#### John Crabtree, Plaintiff in Error, v. William Hagenbaugh, Defendant in Error.

ERROR TO EDGAR.

It is not proper for the judge before whom a case is tried, to go to the jury-room while they are deliberating. All the proceedings in a case should be open, notorious and in the presence of the parties, so that if they are dissatisfied with them, they may take exception in the manner provided by law.

This case was tried before Harlan, Judge. The facts are sufficiently stated in the opinion.

A. Green, for Plaintiff in Error.

Constable, for Defendant in Error.

Caton, C. J.

In this case, after the jury had retired to consider of their verdict, they sent for the judge, who repaired to their room, and there had intercourse with them on the subject of the instructions- which had been given them. This was manifestly done with no improper motive on the part of the judge, and it may be that it had no influence with them in the formation of their verdict. Indeed, the most the judge did, was to decline to explain the meaning of the written instructions which had been given to the jury. We choose to assume, that what was said and done by the judge, while in the jury room, did not influence the jury in their deliberations, for we think that, independent of its effect upon the jury, the judgment should be reversed, for the simple reason that such an interview did take place. If, in this case, no harm was actually done, and for that reason the verdict is allowed to stand, we open the door to the inquiry in all such cases, as to whether the party has been injured by the interview. Such an inquiry should not be tolerated. The policy of the law requires, that all the proceedings of the court should be open and notorious, and in the presence of the party, so that if he is not satisfied with it, he may take exceptions to it, in the mode pointed out by the law, and not be put to extraneous proof to show that an error has been committed in a secret proceeding, and, in fact, out of court.

The judgment must be reversed and the cause remanded.

Judgment reversed.