
    JAMES G. PLUNKETT, an Infant, &c., Plaintiff and Respondent, v. WILLIAM K. APPLETON and others, Defendants and Appellants.
    
    I. TRIAL, OONDTJGT Off.
    
    1. IRREGULARITY IN.
    1. How reviewed.
    
      (a) Properly before the trial judge, either on his minutes, or on a case regularly made and settled by him;
    but may,
    under peculiar circumstances, be reviewed before a different judge upon a motion brought on by notice or order to show cause, founded on affidavits.
    
    1. What constitutes irregularity.
    (a) Written communication to the jury from the judge. When the judge in answer to written queries from the jury sends them written answers without apprising the counsel for the respective parties of the contents of the queries or answers, it is an irregularity for which the verdict will he set aside,
    
    UNLESS,
    the counsel expressly consent to such course being pursued.
    (1). Foundation oe the principle. It rests on the broad ground of public policy, irrespective of any question as to whether, any injury resulted therefrom, to the party against whom the verdict was rendered.
    (3). Express consent, what does not constitute.
    
      (a) While a second communication was in the hands of a judge, and before he had answered it (a first one having been received and answered, without tire knowledge of either counsel), the counsel for the defeated party remarked to his opponent, that tho judge appeared to have received a communication from the jury and was writing an answer; to which his opponent replied that either party would have a right to except to such communication as part of the judge’s charge. Therefore neither counsel took any action. Afterwards the judge received a third communication, whereupon, he called counsel to the bench, and after discussion sent word to the jury, that he had no further communication to make to them, but that they might come into court, if they desired. Shortly after, the jury came into court, and without asking for further instructions rendered a verdict. The first two communications were not seen by either counsel, and their precise nature was unknown to the counsel for the defeated party, until after the jury was discharged, and the court adjourned.
    Before Monell, Ch. J., and Sedgwick, J.
    
      Decided, April 3, 1876.
    Held,
    
      express consent was not established.
    
    A motion was made at special term to set aside a verdict rendered herein for defendant, for irregularity in the conduct of the trial.
    The irregularity complained of, consisted in written communications having passed between the jury and the judge, of which the counsel was not apprised.
    The facts suffici nitty appear in the special term opinion.
    At special term an order was made setting aside the verdict, from which the defendant appealed to the general term.
    
      Prickard, Choate, and Smith, Attorneys, and Wm. G. Choate, of counsel for appellants, urged:
    I. Although the communications in this case were irregular, yet the irregularity is not per se ground for setting aside the verdict, merely for the sake of precedent. Whether the verdict should be set aside, depends on whether the plaintiff may have been injured by the irregularity, and whether he has consented to or waived it.
    1. It is conceded to be irregular for the judge to give the jury instructions privately, without the consent of counsel for the parties to the action, either as to the law or the evidence. Most of the cases oi irregular communications between the court and the jury, in the books, are cases where the communication was made by the court, without the knowledge of tne party complaining, and only ascertained by him after the verdict was rendered (Watertown Bk. v. Mix, 51 N. Y. 558; Merrill v. Nary, 10 Allen, 416; State v. Smith, 6 R. S. 33 ; Sargent v. Roberts, 1 Pick. 337). In these cases, therefore, the question of waiver, or what constitutes consent or cures this irregularity did not and could not arise. There can be no question of the propriety of the rule laid down by Lord Tenterden in Burrows v. Union (3 Car. & Payne, 310), where the jury requested thp court to send them Selwiri’s Nisi Prius, but although the counsel for both parties were willing, Lord Tentebden said that for the sake of precedent the jury should come into court and state their question, and receive the law from the court. And the cases of Merrill v. Nary, and State v. Smith, were cases where, without consent of the parties, the court had, at request of the jury, allowed them to take the statutes to inform themselves of the law. These two cases could not have been otherwise decided, because the jury did not receive the law from the court, but were made themselves judges of the law. The dictum in Watertown Bank v. Mix (51 N. Y. 562), that “there ought to be no communication between the judge and the jury after they have gone from ‘the bar to consider on their verdict, in relation to the oral evidence or his instructions to them, unless it take place openly in court, or with the express consent of the parties,” is unobjectionable as a statement of what is the regular and formal mode of conducting a trial. That dictum is by no means an adjudication or decision that in every case where a communication is made tc the jury by the judge, “ not openly in court, and without the express assent of the parties,” a verdict will be necessarily set aside. Nor is it intended as a decision to that effect by the learned court. In that case there was no assent, express or otherwise. The question, therefore, was not before the court whether, without express assent, such irregularity avoids a verdict, or whether such an irregularity having happened, it can be cured or waived and in what manner. Moreover, the court in that case pointed out as the ground of their decision, that the communication made by the judge to the jury, was calculated to injure the party against whom the verdict was rendered. It was a communication on a material point. The commission of appeals, in their opinion point out that although the communication may have been true, yet the defeated party was, or may have been affected injuriously by it in the conclusions the jury may have drawn from it, and that if the question had been asked by the jury in open court, different and further communications might at the suggestion of counsel have been made.
    
