
    Irvine against Cook.
    Improper evidence ought not to be ,-ailowed to be given in the presence of the jury, although they are, after-wards, directed to disregard it.
    IN ERROR, on certiorari to a justice’s court.
    This was an action brought by the defendant in error to recover from the plaintiff in error a balance due to him on the sale of a mare. The defence set up was payment made by the note of one Crawford ; to repel which, the ■plaintiff below offered to prove the insolvency of Crawford, by what one Reuben Smith had said. This testimony was objected to by the defendant below, and the objection was overruled, hut the testimony was not admitted to the jury aá evidence. A verdict was found for the plaintiff below.
   Per Curiam.

The only objection to this return relates to the testimony offered of what Reuben Smith had said as to ■ the insolvency of Crawford. The hearsay evidence of what Smith had said was certainly inadmissible. It was objected to, and the justice says"that he overruled the objection; by this he must mean that he received the evidence; but he says that the testimony was not admitted to the jury as evidence. If the return is to be understood, as we think it must, that, the justice admitted the evidence to be given to himself, but that he did not allow the jury to consider it as "evidence, it was improper. Such a practice would be- dangerous in its consequences, as the evidence is given in the presence and hearing of the jury. This point was decided in Haswell v. Bussing, (10 Johns. Rep. 128.) The court'say that it would lead to great abuse, if a justice were allowed to admit a witness to testify de bene esse, and to say that he afterwards disregarded the evidence. The judgment must, accordingly be reversed.

Judgment reversed.  