Englehard v. Sutton , 8 Miss. 99 ( 1843 )

Mr. Justice Turner,

after stating the case:

The question is as to the propriety and legality of the last piece of evidence. It is objected to on the ground that the judgment was between different parties; that the present plaintiffs were neither parties nor privies, and could not be affected thereby: and of this opinion is this court. It does not appear that Englehard and Stein-berg had any notice of such a proceeding; and there is no better established principle than this: that a man cannot be affected by a suit and judgment to which he was neither party nor privy, and of which he had no notice.

The defendants’ counsel contend, that although the court permitted their evidence to go to the jury, yet, that the court charged the jury in substance that it did not affect the rights of the plaintiff. This will not do, however. It is the duty of the court to rule out, and not to suffer to go to the jury, that which is not legal evidence in the cause. The charge to the jury, that they may disregard the illegal evidence so admitted, will not obviate the legal objection to its admissibility. The exception appears by the record to have been taken in time.

The judgment must be reversed, and cause remanded for a new trial.