Foss v. Strafford

Eastman, J. 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 [82] in office, as to all proceedings commenced or pending before them, until the same shall be completed, unless the court, for good cause shown, shall refer the same to the road commissioners for the time being.” The court decided that no such good cause was shown as to warrant them in taking the case out of the ordinary course; and they did not see fit to send the question to this court for advisement. This they might have done, however, had the objection assumed the form of an exception and been taken at the proper time. 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.