25 N.H. 78 | Superior Court of New Hampshire | 1852
This exception comes too late. As a general rule, exceptions will be considered as waived, unless taken at the first legal opportunity. Lisbon v. Bow, 10 N. H. Rep. 167; McConihe v. Sawyer, 12 N. H. Rep. 396; Stevens v. Goffstown, 1 Foster’s Rep. 454.
This petition was re-committed to the former board of road commissioners, to whom it was originally committed, instead of the new board who were in office at the time of the re-commitment. The ruling by which the petition was re-committed was made at the August term, 1851, but the exception was not taken till the January term, 1852, after the commissioners had reported upon the petition. The exception should have been taken at the August term, when the petition was re-committed. If it had been, probably the court would have transferred the question; or if not, they would have placed the matter in such a situation, by signing a bill of exceptions or otherwise, as to save the rights of the town.
It is true, the case states that the town objected to the reference at the time it was made, and moved that the petition be referred to the new board; but a mere objection cannot avail at any time. It must assume the form of an exception before the court can recognise it.
This is, moreover, an objection to an order of the common pleas, falling within its proper discretion; and this court will not revise it unless sent here for that purpose. The statute provides that “ the road commissioners shall continue
But matters falling within the discretion of an inferior tribunal are not grounds of exception, and cannot be reexamined in a superior court, unless sent up for examination. Clapp v. Hanson, 3 Shepl. Rep. 345; Jenkins v. Brown, 21 Wendell’s Rep. 454; Feneley v. Mahoney, 21 Pick. Rep. 212; Cummings v. Fullum, 13 Vermont Rep. 459; Commonwealth v. Sackett, 22 Pick. 394; Cutter v. Grover, 3 Shepl. 159.
The exception must be overruled and the
Report accepted.