      2. This court, in the recent case of O’Brien v. Merchant’s Ins. Co. (38 Sup’r. Ct. 482), held that where a paper went to the jury, which was not put in evidence, and without the knowledge of the defeated party, but which contained matters prejudicial to him, the verdict must be set aside, although it did not appear by what agency the paper got to the jury. And speaking of such an irregular communication, the court say, “It has been held' that when the jury were approached in 
      
      such a manner as might have influenced their verdict, it should be set aside.” This is undoubtedly the rule, and in the absence of the question, whether the parties have given a sufficient assent, or have waived the irregularity, the only question is whether the verdict may have been influenced by the irregular communication. And this court so understands the opinion in Watertown Bk. v. Mix, for it cites that case as authority for the above proposition. The other cases cited by the court are cases where the jury had been secretly approached by the party who had the verdict (Reynolds v. Champlain Trans. Co. 9 How. Pr. 14), or by his witness (Nesmith v. Clinton F. Ins. Co. 8 Abb. Pr. 141), clear cases for the application of the rule. The 'case of O’Brien v. Merchants’ Ins. Co. is therefore authority for the proposition that a contract is not to be set aside merely for the sake of precedent because an irregular communication has been made to the jury, and in such case it will not be set aside unless the defeated party may have’ been injured by the effect of the communication. If this is the rule as in the O’Brien case, where the communication was probably from the party or his witness, most certainly it is the rule where the communication is by the court, and without suspicion of intended wrong. This proposition is abundantly supported by decisions in criminal and capital cases (People v. Hartnury, 8 Abb. Pr. 132; People v. Wilson, Id. 137; People v. Carnal, 1 Park. Cr. Cas. 256; Hackley v. Hastie, 3 Johns. 252). The same doctrine is applied to other irregularities, as for instance the misconduct of the jurors. It has been constantly held that such misconduct is not ground for setting aside the verdict unless it appears that it may have influenced the result (Horton v. Horton, 2 Cow. 589 ; Wilson v. Abraham, 1 Hill, 207; Smith v. Thompson, 1 Cow. 221; Shea v. Lawrence, 1 Allen, 167).
    3. It is clear, therefore, that the fact of an irregular communication does not, per se, afford sufficient ground for setting aside a verdict. Hence there being no fixed policy of the law making irregular communications per se fatal, it follows that such an irregularity may be cured or waived by the act of the party, who after-wards seeks to avoid the verdict.
    II. There was in this case a clear waiver of the irregularity by plaintiff’s counsel.
    1. The circumstances stated in the opposing affidavit as to conversation between counsel while the judge had before him one of the two earlier communications, and as to what took place upon and after the receipt of the third communication are not denied. They are assumed to be true by Judge Sanford, and necessarily so, as nothing was shown to the contrary. The act and conduct on the part of the counsel for plaintiff clearly indicating acquiescence in the irregularity, is a waiver, provided the irregularity be one that can be waived.
    It is obvious there were risks to the plaintiff in his insisting on having the jury called in and instructed on the point in question in open court. It appears that the view of the law taken by the judge on the point in question was unfavorable to him. He, therefore, deliberately let go the opportunity of setting the matter right, took his chance of the verdict as the matter stood, and is concluded by the result.
