#### LANDIS *v.*DAYTON AND BURRIS.

Evidence — bill of exceptions — state of case — polling jury.

Where the ruling out testimony is assigned for error, so much of the evidence must be disclosed in the bill of exceptions, as will present the true state of the case, and the right to introduce the evidence.

The declaration of third persons and of the party offering them, are inadmissible as evidence in the place of facts.

Proof of the settlement of other dealings than those in controversy, isjnadmissible as independent evidence.

A jury in a civil case will not be polled, as a matter of right, though the court will permit them to be polled, if the verdict be delivered under circumstances of suspicion.

Error, to the Common Pleas. The suit in the court below was assumpsit, and on trial upon non assumpsit the plaintiff gave in evidence two receipts for wheat, and offered other evidence to prove the residue of his case. The defendant proved that after the receipt of the wheat into the mill, it (the mill) was rented to one Meley, who, at the request of the plaintiff, and by direction of the defendants, delivered to the plaintiff thirty-eight barrels of flour on account of the wheat. To rebut this, the plaintiff offered to prove that while the mill was occupied by Meley, he delivered several hundred bushels of wheat to be floured, and that he and Meley-had á settlement, at which the plaintiff offered the defendant’s receipts for wheat for credit, but Meley refused to allow them. This was objected and ruled out. The jury returned a verdict for the defendant in writing, and the plaintiff demanded that they should be polled, which the court refused. It is assigned for error, that the court erred in ruling out the evidence offered by the plaintiff, and refusing leave to poll the jury.

*Cushing*and Anthony, for the plaintiff,

cited 6 *John. R.*68; 1 *Stark. Ev.*43; 2 *Stark Ev.*32.

Mason, contra,

7 *John. R.*32; 1 *Ch. Or. L.*635.

Collett, C. J.

The record in this case does not show all the evidence, nor perhaps the true state of the case before the jury, when the evidence was ruled out. It appears that the defendant had proven, in satisfaction of his wheat receipts to the plaintiff, the delivery of flour by the miller. The plaintiff sought to disprove this by showing that he had other dealings with the miller which he settled with him, and then offered the disputed receipts to him for allowance in that settlement, which he refused. This the court below properly rejected — if the flour was delivered for the defendants, it constituted no part of the account then settling, and were properly disallowed. But at any rate, it was only an offer to prove the declarations of the miller and of the plaintiff instead of the facts ©f the transactions, and so were incompetent.

*660As to the refusal to poll the jury, we do not recognize any right in a party in a civil case to poll a jury — though we sometimes allow it, if the verdict is delivered under circumstances of suspicion. It is, we think, mere matter of practice, for each court to regulate for itself. It is perfectly respectful for counsel to ask leave to have a jury polled, and it is no disrespect in the court to refuse.

The judgment is affirmed.