Hubner v. Hoffman

106 Mass. 346

Opinion

Gray, J.

This court has no jurisdiction of the question presented in this report. The St. of 1862, c. 36, making it a condition of the right to recover costs under that act, that the judge before whom the cause is tried shall certify that a right to an easement or title to real estate is in fact concerned, does not authorize him to refer to' this court the question whether he shall give such a certificate. The St. of 1869, c. 438, is limited to questions arising before verdict and reported by consent of parties. The Gen. Sts. e. 115, § 6, by which the court after verdict may report the case for determination by this court, extend only to questions of law affecting the rights of the parties to the subject matter in controversy, and do not include points incidental to the taxation of costs. Questions of law affecting the taxation of costs only, and not appearing of record so as to be the subject of appeal, cannot be brought to this court otherwise than by bill of exceptions under the Gen. Sts. o. 115, § 7; and all questions of fact or discretion must be finally determined in the court below. Report dismissed.