Merrill v. Merrill

Yirgin, J.

The thirty-first rule of the superior court is a transcript of the twenty-seventh rule of this court. And it has been repeatedly decided that when, as in the ease at bar, a party is seasonably notified under the rule to produce at the trial a specified book, and it is produced, and the party calling for it examines it and omits to introduce it in evidence, the party producing it may introduce so much of it as is pertinent. Blake v. Russ, 33 Maine, 360. Penobscot Boom v. Lamson, 16 Maine, 224.

II. Whether or not the particular part of the deposition was admissible, we have no means of knowing, inasmuch as no part of the deposition is contained in the bill of exceptions. We cannot presume the ruling to have been erroneous. Howes v. Tolman, 63 Maine, 258.

III. It is objected that the judge, in his charge, prefaced some general observations in relation to weighing the testimony of the witnesses, with the phrase “as has been stated by counsel.” If' this could be considered objectionable in any case, the defendant fails to show how he was aggrieved in this casé, for it does not appear in the exceptions to which of the counsel the remark had reference. If to the defendant’s, we cannot perceive how he could be aggrieved thereby.

IY. The St. of 1874, c. 212, in substance provides that whenever an interested party is aggrieved by the expression of an opinion by the .presiding justice upon issues of fact arising in a jury trial, he is entitled to a new trial upon exceptions. To bring a case within the provisions of this statute, the bill of exceptions must show in some mode what the issue was upon which the alleged opinion was expressed. This may be done by reporting the pleadings, and so much of the evidence as is material, or the excepting party may allege in terms what the particular issue was; and then so much of the charge as is the subject of complaint would present the question. But nothing of the kind appears in this case, with the exception of a few extracts from the charge; and from these we can glean no expression of opinion upon any issues of fact which may have arisen during the trial. Allen v. Lawrence, 64 Maine, 175. State v. Benner, 64 Maine, 267, 291. State v. Smith, 65 Maine, 257, 269. Exceptions overruled.

Appleton, C. J., Dickerson, Barrows, Daneorth and Libbey, JJ., concurred.