DEPOSITIONS.

[Hamilton Circuit Court,

January Term, 1889.]

Swing, Cox and Smith, JJ.

#### C. L. GREENE & CO. v. J. H. DAVIS.

Depositions Most be Sent to Jury if Demanded.

’'Vhere depositions to which there are no objections or exceptions on the ground that they or any part of them are irrelevant, or incompetent are offered in evidence and read to the jury on the trial of the case, unless there is some special reason why it should not be done, it is the right of the party offering them, under the decisions of the state, to have them sent to the jury in their retirement. And in such case, a refusal pf the trial court to allow this to be done, when properly applied for, and an exception is duly taken to such ruling, is error, for*which the judgment should be reversed.

Error, to the Court of Common Pleas of Hamilton county.

Smith, J.

(1.) We would not be at all disposed to reverse the judgment rendered in this case, upon the ground that the trial court erred in refusing to grant the motion for a new trial for the reason that the verdict *was*against the weight of the evidence. The testimony of the defendant below, if believed by the jury, fully warranted the verdict.

*(2.)*The court allowed certain depositions offered by plaintiffs below to be read to the jury. The defendant claimed that proper notice had not been given of the taking of the same; but this objection was overruled by the court, and properly as it appears to us. No objection whatever was made to the competency of the depositions as offered and read to the jury, or to any part of them. When the jury retired for deliberation, the counsel for plaintiffs asked the court that the jury be allowed to have the depositions in their room,'but this request was refused, and the plaintiffs excepted to the action of the court. The court then allowed the exhibits attached to the deposition to be detached therefrom, and sent to the jury.

It was held by the supreme court in the case of State v. McKibben, *2*O. S., 589, that “as a general rule, depositions read in evidence should be sent to the jury on their retirement,” but that, “where part of a deposition which could not be separated from the balance without mutilation, contained incompetent evidence which was ruled out, the court might, in the exercise of its discretion, refuse to send it to the jury.” In the same case the court assumes (without expressly deciding it) that such action might be reviewed on error. In Port v. Gazley, 1 S. C. R., 105, the superior .court in general term reversed a judgment at special term, on the sole ground that the depositions offered by plaintiff in error, and read to the jury, were no't allowed to be taken by the jury in their retirement.

If it were a new question, we would be strongly inclined to hold that the better practice would be that as a general rule the depositions should not be sent to the jury- — that it gives undue advantage to the written over oral evidence, and that it would be better that the matter should be left to the sound discretion of the trial court. But adjudications by which we must be governed are to the contrary.. We have examined the record with care to find some reason,, which under the decision of the supreme court, would justify the ruling of the trial-court, but are unable to do so. The deposition- as. offered was read to the jury without, any objection as to its competency, and under the decisions referred to, *434the plaintiffs in error were entitled to have the jury take it to their room. For this error alone, we reluctantly reverse the judgment, and remand the case for a new trial.

W. A. Goodman and A. B. ITuston, attorneys for plaintiffs in error.

Wm. Norwood, attorney for defendant in error.