63 Me. 110 | Me. | 1873
Tlie objection that the committee was not sworn before giving notice of the time and place of hearing comes too late. Objections of a purely technical 'character, and which, like pleas in abatement, do not go to the merits of the case, must be made at the earliest practicable opportunity, or they will be regarded as waived. Objection to a juror, (11 Pick., 468 ; 2 Gray, 281,) or a referee, (10 Pick., 275,) or a county commissioner (10 Pick., 519,) or a juror to assess damages sustained by the location or discontinuance of a highway, (2 Metc., 558,) or an officer appointed to preside before a sheriff’s jury, (11 Pick., 269,) or the members of a committee to locate a road, (30 N. H., 23,) must be made before a trial is had, if then known, or it will be regarded as waived. The reason given in all the cases is substantially the same, namely, that a party shall not take the chance of obtaining a decision in his favor, without being bound by the result if the decision is against him.
And in cases of this kind the court will presume knowledge on the part of the party objecting, unless the contrary is shown.
It may be true that regularly the committee should have been sworn before giving notice of the time and place of meeting; because the giving of notice is an official act, and like all their official acts, should be upon their official oaths. But of what consequence was it to these appellants? Surely an unofficial, or informal notice, cannot be worse than no notice at all. And inasmuch as the appellants actually appeared before the committee and had a hearing, they would be in no condition to object, if no notice at all had been given. That is, at this stage of the proceedings. If no notice at all had been given; or if the notice given was informal and unofficial, because given before the committee was sworn; and the objection had been seasonably made, it might have been fatal to the proceedings. But inasmuch as the error, if any, existed before the trial; and in the absence of any averment or proof to the contrary, the appellants are presumed to have had knowledge of its existence; and they did not then make the objection, biit went to trial and took the chance of obtaining a decis
The other objection — namely, that the county commissioners had no jurisdiction under the petition which was the basis of their action, and therefore the cotu’t had no authority to appoint the committee, is not insisted upon by the excepting party, and need not, therefore, be considered further than to say that in the opinion of the court the objection is not well founded.
Exceptions overruled.