    5. It will hardly be contested that in the conduct of trials, the ordinary rule is that mere silence with knowledge of an irregularity or error concludes a party. The rule as to the necessity of an objection and exception to evidence, however objectionable it may be, to enable a party to avail himself of the mistake in admitting or receiving it, rests on this principle. So does the very strict rule as to exceptions to any part of the judge’s charge. The object of the exception is to call the attention of the court to the supposed omission or mistake, and give him an opportunity to correct it before it is too late.
    6. But it is claimed that this principle does not apply to the irregularity in question; it, is insisted that silence or even acts denoting acquiescence, short of express assenUto the irregularity, does not conclude a party from objecting to this particular kind of irregularity, on grounds of public policy. It must be conceded that the general rule applies to other irregularities in a jury trial (Green v. Bliss, 12 How. Pr. 428; Allen v. Blunt, 2 Woodb. & M. 148).
    7. This pretended exception to the rule in case of this particular irregularity is .supposed to rest on the authority of Taylor v. Betsford (13 Johns. 487). This case is an undoubted authority for the proposition that a communication from the court to the jury, otherwise than in open court, and in the presence of the parties, and without their consent, is irregular. And to this effect it has been repeatedly cited, with approval, and affirmed. The dictum in Watertown Bank v. Mix (51 N. Y. 558), that the assent to the communication should be express, so far as it rests on this decision, is not well founded or borne out by the authorities. It is a mere dictum because there was in that case no pretense of consent. Taylor v. Betsford (13 Johns. 487), and the earlier case of Bunn v. Croul (10 Johns. 239), show that a practice had grown up in justices’ courts, for the justice, after the jury had retired, to visit the jury in their room and talk with them about the case. This practice very justly seemed to the superior courts dangerous and objectionable, and they show a most commendable zeal in suppressing it. The evident effort of the courts was to discourage and break up the practice. The suggestion of the court in Taylor r. Betsford, that no evidence of acquiescence on the part of a party can cure or waive the irregularity, except a precise and formal consent asked for and explicitly given, if that is the meaning of the suggestion, while well enough as a rule to be administered in dealing with the judgments of justices’ courts by the superior courts, to save themselves trouble and keep these inferior courts straight, clearly went beyond the law, since it would, if literally applied, give a party the opportunity by other acts of clear acquiescence, while avoiding a formal consent, purposely to mislead the court into a belief in his acquiescence, and thereby avoid an unfavorable verdict by aid of his own fraudulent practices. All that the court really held on this point was, that mere silence of a party without objection, and with knowledge that the justice was going in to talk to a jury was not enough to show Ms consent. But even as applied to justices’ courts the rule of Taylor v. Betsford has been materially modified in later decisions, so that it has no application to a case like the present, where there are unequivocal acts of acquiescence, though without a formal consent. In Whitney v. Crim (1 Hill, 61), the jury having retired, the defendant told the justice that the jury wished to see him ; whereupon, both parties being present, and