The opinion of the Court was delivered by
Weston C. J.The amendment of the writ, which is objected to, was made and allowed three terms before these exceptions were taken. If the amendment was exceptionable, the counsel for the defendant should have pursued the course prescribed by law, which provides, that the party aggrieved at any opinion, direction or judgment of the Court may except thereto, but his exceptions must be presented to the Court before its- adjournment, and if conformable to the truth of the case, they are to be allowed ; and thereupon all further proceedings in that Court are to be stayed. Statute of 1822, c. 193, § 5; Statute of 1839, c. 373, § 5. As the case is presented, we cannot regard this point as regularly before us.
With respect to the certificate of David Orne, we do not perceive upon what legal principle it could be received in evidence. He should have been called as a witness. It was not the act of an agent, ’in the discharge of his agency. The silence of the defendant, when apprised by Brown that he had settled with the plaintiff, according to that certificate, does not necessarily charge him with its adoption. He had no control over Brown, who was acting independently, with regard to his own proportion. Exceptions sustained.