
    Fish and Another v. Smith.
    
      Saturday, June 25.
    APPEAL from the Tipton Court of Common Pleas.
    
      J. A. Leíais and J. Green, for the appellants.
   Perkins, J.

Suit for fraud and breach of warranty in the sale of a horse. Answer in denial. Jury trial. Judgment for the defendant.

There is but one point in the case. After the jury had retired to their room to consult of their verdict, they sent to the judge information that they desired instruction upon a point. Instead of calling the jury back to the Courtroom, and instructing them in the presence of the parties, the judge, without, it is admitted, intending any wrong, went into their room and gave them instructions in the absence of the parties, and without their consent. This is a practice not to be tolerated. It is an error for which the case must be reversed. How, under our practice, where exceptions must be taken at the time an act is done, can the parties avail themselves of this right, if the judge, at his pleasure, can instruct the jury in private? This is sufficient reason to condemn the practice, aside from its intrinsic impropriety. Hall v. The State, 8 Ind. R. 439, and note 2.

Per Curiam.

The judgment is reversed with costs. Cause remanded for another trial.  