Bunn v. Croul — 10 Johns. 239

Majority

p. 241

Bunn against Croul.

NEWYORK,

May, 1813.

Headnote

lnfoan tke after "the ^ (ieHb’ requested the themj certahi evidence had been given, awl the rmieous, anil the judgment was reversed $ it not appear» ing that it was done with the consent or int the presence of the parties.

IN ERROR, on certiorari, from a justice’s court. Croul brought an action on the case against Bunn, before the justice, He declared for damages done by the defendant to a certain trunk and clothes. The defendant moved for a nonsuit, on the ground that the writ was in cose, and the declaration in trespass ; but the justice overruled the motion. The defendant then pleaded the general issue. The evidence was not set forth in the return. The justice stated that while the jury were deliberating on their ver- ... , , . . . „ , , dict, he was requested by the jury to inform them whether a particular point of evidence had been given, stating it to him. The justice informed the jury that it had been given, and mentioned the witnesses who had testified to the fact. A verdict was found for the plaintiff on which the justice gave judgment.

It cannot fairly be inferred, from the return, that the explanation given by the justice to the ji^ry, after they had retired to make up their verdict, was by the consent, or in the presence, of the parties; if it was not, the allowance of such a practice would be dangerous to the rights of parties. The justice’s recollection might not be accurate as to what the witnesses had said; and for that reason the testimony might be misstated, when, if the parties were present, or the witnesses again called "to repeat their testimony, any mistake might be corrected. The judgment must be reversed.

Judgment reversed.