
    O’Connor v. Guthrie & Jordan.
    1. Instructions in open court. 'Instructions to the jury should always be given in open court.
    
      Appeal from Dubuque City Court.
    
    Saturday, October 6.
    In this case, after the jury had retired to consider of their verdict, the judge, in answer to an inquiry from them in writing, in the same manner sent them, by the bailiff, an instruction, material to the determination thereof. This ivas done without the knowledge of either party. The verdict being for defendants, plaintiff moved for a new trial, assigning for cause, among others, this action of the court. The motion was overruled, and the plaintiff appeals.
    
      Griffith Knight for the appellant,
    relied upon Sargent, et al, v. Roberts, et al, 1 Pick. 337; Cole v. Swan, 4 G. Greene 33.
    
      I£ S. Jennings, for the appellees.
   Wright, J.

That the court erred in the particular complained of, we entertain no doubt. If further instructions are to be given to the jury, though the same in principle, as those previously given, the parties have a right to require that they shall be given in open court, that an opportunity may be afforded to know w’hat they are, except to them if desired, and ask others explanatory if deemed necessary. Indeed, the necessity for adhering to this practice with strictness, is so manifest, that argument in support of it is quite unnecessary. It may at times, it is true, be attended with inconvenience, but better so, than permit a practice so liable to abuse, and so much in conflict with the rights of parties litigant. The following cases, we think, fully sustain this view: Davis v. Fish, 1 G. Greene, 410; Cole v. Swan, 4 Ib. 33; Sargent v. Roberts, 1 Pick. 337.

Other points are made by appellant. As the conclusion above stated reverses the case, however, and as we infer from the record that the verdict was founded upon that portion of the defence not adverted to in the instructions complained of, we need not pass upon them.

Judgment reversed.  