
    George W. Gilbert vs. Frank Cushman.
    Knox.
    Opinion August 20, 1915.
    
      Demurrer. Exceptions. R. S., Chap. 79, Sec. 56. R. S., Chap. 84, Sec. 35. Waiver.
    
    Where the demurrer of defendant to the declaration of plaintiff is overruled and the parties proceed to trial upon the merits of the case, the defendant will, under the circumstances of this ease, be held to have waived the right to exceptions to the overruling of the demurrer.
    On exceptions by defendant.
    Exceptions overruled.
    This is an action on the case against the defendant for taking and carrying away the certificate of enrollment of the Steamer “Herman Reesing.” The defendant demurred both generally and specially to plaintiff’s declaration, and the presiding Justice overruled the demurrer. To this ruling, the defendant excepted.
    The case is stated in the opinion.
    
      Gerry L. Brooks, for plaintiff.
    
      Rodney I. Thompson, for defendant.
    Sitting: Savage, C. J., Spear, King, Bird, Haley, Hanson, JJ.
   Bird, J.

In this case are presented for consideration the exceptions of defendant to the overruling of his demurrer to plaintiff’s declaration. At the argument of the case, it was stated by counsel for plaintiff and admitted by defendant’s counsel that upon the overruling of the demurrer, the case proceeded to a trial upon the merits which resulted in a verdict for the plaintiff. We are of the opinion that the exceptions can not be considered. The record consists of the declaration and bill of exceptions. The day of the allowance of the latter does not appear, but we think it can be safely assumed that no bill of exceptions was filed and allowed until after defendant’s failure to secure a verdict. Nor is it to be conceived that the cause was submitted to the jury without the filing and joinder of the general issue and leave obtained by defendant to plead anew. This is not the case of a dilatory plea overruled with exceptions where the cause proceeds to a close of the trial and then comes forward, R. S., Chap. 79, Sec. 56, but is controlled by R. S., Chap. 84, Sec. 35; see also Id., Chap. 79, Sec. 46; Copeland v. Hewett, 93 Maine, 554, 557. See also Furbish v. Robertson, 67 Maine, 35, 38; Mayberry v. Brackett, 72 Maine, 102. Under the circumstances of this case, the defendant must be regarded as having waived his exceptions. True v. Plumley, 36 Maine, 466, 477.

The exceptions must therefore be overruled,

Exceptions overruled.  