Haines v. Republic Fire Ins. ( 1879 )

The only error in the instructions was as to the qualifications of agents; but this is not now open to the plaintiff. The exception was general. The point now taken was not known to or relied on by the counsel at the time the exception was taken. Exceptions must stand on the ground on which the party taking them intended they should stand when they were taken. But if, when taken, it was intended to rely on this point, it could not now avail the plaintiff, for the attention of the court was not called to the point now relied on. When an exception is taken to instructions which are erroneous, upon a point which, if made known at the time, would have been rectified, the point must be stated, so that the court can understand the ground of objection, and have an opportunity to correct the error. If not stated, the exception will be regarded as waived. It would be unjust to allow a party to lie by and take the chances of a verdict in his favor, and, if defeated, avail himself of an exception which might have been obviated if seasonably known. Moore v. Ross, 11 N.H. 547, 557; McConihe v. Sawyer, 12 N.H. 396; Whipple v. Stevens, 22 N.H. 219; Hayward v. Bath, 38 N.H. 179; Heath v. Heath,58 N.H. 292; Ford v. Monroe, 20 Wend. 210.

Exception overruled.

CLARK, J., did not sit: the others concurred.