The proceedings of the judge, on the return of the jury without a verdict, appear to us to have been marked with strict propriety and delicacy. When a jury, not having agreed after deliberation, desire further instructions, or a modification or explanation of instructions previously given, the counsel have a right to know what instructions or explanations are given, because they are open to exception in matter of law. But in all other respects it is a transaction between the judge and jury. The situation is a delicate one. The jurors are presumed to have discussed the case, and to have formed or be on the point of forming opinions. Any further discussion, either of the evidence or the law, in presence of the jury, might be eminently prejudicial. At all events, it is for the judge himself, at his discretion, to determine whether to permit such discussion or not.
The instruction which the judge did give, or rather his comment on the evidence, we think was right. There was an attempt at the trial to prove notice to the plaintiff of a certain fact; but it was an attempt to do so by circumstantial evidence. Publication of an advertisement in a newspaper was one step towards it, and therefore proof of that fact was rightly admitted, though it is doubtful whether mere paroi evidence, without the production of the paper or a copy of it, was competent. But suppose it was; proof of one or five steps, when ten are necessary to reach the conclusion, is not even prima facie evidence of the fact to be proved.
Here the evidence of notice by this advertisement had so far failed that neither one of the counsel had remarked upon it in the argument, nor the judge in his charge. It was raised by a scruple suggested by a juror. In reference to this, the judge instructed the jury that the mere advertisement amounted to nothing as notice to the plaintiff, and that there was no evidence that knowledge of it was brought home to the plaintiff. Whether there was any such evidence must have been known tc the judge; and if there was none, the mere fact of advertisement was not notice to the plaintiff. The other direction was substantially the same proposition in another form. The judge *358stated that the advertisement could not be considered by them as notice to the plaintiff, unless it was proved by other and direct evidence that it was read by or known to the plaintiff. Such evidence might be various in character, such as the character and circulation of the paper, the number of newspapers published in the same city or town, and any circumstances of the plaintiff’s residence, habits or business, leading to a belief that the advertisement was seen or known by him, or the contrary. We think this proposition was correct.
This is not a case where a publication in a newspaper is required by statute, or by a custom of merchants, which is a part of the law merchant. There, such publication may operate as constructive notice, whether brought home to the knowledge of any one attempted to be affected by it, or not; as in case of the dissolution of a partnership. Pitcher v. Barrows, 17 Pick. 365. Here it was a question whether the advertisement was actually known to the plaintiff or not. Exceptions overruled.