Buckley v. Woodsum , 7 Me. 204 ( 1831 )

Weston J.

delivered the opinion of the Court. .

It was understood at the trial, that the presiding judge would instruct the jury that certain portions of the plaintiffs depositions were by law inadmissible. This he did not do ; but after he had closed his remarks to the jury, he stated to the counsel on both sides that if they desired it, he would call the attention of the jury more particularly to any part of the testimony. No intimation to this effect being made by the counsel on either side, the jury retired. A verdict being returned for the plaintiffs, the counsel for the defendants now moves for a new trial, on the ground that the judge omitted to point out to the jury such parts of the depositions adduced, as were inadmissible. We are very clear that under the circumstances, he must be regarded as having waived this objection. He took the. chance of a verdict in his favor ; and by his silence acquiesced in the omission of which he now complains.

But both the omission and his silence are easily accounted for. By the instructions of the judge, the depositions were of no sort of importance in the cause. They were adduced to show that by the custom of New York, the defendants were liable for the value of the cable and anchor, which the action was brought to recover, although they were sold and delivered to a commission merchant; but the jury were instructed to find for the defendapts unless the sale was made to the master, by which the depositions were entirely disregarded, having no legal effect or bearing upon the cause. It became therefore unnecessary to refer to certain parts of them as more especially objectionable.

Judgment on the verdict.