¶1 It appears from the statement of the case, which his Honor sends to this Court, that the plaintiff’s counsel, in addressing the jury, asked them, in consequence of alleged spoliation in a certain deposition which had been *228 admitted and read to them, not to believe the statements contained therein.
¶2 The counsel for the defendant objected to the comments of the plaintiff’s counsel at the time, and asked the Court to charge the jury that there was no evidence of any spoliation; which the Court declined to do, but remarked that the Court did not know whether there was any spoliation or not; that the jury had been shown the alleged spoliation and could examine it again, and it was for them to say whether they were satisfied that there had been any spoliation or not.
¶3 In this there was error.
¶4 The question of spoliation was one of fact to be tried by the Court upon inspection, and should not have been left to the jury.
¶5 The defendant is entitled to a venire de novo.
¶6 Venire de novo.