Where without exception an order has been made by the trial court that an action of trespass should be tried by the court because it "involves the consideration of a great number of items," a subsequent ruling, that "the original declaration and the amended count were for the same cause of action" and that the former order for a trial by the court should stand, to which exception was taken, presents no question of law for the supreme court. The original order denying a jury trial being without exception is not open for revision; the subsequent ruling that both counts were based on the same cause of action was correct; and the final ruling was no more than the interpretation by the trial court of its own order.
PER CURIAM.
The question whether the plaintiff was wrongfully deprived of his right to a jury trial by the original order herein is not now open for consideration, since no exception was taken to the order at the time it was made. This is elementary. Hening, N.H. Dig. Tit. Procedure, s. x.
A comparison of the language of the original declaration with that of the amended count demonstrates that the court was correct in its ruling that they were based on the same cause of action. In this situation the last motion of the plaintiff raised only a procedural question as to the scope and effect of the previous order. The purport of the final ruling was that this order determined the subsequent course of the proceedings. The interpretation thus placed by the superior court upon its own order raises no question of law for us to consider.
Exception overruled.