all exceptions taken on the hearing. This clearly contemplates that exceptions must be taken as on trials before the court to entitle a party to challege on appeal the ruling of the referee. This rule is confirmed by the general provision that “the trial by referee shall be conducted in the same manner as a trial by the court.” Neither did the defendant take any exception to the referee’s ruling when the case was before the court on application to confirm the referee’s report, and for judgment, nor did he there renew his objections and except to the refusal of the court to sustain him in his objections to the evidence received by the referee. A still more decisive aswer to these objections is that defendant by his affirmative action has sealed his lips against urging them here. Preliminary to the hearing before the referee, the defendant himself objected “to the referee making any rulings whatever.” The referee, therefore, merely followed the wishes of the litigant, who now insists that the referee erred in acceding to his request.
It is further urged that the court erred in not dismissing the action, because it is claimed that it appeared that the business in the prosecution of which were earned the profits, to recover his share of which the plaintiff instituted this action for dissolution and accounting, was the sale of intoxicating liquors, and that such business was illegal, because the plaintiff held no license authorizing him to conduct the same, the only license being issued to and held by the defendant. There are several answers to this objection. The defense is not pleaded. Therefore defendant had no right to offer evidence on the point, nor could he avail himself of evidence sustaining it, although disclosed by plaintiff's own case. Cardoze v. Swift, 113 Mass. 250. Said the court in this case: “In such an action a defendant who has not pleaded illeyality in the contract sued on has no right to offer evidence of such illegality or even to avail himself of it, when disclosed in the plaintiff's testimony, if the court does not refuse to entertain the case.” See, also, Railroad Co. v. Miller, 16 Neb. 661, 21 N. W. Rep. 451-453. The question is not before us for another reason. The error, if any, in denying the motion to dismiss was an error of law occuring on the trial. It should have been specified in the bill of exceptions. Comp.
