The defendant by his motion sought to set up a defence alleged to have been disclosed by the testimony but not relied upon at the trial. It is well settled under our practice that a verdict cannot be sustained upon grounds not presented at the trial, although deducible from the evidence. Doyle v. MacDonald, 85 N.H. 545, 547; Hawes v. Chase, 84 N.H. 170; Bjork v. Company, 79 N.H. 402, 407; Gage v. Railroad, 77 N.H. 289, 296 and cases cited. A fortiori a verdict cannot be disturbed upon such grounds.
Judgment on the verdict.
Woodbury, J., did not sit. *Page 386