The jury found, as a fact, that the want of a gate in the *Page 227 plaintiff's drain did not occasion the injury, nor contribute to it. This finding makes it unnecessary to consider the exceptions to the evidence, and to the instructions of the court relating to the question of waiver, by the defendants, of the requirements of their ordinance.
The object of the ordinance was, to require the plaintiff to prevent the flowing back of water from the defendants' sewer; and as the jury found that the injury complained of was not the result of the plaintiff's failure to comply with the ordinance, he is not barred by it from recovering.
A request for instructions to a jury, that a variance exists between the proof and declaration, when no objection to the evidence or motion for a nonsuit has been made, is out of season. Objections to evidence, unless made at the earliest practicable moment after its introduction and its bearing is understood, will ordinarily be considered as waived — Bassett v. Salisbury Mfg. Co., 28 N.H. 452, and Gardner v. Kimball, ante, p. 202; and a motion to exclude evidence already presented, because of its irrelevancy or inapplicability to the issue, should be made before argument and charge to the jury. Judge of Probate v. Stone, 44 N.H. 593. We do not decide that the judge cannot entertain the objection of variance at any stage of the trial, if justice requires it, but we are of opinion that he is not bound to entertain it out of season, and his refusal to do so is no ground for exception.
Judgment on the verdict.
STANLEY, BINGHAM, SMITH, and CLARK, JJ., did not sit.