Warren v. Glynn , 37 N.H. 340 ( 1858 )

Fowler, J.

Conceding that the magistrate before whom the preliminary examination in this case took place, was legally disqualified to act in that examination, by reason of his interest in the event of the suit, as a resident citizen and tax-payer of the complainant town, we think it entirely clear, upon the authorities, that it is now too late for the defendant to avail himself of this objection to his competency. Being a magistrate in commission, the justice before whom the complaint was made had jurisdiction of its subject matter, by the express provisions of the statute authorizing the complaint in such cases to be made and the examination to be had before any justice of the peace. The disqualification or ineompetency arose from the extrinsic facts of residence, citizenship, and liability to taxation in the complainant town, and the case finds that these facts were not only known, but understood and considered, both by the respondent and his counsel, at the time the complaint was made and the examination had, on the thirteenth day of December, 1856, and that they designedly omitted to take the objection, now insisted upon, at that time, and during the subsequent proceedings for a year and a half in the Common Pleas and this court.

It is a general rule bo which, if it be not universal, the present case does not seem to us to form any exception, that where general jurisdiction, or the power to act exists, and the only objection to its exercise is one intended for the benefit and designed for the protection of the party complaining, such objection must be taken at the earliest practicable opportunity, after the party or his counsel become awai’e of the facts on which its validity depends, or it will be held to have been waived by the omission or neglect to urge it seasonably. The reason of the rule would seem to be, that it is justly to be regarded as the folly or misfortune of a party, if, knowing of a valid objection to a proceeding, he neglects to avail himself of it, but stands by and participates therein, unless he intends, as is the natural presumption, from his silence, to waive altogether any objection on that account.

Thus a party who has not been duly summoned, or notified of a suit against him, is always and every where understood to waive his exception, if he appears and suffers a general continuance, or pleads in bar of the action, or in any way submits his case to the judgment of the court, without at once making his objection at the earliest oppoitunity. Smith v. Whittier, 9 N. H. 464; State v. Richmond, 26 N. H. (6 Foster) 242, and authorities.

So, where a cause of challenge to a juror is known to a party at the trial, he must avail himself of it at the time; or he will be considered as having waived it. Rollins v. Ames, 2 N. H. 349, and authorities.

So, of an objection to a grand juror; State v. Rand, 33 N. H. 216; and to a witness on account of his interest in the question of costs. Essex Bank v. Rix, 10 N. H. 201.

The same is true of objections to the proceedings of magistrates to whom application is made to take the poor debtor’s oath, fence-viewers, road commissioners, and various other officers. Gear v. Smith, 9 N. H. 63; Gallup v. Mulvah, 26 N. H. (6 Foster) 132; Goodwin v. Milton, 25 N. H. (5 Foster) 458, and authorities. Bunker v. Nutter, 9 N. H. 554.

So, also, in regard to the security prescribed by statute in an -appeal from a justice of the peace. Farnum v. Davis, 32 N. H. 302.

Indeed, the authorities are too numerous for citation, where it has been held that a parly, cognizant in the earlier stages thereof, of an objection that might be fatal to the validity of a proceeding before a tribunal otherwise competent, cannot be permitted to lie by and take his chances of a result in his favor, and, after one has been arrived at against him, avail himself of that objection to avoid the consequences of such adverse result.

"We are not able to perceive any distinction in principle between the case now before us, and that of Whitcher v. Whitcher, 11 N. H. 348. There, an objection was taken upon the triahthat a deposition offered by the plaintiff had been taken before and written by a magistrate who had previously acted as an attorney for the plaintiff in the same cause. It appeared that the defendant attended the caption of the deposition, and was then aware of the fact that the magistrate before whom it was being taken had previously acted as attorney for the plaintiff at a former caption. The court held that the objection, although originally fatal, came too late, and could not be taken advantage of, although the statute, by virtue of which the deposition had been taken, [act of December 31, 1828; laws of 1830, p. 505] expressly provided that no “attorney employed, nor other person interested in the cause, shall write the testimony of any witness” whose deposition might be taken under it. In delivering them opinion the court say: “A party who knows of an objection of this kind, which may be obviated by the opposing party, cannot be permitted to lie by, and present it at a time when it cannot be remedied. Had the objection been taken seasonably, the plaintiff might have declined to proceed with the deposition before this magistrate, and might have caused it to be taken before one who had always stood indifferent in the case; no objection being made, he had reason to believe that the defendant was satisfied of the impartiality of the justice.”

What was thus remarked by the court in Whitcher v. Whiteher, with regard to a deposition, applies with still greater force to the preliminary proceedings in a prosecution for bastardy, the manifest and only design of which is to secure, in a summary way, the personal attendance of the putative father, to abide the result of an adjudication upon the charge against him, before a tribunal authorized to determine his liability; and it would be quite singular if a party could be permitted designedly to lie by and await the result of the final adjudication against him, before availing himself of an objection designed for his protection, in the latter case and not in the former. Had the objection to the interest of the justice been taken at the time of the examination, the complainant town might and undoubtedly would, have obviated it by instituting proceedings anew before an indifferent magistrate. To attempt this now would, in all probability, be utterly ineffectual and useless.

As we are of opinion that the motion to dismiss the action, in the circumstances under which it was urged, was properly denied by the court below, the exceptions to the judgment denying the same must be overruled.

Exceptions overruled.