Dinkelspiel

after stating the case as above, delivered the opinion of the court.

It is assigned as error that the court permitted counsel for defendant in error to comment upon Exhibit D as being a part of the evidence, and to read the same to the jury, and that the court permitted said paper to go to the jury, and permitted the jury to consider it as part of the evidence in the case. It is evident from the bill of exceptions that the exhibit was by inadvertence, not offered or received in evidence, nor read to the jury. Was the ruling of the court in permitting the jury to consider it as evidence, and in permitting them to take it to the jury room, error, for which the judgment must be reversed? That it was error is too clear to require discussion. But did it affect a substantial right of the plaintiff in error? To answer this question, it becomes necessary to consider the bearing of the exhibit upon the issues which the jury were called upon to decide. The defendant in error had made two classes of deposits with the plaintiff in error: First, a series of deposits to be drawn against on account; second, certain deposits in packages for safe-keeping. He testified that the three deposits for…