Purnell v. . Purnell

Asi-ie, J. There is no force in either of the exceptions taken by the plaintiff. After finding on the second issue that the defendant acted in self-defence, the issue as to damages was immaterial, and the finding upon that issue was also immaterial. But we do not regard the response of the jury, to that issue, as assessing damages to the plaintiff. They had found by their response to the second issue that the defendant was justifiable in what he had done, and consequently was not liable in any dam *44 ages to the plaintiff; and the response to the third issue, in form, seems to be rather an expression of a wish, or a recommendation by the jury, that His Honor, if consistent with their finding) would give judgment for the plaintiff for the amount he had expended. There is nothing in the other exception. The sending out of witnesses has never been recognized in this state as a matter of right belonging to the parties to an action, though it is the usual practice when requested. But even after such an order has been made, it is no cause for a new trial that a witness, who had not gone out, but remained, heard the other witnesses, and is after-wards permitted by the judge to be examined. State v. Sparrow, 3 Mur., 487. It is matter of discretion with the court and not reviewable. 1 Green), on Ev., §§431 and 432, and notes. No error. Affirmed.