. Therefore the term " subrogation " seems .to have an appropriate application here in a broader sense, namely, that when one person has an equitable right to which another is entitled, that other should have the right on grounds of natural justice. The resnlt is reached, as in the principal case, by courts of law allowing a direct action to recover back the money paid ; yet, on principle, the right of the drawee is an equitable one to be placed in the position of cestui que trtist, so that he may then sue the wrongdoer. Sealed Verdicts. — Even in the early development of the trial by jury, the idea existed that the jury should be left absolutely to themselves in their final consideration and decision. To insure this privacy the old oath administered to the bailiff read, "you shall keep this jury without meat, drink, fire, or candle, you shall suffer none to speak to them, neither shall you speak to them yourself." In that older and most summary justice the work of the juries was less arduous, yet for their ease was introduced the device of the privy verdict. When a court adjourned while the jury was still out the jury might, on reaching an agreement, reduce their verdict to writing, seal it, leave it with an appointed officer, eat and separate, to reassemble at the opening of the court to give a final oral verdict. This expedient, though mentioned as early as Rolle's Abridgement, p. 712, was rare, and never used in trials of felony. In the modern practice, particularly in this country, it has been far more common. In almost all the States, in all cases, civil or criminal, except capital, either by statute, by agreement of the parties, or sometimes by order of the court without agreement, the jury may separate after a privy, or sealed, verdict as it is called here and meet again to affirm it at the next court-day. The important question is as to the legal effect of that sealed verdict. In the old law it was clearly a mere nullity. When the jury came to- gether again, the beaten party, or the accused, had a right to ask the decision of each juror separately, poll them, as it is called, just as in the ordinary case, and their answers, if unanimous, were the final verdict. They might well dissent from or change their privy verdict, — it was sim- ply a device for their comfort. Saunders v. Freeman, i Plowd. 209. But it is not clear whether the effect of the modern sealed verdict is the same. The question was squarely raised in the recent case of The People v. McLaughry, Chicago Law Journal, Dec. 2, 1898. There no verdict was given in open court and a sentence was passed on the sealed verdict. It was argued that the prisoner by consenting to a sealed verdict waived his right to the oral one, that at least the error merely gave ground for a new trial ; but the Court, following the old law strictly, held that the sealed verdict amounted to nothing, that the sentence under it was abso-