Patten v. Hunnewell , 8 Me. 19 ( 1831 )

Mellen C. J.

delivered the opinion of the Court.

The question presented in this ease comes before us in a form somewhat unusual. An objection was made in the Court of Common Pleas to the acceptance of the report, for certain reasons said to exist, but of which no proof whatever was offered; and we have no means of knowing whether any proof of the facts alledged ever can be produced. The Judge expressed an opinion that, if proved, those facts would furnish no sufficient ground for setting aside the report; to this opinion the defendant excepted. Had he offered proof of the facts stated and the Judge had rejected it; or if he had admitted it, and placed his decision on its insufficiency, the intended question would have been properly before us on the exception ; but such is not the case, and on this ground we think the defendant is not entitled to the relief he seeks. But without going into the general questions which have been argued, we think there is also another objection to the prevalence of the defendant’s motion, it does not appear that there was any' objection made to the mode of proceeding adopted by the referee; for aught which appears, the whole might have been done by consent of parties; such a course being often pursued in cases of this nature. Surely, if in a trial at law, an improper witness is admitted without any objection, such admission can be no legal ground for an exception ; and why should it be here ? We see no reason for sustaining the exception 5 and it is accordingly overruled. Judgment for Plaintiff\