
    James V. Taylor vs. Caleb S. Manley.
    Where a case has been submitted to a jury, and they have retired to consider of their verdict, it will be error for the court, without the consent of the parties, to explain, at the request of the jury, a matter of law to them, bearing upon the case, upon which they notified him they had doubts.
    In error, from the circuit court of Monroe county; Hon. Stephen Adams, judge.
    James V. Taylor sued Caleb S. Manley, for the-price of brick work done by the former for the latter: A trial was had, and the jury found for the defendant.
    The bill of exceptions, taken on the overruling a motion for a new trial, states the following facts, viz.: “ After the jury had retired from, the bar, with leave to give and return their verdict to the clerk, and the court had been adjourned until the next morning, the judge returned to the court-house, and without calling the parties in the case, and in the absence of the attorneys, and while the court stood adjourned, the jury returned,, and, after sending for the judge, stated that the jury differed as to the law, and inquired of the court if, where a man made an entire contract, he was compelled to comply with it before he could recover for what he had done 7 ” Upon which the judge stated to the jury, “ that if one man received benefit from another’s labor he was bound to pay for it, although the contract was entire, and not complied with; but in such case the party would be entitled to a deduction of the damages sustained, in consequence of the plaintiff not complying with his contract.” The jury having found for the defendant, the plaintiff prosecuted this writ of error.
    
      J. F. Jack, for plaintiff in error.
    The judgment below ought to be reversed also, because the judge, after the court had adjourned, and in, the absence of the parties and their attorneys, without even having them called, and without being thereto requested by either party, instructed the jury as to the law relative to a special contract, and charged them erroneously, and by his charge mislead the jury, and caused them to find an erroneous verdict. This untimely and uncalled-for exercise of the judicial functions is manifestly irregular, and finds perhaps no parallel in the whole history of courts of judicature. The court was out of session; there was no court. The parties, and their counsel, absent, in consequence of the adjournment. And the judge had then no more legal authority to return to the court-house and charge the jury than had any individual, entirely disconnected with the court. But if such a practice were competent and proper, or even had the court been in session when the charge was delivered, yet it was given in direct violation of the statute of this state, which provides, that no point or principle of law shall be given in charge to the jury, unless one of the parties to the issue, or counsel, shall ask the judge to give such charge. H. & H. 482. The charge was irregularly given, and erroneous, and wholly gratuitous ; and a judgment founded upon such proceedings cannot be good.
    Davis, for defendant in error.
    When a case has been argued by counsel, it is submitted to the court, composed of judge and jury: the jury, to determine the weight of the evidence, and the judge to furnish them information in relation to the law. The powers' of the court cannot be arrested by the attorneys in the cause absenting themselves for any purpose. But in this the counsel for appellant has no cause of complaint; because the charge of the court was directly in favor of his client, and against appellee.
   Mr. Justice Thachee

delivered the opinion of the court.

The bill of exceptions in this case, taken to a motion for a new trial overruled, among other things, shows that, after the jury had retired with the case, for the purpose of forming their .verdict, and, after the court had been adjourned until the sueceeding day, the jury returned into the court-house, and the judge, without the consent of the parties in the action, or their counsel, upon the request of the jury, explained a matter of law to them, bearing upon the case upon which they notified him that they entertained doubts.

The statutes of this state, H. & H. 482, sec. 9, and 493, sec. 53, explain and provide the mode and extent in which a judge is permitted to charge a jury on points or principles of law applicable to a case before them. These provisions are restrictive of the common law powers of judges in this particular, and any substantial deviation from them is good ground of error. The instance in the present case we deem a deviation of this kind.

Judgment reversed, and new trial awarded.  