The opinion
McKinstry, J., dissenting:
In Board of Education v. Donahue, 53 Cal. 196 ,1 had occasion to say: “ A reference to, and. inspection of, a report and map—the colors on the latter being restored—sufficiently identify the lots selected by the commissioners as school lots.” But, while the plaintiff in the present case, if such an offer had been made, should have been permitted to prove the colors of the map when it was filed, the offer to prove what the commissioners intended by the different colors was, in my opinion, properly refused. If such testimony was inadmissible, I feel confident it was not error to reject the offer made in gross. It *651 is admitted that the decisions in New York and Pennsylvania would justify the action of the Court froth which this appeal is taken. In Maryland, it would appear to have been held otherwise. In Moore v. The Bank of the Metropolis, 13 Peters, and Buffington v. Cook, 39 Ala.—cited in the prevailing opinion—it was simply held that where evidence had been admitted without objection, and a party moved to exclude the whole of such evidence, the trial court properly denied the motion—it appearing that a portion was admissible.
I conceive that the rule, as laid down in New York, is fairer to the lower courts, and would better protect the rights of suitors. I am, therefore, compelled to dissent from the judgment.
[Thornton, J., being disqualified, took no part in the decision of this case.]