Opinion
Decided January 2, 1929.
CASE. During the argument for the plaintiff to the jury the defendant objected to certain statements made in it. It did not appear either from the stenographer's notes or from the court's recollection that exception was taken to the statements or to the court's action regarding them, and although defendant's counsel thought exception was saved, the court expressly stated that it made no finding whether any exception was asked for. Transferred by Oakes, J. "on any question of law raised" on the facts appearing.
William H. Sleeper, for the plaintiff.
Marvin, Peyser Tucker, for the defendant.
The merits of the argument and the sufficiency of the court's action to overcome its alleged impropriety cannot be considered. As it does not appear affirmatively, and as it is not to be assumed unless it thus appears, that exception was taken relative thereto, the law of the trial was final. Lee v. Dow, 73 N.H. 101, 105. "Counsel should present his objection in a form calling for a ruling by the court, the presiding justice should allow exceptions only when they relate to a `ruling, direction or judgment' of the court . . . and this court should consider such exceptions only as have been regularly taken." Tuttle v. Dodge, 80 N.H. 304, 312.
Case discharged.