neither objecting, he entered the jury room alone. The jury wished to be discharged ; he told them they must make another effort. The plaintiff had a verdict, and Taylor v. Betsford was relied on as entitling defendant to a new trial. B boss on, J. : “What the defendant, in the court below, said to the justice, respecting the wish of the jury, to see him, amounted to little, if anything, short of an express consent that the justice should go into the jury room, and he ought not now to complain of the act. Taylor v. Betsford is an extreme case, and we ought not to go beyond it. This case is distinguishable from that, and we think the defendant’s objection should not prevail.” In Moody v. Pomeroy (4 Den. 115), [1847], the common pleas having on certiorari reversed a judgment of a justice’s court on the precise facts shown in Taylor v. Betsford, the Supreme Courl affirmed, saying Per Curiam: “The ease of Taylor v. Betsford is directly in point, and although it is an extreme case it seems not to have been overruled.” But in the later case of Hancock v. Salmon (8 Barb. 564), Judge Gridley, giving the opinion of the court, carefully reviews Taylor v. Betsford, and gives a meaning and effect to it wholly consistent with the position taken above. And the court say of the rule in Taylor v. Betsford: “We would not relax the rule that has been wisely adopted. It is a safeguard against abuse ; but while we maintain the rule in its integrity, we must see that it is not made a means of misleading justices and involving innocent parties in the consequences of a reversal of judgments, not on the merits, but for the violation of technical rules.” This case is conclusive that the rule in Taylor v. Betsford, as understood and applied by the courts, is not inconsistent even in trials in justices’ courts, with holding parties to the just consequences of a waiver of the irregularity or to a consent not express, where such waiver or assent not express is shown by satisfactory evidence or appears, as in this case, on admitted facts. And the reference to express assent by the commission of appeals, in Watertown Blk. v. Mix, must be understood with the same qualification, especially as in that case there was no pretense of any consent, and the question of the form and nature of the assent requisite was not before the court.
    8. It is not material on this point of waiver that the plaintiff’s counsel did not in fact know the contents of the judge’s communications. He did. not seek to know. He let them pass, whatever they were, and took his chance of a verdict. Hancock v. Salmon, ut supra, is here exactly in point. ¡Nor is it material that there were two messages passed, although he knew at the time of only one. The material fact known to and acquiesced in by him was that the judge was corresponding with the jury. And afterwards when he saw the third communication, he knew there had been two, and his acts then showed continued acquiescence.
    9. On account of this clear waiver by plaintiff’s counsel, the motion should have been denied, even if the communications were material.
    III. The motion should also have been denied, because on the undisputed facts the communications can not have injured the plaintiff.
    IV. It also appears that there have been already had two long trials, the first resulting in a disagreement ; that it is at least doubtful whether the plaintiff can recover at all on his evidence. These facts furnish a sufficient reason why this motion in this form should be denied, and the question raised here determined upon a case made, as is admitted in the opinion to be the better practice.
    If the plaintiff has made out no case, of what importance are the alleged irregularities ?
    
