
    Jno. W. Shelby v. Lewis Mock.
    New Trial — Taking Unread Depositions to Jury Room.
    Where counsel for one of the parties knew that the jury had taken to the jury room certain depositions which were not read on the trial, it is not sufficient alone to object to the irregularity, since the attention of the court should have been called to it in order to- make it a ground for a new trial.
    APPEAL PROM MERCER CIRCUIT COURT.
    November 15, 1873.
   Opinion by

Judge Lindsay:

P. B. Thompson, Sr., filed- with the motion for a new trial, an affidavit showing that of his own personal knowledge, the jury took with them to their room certain depositions, not read on the trial of the action.

Upon the trial of the motion, T. C. Bell stated that he understood that it was consented “that all the depositions should be taken by the jury.” J. B. Thompson, Jr., stated that he or one of Shelby’s attorneys objected to the jury taking with them depositions that had not been read. P. B. Thompson, Sr., states that he objected to the deposition of F. M. Young and O’Rear being taken; but he does not state anything inconsistent with, or explanatory of the statements made in the affidavit filed with the motion, which showed that, notwithstanding objections made by himself and co-counsel, he knew that the jury were taking the deposition with them. It was not enough that he should object to an irregularity about to be committed, and then see it done without calling the attention of the court to it. There is nothing in the record, to show that the court or the counsel for Mock knew that the jury had in their possession these depositions, and if Shelby was prejudiced thereby, it is because his counsel did not take the necessary steps to prevent the injury, although aware of the damage. Whether this was “sharp practice” or conduct unbecoming an officer of the court, are questions not before this court for adjudication.

/. B. and P. B. Thompson, for appellant.

McKee, Bell, Harding, for appellee.

It does, however, in our opinion, preclude Shelby from asking a new trial on this ground.

Petition overruled.  