The opinion of the court was delivered by

There seems to be no question whatever in this case. Any paper, which should go to the jury without objections, although it should appear, that it might have misled the jury, could hardly form the basis of a writ of error, the court having made no decision in regard to it. But if the paper had gone into the case by direction of the court, and at a subsequent stage of the trial the court became convinced that the paper ought not to be considered in determining the case, and should so instruct the jury, it would effectually cure the error. Courts, at the present day, consider jurors rational beings, and capable of following plain instructions, and willing to do so, and do not suppose, that one word, more or less, even of incompetent testimony, is incapable of being so expunged from the case, as not to influence the event. In the case of Smith v. Richardson, Willes 20, 23, there is a dictum, which would seem to justify the conclusion, that the jury were not to be trusted in such a case, — although it shows that eminent judges had ventured sometimes to admit doubtful evidence de bene esse. The following are the words of the reporter; “ It was said, that a very great judge had frequently admitted evidence, if doubtful whether it were evidence, or not, and said he would afterwards tell the jury, how far they ought to have regard to it; but this, though the practice of a very great man, was thought to be of very dangerous consequence.” I, for one, should be content to follow the practice of the judge, so severely questioned ; and it is certain no practice is more universal, in the English courts, in jury trials, than to take the testimony down in course, and strike out such as is incompetent, when that shall fully appear. If that could not be done, it would *565leave the court often in a very ludicrous dilemma; they could neither go forward, nor retrace their steps. They would virtually have committed an unpardonable transgression, which neither repentance, or restitution, could atone for. We do not apprehend, there is any necessity of making even the law of jury trials so inflexible. But this question, even, is not fairly raised in the present case, — the paper having, in the first instance, gone to the jury, without objection.

Judgment affirmed.