      Elliott F. Shepard, attorney and of counsel for respondent, urged:
    I. Secret communications on the subject of the action by and between judge and jury, when the latter have retired to deliberate on their verdict, without notice to or consent of the counsel or the parties is illegal and voids a verdict. 1st. It is contrary to the fundamental law. Bill of Rights, § 8. U. S. Constitution, art. 7 (amd’t). 2d. It opens a door to the greatest abuses. If any such communication may be held, then a judge may secretly change his charge, charge on some point before not adverted to, direct a verdict, use his personal influence with the jury for or against either of the parties, bribe or intimidate the jury; and the jury, instead of squaring their verdict to their oaths, may substitute something else in place of their independent discharge of their duty. 31. The parries should not be put to questioning the judge, jurors and officer in charge, or searching the jury room, its tables, floor and spittoons, or to any other exertion out of court, to ascertain whether there has been concealed, indirect, wanton, secret or any other kind of communication or influence brought to bear upon a jury by a judge. 4th. Generally, such exchange of communications would remain unknown to the parties and the injured party not know the cause of his wrong ; in this case, it was discovered by mere accident, and after the fact. 5th. Nor is either party to be put to a new issue, as to whether such secret exchange of communication influenced the verdict. The whole must be above suspicion. 6th. Here, these secret communications did influence their verdict. The facts of the case, without such declarations—the nature and substance of these secret communications —show conclusively that these secret messages did influence their verdict; so the plaintiff was prejudiced without remedy. 7th. Both parties are entitled to be heard on the subject of the charge, and the court is entitled to the benefit of suggestions of counsel—but here both these legitimate conditions of a fair trial were lost.
    II. It has always been ce sured by the courts, and by an intelligent community (Taylor v. Betsford, 13 Johns. 487 ; Moody v. Pomroy, 4 Denio, 115 ; Benson v. Clark, 1 Cowen, 258 ; Bunn v. Croul, 10 Johns, 239 ; Thomas v. Chapman, 45 Barb. 98 ; Sargent v. Roberts, 1 Pick. 337 ; Gholston v. Gholston, 31 Ga. 625 ; Crabtree v. Hagenbagh, 23 Ill. 349 ; Louisiana v. Frisby, 12 La. An. 143 ; Fish v. Smith, 12 Ind. 563; Green v. Tellfair, 11 How. 260 ; Brant v. Fowler, 7 Cow. 562 ; Burrows v. Unions, 5 Carr. & P. 310 ; Morrill v. Nauf, 10 Allen, 416 ; State v. Smith, 6 R. I. 33; Rogers v. Moulthorp, 13 Wend. 274; Tilton v. Beecher (see Abbott's Report); O’Brien v. Merchant’s Fire Ins. Co. 38 N. Y. Superior Ct. 489 ; Watertown Bank v. Mix, 51 N. Y. 558). Were this res novo, this court would make a rule to guard the purity of the jury box, by sustaining the action of both branches of the court below in setting aside this verdict.
    III. The proper practice, which is to move at Special Term to set the verdict aside, has been adopted here (Green v. Tellfair, supra, approved in Caldwell v. N. J. Steamboat Co., 47 N. Y. 299 ; Watertown Bank v. Mix, 51 N. Y. 558).
    IV. The plaintiff neither consented to these clandestine communications, nor waived any objection to them. 1. Consent or waiver were impossible, for nothing was known of these communications until after they had occurred, nor what was their substance until after proceedings, by the respective parties on the trial, were ended. The permission given by the court to counsel to except to the charge, as mentioned in defendant’s counsel’s affidavit, related exclusively to the charge as delivered in court previous to granting such permission. The so-called permission was irregular in itself, for, strictly, the exceptions should be taken before the jury retire, so that the judge shall have the opportunity of modifying or recalling any portion of his charge. Plaintiff’s counsel considered it as a direction to counsel, and conformed to it, by immediately handing to the stenographer his exceptions to the charge, without even reading them to the judge. 2. There is no pretense that plaintiff consented or expressly waived. 3. Defendant did not call upon plaintiff to do either. Plaintiff was not put to any election on either point. 4. No act of the plaintiff or his counsel could annihilate the transaction and its effect. 5. There .was no intention either to consent or to waive. Even a waiver is in the nature of an agreement. There can be neither consent nor waiver without a knowledge of the facts and a consent of the mind. Here neither of these elements were present. 6. Even if the defendant’s counsel had, after the exchange of either the first or second communication, asked the court to call in the jury, and try to correct his own previous error, it would not have affected the plaintiff’s right to relief, nor altered the effect upon the jury of those communications. It is a stronger case than that of improper evidence once admitted, the correction of which by the judge, will not cure its effect. But counsel did not make any such request, nor did the court do it of his own motion. 7. The defendants are estopped, by their course upon first learning of these communications, from claiming that plaintiff either consented or waived.
    
