Rogers v. Moulthrop

13 Wend. 274

• Court: New York Supreme Court
• Decided: January 15, 1835
• Status: Published

Opinion

By the Court,

Sutherland, J.

What the point of law was which the jury wished information upon, or what instructions were given them by means of the reference to the treatise of Mr. Co wen, does not appear. We are to presume, .the contrary not appearing, that they were not misdirected. The case then stands precisely as though the jury had come into court and asked for further instructions, and the justice had sent for the parties and their counsel, for the purpose of being present and hearing the additional charge which he was about to deliver, and one of the parties had refused to come into court, and the justice proceeded without him. There was no irregularity in the proceeding, or abuse of discretion on the part of the justice. In courts of record this is a very common proceeding; and where, as in this case, the parties were or had an opportunity of being present, and of hearing what passed between the justice and the jury, I see no objection to it in a justice’s court. In Taylor v. Betsford, 13 Johns. R. 487, the justice went into the jury room and deliberated with them privately and apart from the parties, and without their consent. It did not appear that they had been requested or would have been permitted to accompany him. This was held irregular. So also in Benson & Ferguson v. Clark, 1 Cowen, 288, the justice went into the room with the jury, without the consent of the parties ; they were not requested to be present. The court say the justice had no right to have any intercourse with the jury without the consent of the parties. This must mean private intercourse in the absence of the parties; not that intercourse which takes place publicly, where the jury come into court and request additional instructions upon a point of law. Those cases are clearly distinguishable from this, as is also the case of Bunn v. Croul, 10 Johns. R. 230.

Judgment affirmed.