Taylor v. Betsford — 13 Johns. 487

Majority

p. 487

Taylor against Betsford.

Headnote

not5 deliberate ef^m It“'tjeu3r’yi 7nitha unitss wuh’the parties* be i cd from but must be made to appear affirmatively, otherwise the judgment wm be reversed.

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

When the jury in the court below retired to deliberate upon their verdict, the justice, at the request of the jury, went into the room with them, to answer certain questions proposed to him by the jury, but was not accompanied by the parties, nor had obtained the consent of the plaintiff in error, who, however, knéw that the justice was going, and did not object to it. A ,, , . . , i i r i i verdict and mdgment were given in the court below tor the de- - , J ° ® Cendant m error.

The only error necessary to be noticed in this case is, that the justice went into the room with the jury, at their request, privately and apart from the parties, to answer certain questions proposed to him by the jury. This we have repeatedly held t'o be erroneous, unless done with the consent of the parties. Whether the information given by the justice were material, or had any influence upon the verdict of the jury, is a matter which we will not inquire into. In the present case, it cannot fairly be inferred that the plaintiff in error gave his consent,unless from the circumstance that he knew that the justice was going in to the jury, and did not object. But this is not enough. The practice is dangerous and improper, and ought to be guarded against; and the consent ought riot to be matter of inference, as it may be liable to great abuse : it ought to appear affirmatively that it was done with the consent of parties. If they are present, it may be easily ascertained whether they will give it or not, and then the door will be shut against abuse, by reason of misunderstanding, or wrong conclusions drawn from circumstances ; and, upon this ground, the judgment must be reversed.

Judgment reversed.