The opinion of the court was delivered by
Williams, Ch. J.We see no objections to the charge of the court. The law was given to the jury, as it has been established in this state by a series of decisions. The only question in the case is, whether the defendant should have been permitted to make the proposed inquiry of the witness Chapin.
It is true that illegal evidence should not be permitted to go to the jury, if objected to; and if it is given in the presence of the jury, when objected to, it is error, which is not helped by the court’s directing them to disregard it. 13 Johns. 350. 15 Johns. 239. If immaterial or irrelevant testimony is inadvertently given, or if a witness is discovered to be interested after he has testified, the usual course in England is to move to have the testimony struck from the judge’s minutes, and the jury are instructed to disregard it. It would be extremely inconvenient, if it should be always ground for setting aside a verdict, that improper testimony has been introduced accidentally. Witnesses frequently through ignorance, and sometimes through design, make a remark, before the counsel introducing them have an opportunity to check them, or the opposing counsel to object; and sometimes counsel may misjudge as to what is a proper inquiry, and thus improper evidence may be before the jury, and have a tendency to create a bias; but if the court give proper instructions to the jury, it cannot be a legitimate ground for reversing a judgment, or setting aside a verdict. Brown v. Cowell, 12 Johns. 384.
The counsel for the plaintiff had a right to cross examine the witness, Chapin, as to his team running off the road, with a view to show the insufficiency of the road, or to test the accuracy of the *234witness, and, in that case, on re-examination it would, have been proper for the opposing counsel to make the inquiry proposed by way of explanation. But if that event was only referred to for the purpose of bringing the recollection of the witness to the situation of the road at that time, the explanation ought not to have been received, as it would tend to make an issue entirely foreign to the cause then on trial./ The court, who tried the case, could see whether the question asked of the witness by the plaintiff’s counsel, and his reply, required this explanation; they could also determine that it should' be wholly laid out of the cage; they must have a discretion in the case, whether to treat it one way, or the other. On the disclaimer made by the counsel for the plaintiff, and the remarks made by the court, it cannot be conceived that it had any effect on the minds of the jury prejudicial to the defendants. We cannot say, therefore,, that the court erred in refusing to permit the counsel for the defendant to inquire into the particular circumstances of the witness’ running off the road the day before.
The judgment of the county court is therefore affirmed.