
    Andrew Whitney versus Charles Whitman, Jun.
    Where upon a trial a material paper, not read in evidence, had been given to the jury by mistake, a new trial was granted without costs.
    In this action, after the parties were heard, and the judge had summed up the evidence, and given the jury the necessary direction in matters of law, when the papers were delivered to the jury, a material paper, not read in evidence, was delivered to them by mistake, which was not discovered until the jury had returned into Court, and had delivered their verdict.
    The party against whom the verdict was found, now moved the "C«>urt for a new trial for this cause.
    
      On examining the paper, it appeared to the Court to furnish material evidence in favor of the party prevailing ; but he moved the Court to examine some of the jurors, to prove that they were not influenced by it in finding their verdict. The other party had also summoned other jurors to prove the influence.
    
      F. Blake, for the plaintiff.
    
      Bigelow, for the defendant.
   The Court refused to examine any of the jurors, and observed that the Court must be governed by the tendency of the paper apparent from the face of it; that it was not pretended that the jury had not read it, and it would be difficult for jurors, where, as in this case, there was much evidence of different kinds, clearly to decide in what manner their minds were influenced in forming their verdict. As it was received by the jury among other written evidence, and read by them, it must be presumed that they considered it as evidence, and gave due weight to it. [ * 406 ] * The verdict was therefore set aside, and a new trial granted, but without costs, as the delivery of the paper to the jury appeared to have been accidental, and not owing to the oblique conduct of either party . 
      
      
        Hicks vs. Drury, 5 Pick. 296
     