The request came too late. If it had been made seasonably the plaintiff would have had an opportunity to obviate the objection as to his title by further evidence, and doubtless would have done so. But however this may be, the defendant could not lie by until after the evidence, arguments, and charge to the jury were closed, and then first avail himself of an objection that was open to him, and which in fairness he ought to have taken as soon as the evidence for the plaintiff was closed, or, at latest, when the evidence was closed on both sides. Brown v. Insurance Co.,59 N.H. 298; Dole v. Thurlow, 12 Met. 157, 164; Holden v. Cosgrove, 12 Gray 216, 217. And in view of the result of the trial, it is apparent that the defendant has no well founded cause of complaint by reason of the denial of his request, for however defective the proof of the plaintiff's title may have been, the verdict establishes the fact that Day had no title at all, or, at least, only one inferior to that of the plaintiff. This of itself is a sufficient reason why a new trial should not be granted to the defendant. He has had his full day in court, and justice does not require that he should have another.
There was no legal error in refusing to permit the defendant further to inquire of the plaintiff into the source of his title to the farm and his dealings with Day in respect to it. How far justice required the cross-examination should be allowed to go in those directions was a question of fact for the trial term. Gutterson v. Morse, 58 N.H. 165; Merrill v. Perkins, 59 N.H. 343, 345; Gibbs v. Parsons, 64 N.H. 66, 68.
Exceptions overruled.
CARPENTER, J., did not sit: the others concurred.