Brown v. Cowell — 12 Johns. 384

Majority

p. 384

Brown against Cowell.

Headnote

a- witness may examined by the jury, after they with tiieelicon’ ties!°f the p4r"

quIerstionmtos0per w1tTOspUandt0am wiiiihdisb!mmeed(byytimjÜal men’twin ncitlfe account.

IN ERROR, on certiorari to a justice’s court.

After the iury, in the court below, had retired, they sent and J J 1 . ’ ’ J ?-ecIuested *e&ve examine Briggs ^ one of the witnesses. The justice applied to the parties, to know if they would consent to being examined, to which they agreed, and the justice went with the witness into the room where the jury were ; whether the parties went with them or not, did not appear, One of the jurors asked the, witness, if Kinney, who had testified on the same trial, had not sworn false on some former trial; to which the witness immediately answered in the affirmative, The jus

p. 385

tice then immediately told the jury that the question was impro"per. The jury then inquired as to the general character of Kinney, for truth and veracity, and the witness answered that it was not good; upon which the justice and witness retired., and the jury found a verdict for the plaintiff.

This judgment must be affirmed. The admission of the witness to be re-examined privately, by the jury, would have been improper had not the parties consented to it. .And although the question, put by the juror, was improper, the answer was given before the justice could correct it, and he did. every thing that he could do, by telling the jury that the evidence was improper. Besides, the parties, having consented to the examination, ought not now to be permitted to object to what took place upon such examination,

Judgment affirmed.