      
       Note. The defendant appealed from the general term order to the court of appeals.
      Plaintiff’s counsel on the argument, in the court of appeals, made the fourth point that the order was not appealable, and cited Williamson v. Montgomery (60 N. Y. 648).
      On June 13, 1876, the court of appeals dismissed the appeal. No opinion was written.
    
   Per Curiam.

The order is affirmed upon the opinion, delivered at Special Term by Judge Sanford, with ten dollars costs, and disbursements to be taxed.

At Special Term.

Sanford, J.

Upon the argument of this motion, 1 was disposed to direct that it be brought on before the judge who tried the cause, upon his minutes of trial, or on a case regularly made and settled by him. In Nesmith v. Clinton Fire Insurance Co. (8 Abb. Pr. 141), this course was suggested-as proper, and the hearing of like motions, before a different judge from the one who tried the cause, was declared to be “ a practice to be discouraged.” But in this case, as in that, the material facts appear not less fully in the affidavits submitted than they would in a case, as they are substantially undisputed. I have, therefore, consented, with the approval of the learned judge before whom the trial was had, though not without embarrassment, to dispose of the motion on the papers presented, and thus save to the parties the expense and delay incident to a further hearing elsewhere. I do so the less reluctantly in that a careful and extended examination of authorities has satisfied me that the question admits of but one solution : and, I may add, that the case above cited is, itself, a precedent for such action.

The cause has been twice tried, the first trial resulting in a disagreement of the jury. Upon the second trial, which commenced on the 10th and was continued until the 13th of January instant, a verdict was rendered for the defendant, which is now sought to be set aside for irregularity.

The action was brought to recover damages for personal injury sustained by the plaintiff, a lad employed by defendants, through their alleged negligence in the faulty construction and management of a lift or elevator, in use at their factory. After the charge of the court had been delivered permission was accorded to the respective parties to take such exceptions thereto, as they might thereafter be advised, and the jury retired to deliberate. The court, thereupon, proceeded with the trial of another case, counsel on both sides remaining in the court room to await the verdict. While engaged in their deliberations, and before a verdict had been agreed upon, the jury addressed to the judge a written communication which was brought in by an officer and handed to him, and to which he responded in writing.

That communication and the response thereto were as follows

Q. “ When Mr. Eckhart notified Mr. Dunn that the elevator was dangerous for the use of boys was Dunn negligent in law in not notifying the Appletons, and were the Appletons thereby made responsible in law?” “ Ans. Appletons were not liable, even though Dunn was notified.”

The attention of counsel does not appear to have been in any way attracted to this correspondence.

A second written communication was subsequently addressed by the jury to the judge, which was in like manner responded to by him as follows :

Q. “If Mr. Dunn "was not a competent superintendent, does that make the Appletous liable?” Ans. “All the evidence was that Dunn and the other servants were competent. I charged that being so, the Appletons were not liable. The jurors must find accord in g to the evidence in the case.”

While such second communication from the jury was in the hands of the judge, and before he had replied thereto, the plaintiff’s counsel, who was sitting near the counsel for defendants, privately remarked to him, that the judge had received some communication from the jury and was writing an answer thereto, and inquired vs hether they ought not to know what it was. To which defendants’ counsel replied that of course either party would have the right to except to such communication as part of the judge’s charge. The judge afterward sent out his answer to the jury, in the presence of counsel, without objection irotn either, and without any attempt, on the part of either, to ascertain wdiat the communications were.

Aiterwards, and when the jury had been out altogether for about three hours, they addressed to the judge a third communication in writing, to the following effect:

Ques. “Does the judge mean by his last communication that the jury are not to consider the competency of Mr. Dunn ? ”

On receiving this inquiry, the judge called counsel on both sides, to the bench, and informed them of its import; whereupon a discussion ensued as to what further communication, if any, should be sent to the jury in answer to the above message from them. This .discussion resulted in the judge’s sending word to the jury that he had no further communication to make to them, but that they might come into court if they desired. Very soon after, the jury came into court, and being interrogated as to whether they had agreed upon a verdict, answered that they had, and thereupon rendered their verdict for defendants.

Counsel for the defendants insists that the instructions contained in these communications were in no respect at variance with the charge as originally delivered, and that during the discussion above referred to, the plaintiff’s counsel made no objection to the judge’s having communicated with the jury as aforesaid. It appears, however, from the moving affidavit on the part of the plaintiff, that the two communications were not seen by, and that their precise nature was unknown to plaintiff’s counsel, until after the discharge of the jury and the adjournment of the court.

