Evidence, admitted upon the undertaking of counsel to make it competent, and withdrawn with the consent of the court, is not a cause for a new trial unless the jury were prejudiced by it. Whether the jury were prejudiced by it is a question of fact to be determined at the trial term.
SMITH, J.
Evidence which proves to have been improperly admitted may be stricken out, under proper instructions to the jury; and it is a question of fact, to be determined at the trial term, when this may be done. Judge of Probate v. Stone, 44 N.H. 593, 607; Zollar v. Janvrin, 47 N.H. 324, 326; Harris v. Holmes, 30 Vt. 352. In his knowledge of the trial, the presiding justice has better means of deciding the question of fact than others can have who were not at the trial. Fuller v. Bailey, 58 N.H. 71, 72; Hamaker v. Eberley, 2 Binn. 506, 510. If it appears to him, after verdict, that the jury have been prejudiced by the objectionable evidence, he is warranted in setting the verdict aside.
Case discharged.
STANLEY, J., did not sit: the others concurred.