FARMERS' & TRADERS' NAT. BANK OF COVINGTON, KY., v. GREENE et al., 74 F. 439

SEVERENS, District Judge, haying stated the case as above, delivered the opinion of the court. Six supposed errors are assigned upon the proceedings at the trial of this case, only two of which, however, — the first and the fourth, — are founded upon exceptions duly taken.

The second error assigned is a mere elaboration of the first, specifying a number of particular parts of testimony which the court refused to exclude upon the motion made, as above stated, at the close of the testimony and the arguments, and is the same matter the refusal to exclude which is made the subject of complaint in the first of the errors assigned.

The third of the errors assigned relates to the reference by the court, in its charge to the jury, to the evidence in regard to the time required for transmission and presentation of a draft from Covington to Jersey City, as bearing upon the question of negligence in respect of the two drafts of the 30th of June and the 1st of July, respectively. It is manifest that, if the court was right in its refusal to exclude the evidence in relation to that third draft from the jury, that testimony must be admitted to have remained in the case, and was proper matter for the comment which the court made upon it.

But, short of this, it is enough to say that there was no exception taken to any part of the charge of the court to the jury, and hence there is no proper foundation i'or this assignment of error. The fifth and sixth of the supposed errors complain of the rendition of the judgment which ensued upon the verdict of the jury, and, in themselves, allege no error, independently of the supposed error of the court in refusing to instruct the jury to find its verdict for the defendant.

The only exceptions necessary to be considered, therefore, are those taken upon the refusal of the court to strike out all the evidence relating to the draft for §658.111, of the 3d of July, and in the court’s further refusal to instruct the jury to find a. verdict for the defendant. In respect to the first exception, it is to be observed that the objection upon which it rests was not taken at the time of the introduction of the evidence.

The witnesses testifying in reference to that matter were examined in chief by counsel for the plaintiff, and were cross-examined by counsel for the defendant, without any suggestion of irrelevancy, and the objection was not stalled until the arguments to the jury had been closed. After having waited until the tendency of the evidence had been developed, and its effect upon the case indica fed, it was too late to raise the objection.

A party cannot be permitted to lie by, and experiment upon the testimony. and ascertain what might come of it, for benefit or disadvantage, and then, if it turns out to be unpropitious for Mm, seek to exclude it altogether. This is a well-settled rule in practice, in dealing with evidence' upon the trial of cases both civil and criminal. Brockett v. Steamboat Co.. 18 Fed. 156; Schuchardt v. Allens, 1 Wall. 359; Teal v. Bilby, 123 U. S. 572, 8 Sup. Ct. 239; Benson v. U. S., 146 U. S. 325, 13 Sup. Ct. 60.

We do not mean to say that this rule would apply to a case where the irrelevant evidence! had crept into the trial by inadvertence, or without negligence on the part of counsel. In such case the objection might be subsequently taken, if it is done seasonably, and In such a manner as not to prejudice the other party. In the present instance we are dealing with a case where the irrelevancy, if it was such, was at all times obvious, and where the record shows that the complaining party took his chances of profiting by the testimony.

It might be That the evidence relating to the draft of July 3d was irrelevant, because it was not at the time of the trial the subject of controversy, and that, for that reason, evidence of the length of time which, on a particular occasion, had sufficed for transmission and presentation of the draft, would have been open to objection, if seasonably taken, and that if it had been taken at the proper time the court should have excluded if, but it is not’ necessary for us to express any opinion upon that question, in the circumstances of the present case.

The second of the exceptions above referred to was taken to the refusal of the court to allow (he motion of defendant’s counsel for instructions to the jury to render a verdict for the defendant. But, having looked into the evidence as exhibited by the bill of exceptions, we are all agreed that, while the recovery stands on narrow grounds, there was sufficient to require the court to submit the questions at issue to the jury for their determination; the tendency of the evidence being to establish the facts collected in the statement preceding this opinion, and to support the verdict.

That being so, it was a question for the jury to decide whether the alleged negligence of the plaintiff was made out. It has not been controverted in this case that the negligence of the Hanover National Bank, if any such existed, is chargeable to the plaintiff in error, and imposed upon the latter a liability to Greene & Embrey, because it undertook the collection of the drafts. As we find no error in the rulings of the court below, the judgment must be affirmed.