• Counsel for defendants now stipulates that exception may be. taken to the said "written instructions, as a part of the charge, and it will be assumed, for the purposes of the motion, as contended by him, that the rules of law, laid down in the said communications as applicable to this case had been on the trial fully and freely discussed and determined by the court as the law of the case, and had been clearly expressed in the charge, as originally delivered.

The course pursued by the learned judge with respect to the final communication received by him from the jury was in accordance with the well settled » and established usage and practice of the common law, as administered in England and in this State. Had it been adopted in the first instance, the proceedings would not have been open to adverse criticism.

In Burrows v. Unwin (3 Carr. & P. 310), which, like the present, was an action on the case for negligence, the jury, after their retirement, sent in a message desiring to have a certain law book sent to them from the library of the court. Lord Tenderden, C. J., asked the counsel, on both sides, if they objected, and they answered that they did not. His lordship, however, observed: “The regular way is for the jury to come into court and state their question and receive the law from the court, and for the sake of precedent, that course should be adopted now.”

The rule thus recognized and from which, on grounds of public policy, his lordship was unwilling to depart, has been so far relaxed by our own courts, as to admit of written instructions being sent by the court to the jury, at their request, if both parties expressly consent; but I have been unable to discover any reported case in which, without such consent, communications of the kind have been sanctioned or countenanced. It has even been held "that such consent must be affirmatively proved and may not be inferred. “ The history of the law,” as was well observed in the case of ‘O’Brien v. Merchants’ Fire Ins. Co. (38 N. Y. Superior Ct. R. 482), ‘1 discloses a struggle for centuries, to prevent juries from being approached by improper communications;” and I think it as essential to the important and effective administration of justice that the opinions and instructions of the court should be openly and publicly imparted, so far as litigants are concerned, as that the deliberations of the jury should be conducted with secrecy and in seclusion. Repeated infractions of this salutary rule in exceptional instances, varied in accordance with the exigencies of each particular case, would gradually fritter it away, and ultimately effect its complete abrogation. It should be permanent a’ d immutable. If trial by jury is to “remain inviolate forever,” every safeguard to its sanctity must be jealously upheld.

In Sergeant v. Roberts (1 Pick. 337), a verdict was set aside, under analogous circumstances, notwithstanding that the course pursued by the court had the sanction of an old local practice. That practice was condemned as “ dangerous to the rights of parties and opposed to the spirit of the common law, which demands that everything given to a jury, in relation to a case before them, should be given in open court, in the presence of all interested or authorized,, for criticism, for suggestion, to guard agai'nst injustice and error, and to afford the means of remedying or correcting them.” Like views were expressed, and a Jike result ensued in Merrill v. Nary (10 Allen, 416), and in Slate v. Smith (6 R. I. 33).

The decisions of our own courts are undeviatingly to the same effect, and mainly upon the ground that “ such a practice would be dangerous ” (Bunn v. Croul, 10 Johns. 248; Taylor v. Betsford, 13 Id. 487).

In the case last cited, the court refused to inquire whether the information given by-the justice was material or had any influence upon the jury. The practice was condemned as dangerous and improper, and one that “ ought to be guarded against ” (see also Rogers v. Moulthrop, 13 Wend. 274; Moody v. Pomeroy, 4 Denio, 115).

The cases of Bunn v. Crowl, and Taylor v. Betsford, were approved in Watertown Bank v. Mix (51 N. Y. 558), where it was said that “ There ought to be no communication between the judge and the jury after they have gone from the bar to consider of their verdict in relation to the oral evidence or his instructions, unless it take place openly in court, or with the express assent of the parties.”

Under this- explicit and authoritative exposition of the law, the verdict must be set a,side, not alone on the ground that the rights of the parties to the particular suit have not been fully protected and preserved, but upon broad grounds of public policy, and because, as was said by this court, in O’Brien v. Merchants Fire Ins. Co., above cited “not to set aside the verdict would establish a precedent which would tend to impair the upright and faithful administration of justice.”

Verdict set aside, and new trial ordered with ten dollars costs of motion, to abide the event, and to be taxed in favor of the successful party, with his costs in the cause.  