¶1The opinion of the court was delivered by
¶2In this case I shall content myself with giving the decision of the court as I understand it, without pretending to explain the assize of nuisance, or direct the mode of proceeding in it.
¶3In Barnett v. Ihrie, 17 Serg. & Rawle, 212, it is said, “ The recognitors are not jurors; they are not summoned for a single term, but to attend the cause from its inception to its termination; and this they must necessarily do as they are to have a view before the return of the writ.” — Agreeably to this, which is also the doctrine of Livezey v. Gorgas, 1 Binn. 252, no new recognitors can be brought in; the only process to summon them is the original writ which summons the defendant. The majority of the court are of opinion that the assize cannot be afforced by adding other jurors in any case, much less can it be done by suffering those who were sworn and could not agree, to separate for a year, and then collect them and add others till twelve could be found of one opinion.
¶4The cases which speak of collecting the recognitors or so many of them as can be found, are not cases in which they were sworn and could not agree, but cases of a certificate, which was a new writ commanding a second examination of a case decided on, or a writ of redisseisin, &c. &c.
¶5It has been compared to a writ of inquiry of damages, or of condemnation of lands levied on by & fieri facias-, it is in all respects different from both. They are proceedings in a suit in which judgment has been obtained; this is a proceeding, instituting a complaint, bringing in the party, and asking a trial and judgment.
¶6It more resembles our proceeding by landlords'to recover possession against tenants holding over.' The justices and juries in such cases, do sometimes adjourn during the progress of the proceedings; but if it is contended that after the jury have heard all the evidence offered, have retired to make their inquest, and have returned to the justices that they cannot agree, and for that reason are permitted to separate, and do separate and go home for weeks, months or a year, they can be called together on the old process, and the matter again submitted to them, and be decided by them, I utterly deny it. There has beén no such usage, though there may have been a single such case. Such a practice has never received the sanction of any court; it is against all principle, and shocks the common sense of right and justice. Nor can the sheriff in such a proceeding summon another jury; that first summoned is part of the machinery without which the rest *420cannot move. So have this court before decided in the assize of nuisance. • The decision of the court, in not permitting the plaintiff to proceed with his case, is right.
¶7it not we suppose in permitting the jury who could not agree, to separate. That part of the common law which once said a jury could be starved until they agreed, or until one died, and thus a verdict became impossible, is too old for use ; it could not be safely put in use by a judge now ; he might become entangled in the machinery.
¶8If a party will resort to a mode of proceeding, subject to inconveniences, he must take the consequence, even if that should be that he end where he began.