Gardner v. Kimball , 58 N.H. 202 ( 1877 )

The object of annexing to a deposition a note or other paper referred to in it, is to insure identification, and that the paper may be in court when the deposition is read in evidence. But the court found that the note read in evidence at the trial of this cause, though not attached to the depositions, was marked and sent with them to the court by the magistrate who wrote them; and this is sufficient identification. The note was properly read in evidence

The objection to the copy of the power of attorney as evidence was not seasonably made. Ordinarily, objections to evidence, unless made when it is first introduced and its bearing understood, will be considered to have been waived. Bassett v. Salisbury Manf. Co., 28 N.H. 452; Taylor v. Railway, 48 N.H. 309. The judge may entertain an objection to evidence made at any stage of the trial, and exclude it from consideration by the jury, if justice requires it — Judge of Probate v. Stone, 44 N.H. 593, 607; but he is not bound to entertain the objection when made out of season, and a refusal to do so is not error.

The mistake by which the deposition, from which some words had been excluded, went to the jury-room, is not a sufficient ground for setting aside a verdict. It was the duty of counsel to see that only the proper papers were taken by the jury when they retired, and, in the absence of fraud or artifice, a verdict will not be disturbed because incompetent evidence may, through neglect of counsel whose duty it was to prevent it, have fallen into the hands of the jury.

Judgment on the verdict.

FOSTER J., did not sit.