54 N.H. 449 | N.H. | 1874
In Baker v. Ashland, 50 N. H. 27, it is held that it is a fatal objection to the petition for a highway, if it be found to be one petition for two distinct and independent highways; that- the correct practice is for a single highway alone to be included in one petition. But because that constitutes a fatal objection to the petition if taken seasonably, it does not follow by any means that it is an objection which may not be waived, and that when waived it would affect the subsequent proceedings so as to render them void. Duplicity in pleading is usually waived and cured by pleading over, or -by not taking advantage of it at the proper time. Weld v. Lock, 18 N. H. 141; Bell v. Lamprey, 52 N. H. 41, 48, 49.
If an objection is not seasonably taken, that is equivalent to pleading over. In the case of Baker v. Ashland, the objection was seasonably taken, and was held good. If it had not been made until after the .reference to the commissioners, it would probably have been held to be waived and cured. This is a defect in form, like duplicity in any other pleading, and we think would come under the seventieth rule of court that “ objections to the form of the petition and to the legality of the notice must be made before the order of reference to the road commissioners, or they will be considered as waived.” So, if a petition had the termini properly described, but had an intermediate bound described between them, that would be a fatal objection if taken seasonably, because it is contrary to the sixty-seventh rule of court; but if this objection were not taken before the reference, it would be waived like other matters of form.
Such a case would not be like Haywood v. Charlestown, 34 N. H. 28, where there was no petition. Here was a petition for two highways, and both were laid out, so far as appears, just in accordance with the petition. No road was laid out that was not petitioned for, as in Haywood v. Charlestown; but the petition was not in proper form, inas
We see no objections to the instructions that were given. They seem in accordance with the suggestions made in the former opinion in this case — 52 N. IT. 370, 379. In fact, they are not objected to in the defendants’ brief. But certain other instructions were asked that were not given, and to tisis the defendants take exception; but we think the court was right in refusing to give them. All that was pertinent and proper, contained in them, had been given before, and taken alone, in the precise terms in which they were asked for, they were clearly objectionable: for though the surveyor may have done his full duty and have been in no fault, yet there majr have been other persons who had discovered the defects in the setting, and who knew the fact that it was insecure, and may even have communicated these facts to the town, and yet all the supposed facts in the instructions desired may have been true, so far as the surveyor alone was concerned. We think there should be
Judgment on the verdict.
