Shute v. Robinson , 41 N.H. 308 ( 1860 )

Bell, C. J.

Tbe deposition of tbe defendant was properly admitted in evidence, but it could not go to tbe jury without tbe defendant’s assent. If any part of a deposition is incompetent, it cannot be passed to tbe jury. Smith v. Nashua and Lowell Railroad, 27 N. H. 100. If a single passage or extract is read to tbe jury, tbe residue relating to other matters foreign to tbe case on trial, tbe deposition cannot go to tbe jury without consent; nor would it make any difference that tbe jury were instructed to consider and regard only those parts which bad been read to them. But tbe case shows that tbe deposition here in question was permitted to go to tbe jury with tbe knowledge and assent of tbe defendant’s counsel, and that it was on their suggestion that tbe court gave tbe instructions to them not to regard what bad not been read. Tbe defendant cannot object to what was done by bis consent, and it cannot be assumed that tbe defendant did not know what was in bis own deposition, whatever might have been tbe case with bis counsel. If they were ignorant of it, it was not tbe plaintiff’s fault.

Judgment on the verdict.