The case was submitted to the referee without objection to the sufficiency of the evidence. The defendant's exception is, therefore, unavailing, for it is an elementary rule that such an *Page 484 objection is waived unless taken before the case is submitted to the trier of fact. Hening, N.H. Digest, Tit., Procedure, 1242.
Even if the procedural difficulty were obviated and the assumption adopted that the evidence is fully transferred, the defendant's position would not be improved. He failed to prove before the referee special term of his contract of purchase upon which he relied as a defence. The referee's rejection of the defendant's evidence upon this point presents no question of law.
Exception overruled.