offered is upon the party offering it, and unless he shall convince the court that the evidence is material and relevant to the issue no error is committed by the court in excluding it. Hence, the purpose of the party in introducing evidence must clearly appear in order that an exception to its exclusion may be taken advantage of by him upon appeal.' The adverse party has the right to demand, except where the witness is under strict cross-examination, that counsel shall state concisely the substance of what he proposes to prove by the witness. If he request it, and if he does not then the court of its own motion, may require the purpose of the question to be shown before it is answered and not after the objection to the answer as it is given has been sustained, though if the competency of the evidence is ascertainable only after the answer has been given, it should be allowed subject to objection by the adverse party. If evidence is offered by a party as a whole, it is not error for the court to reject all of it where it clearly appears that a part of it is inadmissible, and the facts. which are susceptible of proof or which are relevant cannot be readily separated from those which are not. And where evidence is offered for a particular purpose, it is not error to receive it over a general objection that it is not admissible for any purpose, if it was admissible for any purpose though not for the purpose which was specified."

Again, evidence which is originally offered without any limitation as to its purpose, when, on objection, its purpose

Va. 421; Carley v. New York, etc.
Co., 1 N. Y. S. 637.

4 Clark v. Ryan (Ala.. 1893), 11 S. Rep. 22; Reynolds v. Franklin, 47 Minn. 145; First Nat. Bank v. North (S. D.), 51 N. W. Rep. 96; Cincinnati, etc. Co. v. Roesch, 126 Ind. 445: Over v. Schiffling, 102 id. 691; Beard v. First Nat. Bank, 41 Minn. 153. Cf. Gorsuch v. Rutledge, 70 Md. 272.

1 Smethurst v. Propes, 148 Mass. 261; Atherton v. Atkins, 139 Mass. 61; Lahn v. Gustafson, 73 Iowa, 633; 35 N. W. Rep. 660; Masters v. Marsh, 19 Neb. 458; Hamilton v. Ross, 23 id. 630; White v. Spreckels, 75 Cal. 610; Dwyer v. Rippetoe, 72 Tex. 520; Hathaway v. Tinkham, 148 Mass. 85; Cheek v. Herndon, 82 Tex. 146; Johnson v. Merry, 53 Fed. Rep. 569; Lauter v. Simpson, 2 Ind. App. 5 Charleston Ice Mfg. Co. v. Joyce 293; Hurlbut v. Hurlbut, 63 Vt. 667. (C. C. A.), 54 Fed. Rep. 332; Giles v. 2 Chicago, etc. Co. v. Debaum, 2 Vandiver (Ga.. 1893), 17 S. E. Rep. Ind. App. 281. 115; Odell v. Metro. El. R. Co., 22 'Gunn v. Ohio Riv. Co., 37 W. N. Y. S. 737; Parsons v. New York

Cent. P. R. Co., 112 N. Y. 355

is stated, becomes admissible for all legitimate purposes when a further objection is made and overruled that it is not admissible for any purpose. It is discretionary with the court to call either for a distinct statement of the purpose and materiality of the evidence, or to let these elements appear from the tenor of the question itself. If the question upon its face clearly calls for evidence which is irrelevant or otherwise inadmissible, the court has the right to rule it out at once, and it may treat the matter as concluded and refuse to listen to counsel in case they attempt to show by argument that the answer which is called for is not incompetent evidence. It is always within the sound discretion of the court to reject oral evidence which is offered under circumstances from which the inference may be drawn that the offer was not made in good faith. Among circumstances which are calculated to excite suspicion is the absence from court of the witness who is expected to give the oral evidence.

Again, the court may, and perhaps should, require that the evidence shall be offered so that it will not be heard by the jurors, where it is likely that they will be prejudiced thereby in case it is pronounced inadmissible. If, however, the jury are plainly instructed to disregard the evidence which is offered in their hearing if it shall be deemed incompetent, no error is committed by allowing them to hear it as offered, or to be present during the argument upon the question of its admissibility.5

An objection to evidence, to be sufficient, should be specific, pointing out clearly to the court the nature of the objection and the particular grounds upon which the rejection of the evidence is sought, or an exception will not be available.

1 Sears v. Starbird, 78 Cal. 225. 2 Osgood v. Bauder (Iowa, 1891), 47 N. W. Rep. 1001; Hathaway v. Tinkham, 148 Mass. 85.

3 Scotland Co. v. Hill, 112 U. S. 183; Robinson v. State, 1 Lea (Tenn.), 673.

4 Omaha Coal, etc. Co. v. Fay (Neb., 1893), 55 N. W. Rep. 211.

5 People v. Smith, 104 N. Y 491; 10 N. E. Rep. 873; State v. Cain, 20

A general

W. Va. 679; State v. Wood, 53 N. H. 484.

6 Ohio & M. R. Co. v. Walker, 113 Ind. 196; Noftsger v. Smith (Ind., 1893), 32 N. E Rep. 1024; Smith v. Morrill, 39 Kan. 665; 18 Pac. Rep. 915; Carroll v. O'Shea, 21 N. Y. S. 956; Godfrey v. Knodle, 44 Ill. App. 638; Brown v. Wakeman, 18 N. Y. 263; Pennsylvania Co. v. Horton, 132 Ind. 189; Mooney v. Peck, 49 N.

objection that the evidence is "incompetent, immaterial and irrelevant" will not suffice.1

Upon an appeal or a motion for a new trial no other objections can be urged than those which were put forward on the trial. A party whose evidence has been rejected must, in order to have a review on appeal, take an exception to the action of the court after a formal tender and objection, which exception should be noted by the judge or by the court stenographer for him. The exception should be plainly and specifically stated in the bill of exceptions over the signature of the party or his counsel, and the bill should be examined by the judge, who should also sign it if it is true.3

Where an assignment of error is required to be contained in the transcript of the record, in the case on appeal or in the appellant's brief, it must point out the particular erroneous rulings of the trial court on the evidence; for a mere statement that the court erred in overruling all of appellant's objec

J. L. 232; Linton v. Allen, 154 Mass. 432; Tilley v. Blivens, 110 N. C. 343; Helena v. Albertose, 8 Mont. 499; Drew v. Drum, 44 Mo. App. 25; Briggs v. Jones, 46 Minn. 277; Williams v. Clink, 90 Mich. 297; Hogan v. Shuart, 11 Mont. 498.

1 Stringer v. Frost, 116 Ind. 477; Johnson v. Brown, 130 Ind. 61; Churchman v. Kansas City, 49 Mo. App. 366; Alcorn v. Railroad Co., 108 Mo. 81; Evans. R. Co. v. Fettig, 130 Ind. 61; Rupert v. Penner, 35 Neb. 587; Chicago, etc. Co. v. Behmey, 48 Kan. 47. An objection to an expert witness must clearly point out the incompetency of his evidence. Mortimer v. Met. E. R. Co., 129 N. Y. 84; Jefferson v. New York El. R. Co., 132 id. 483.

2 Bailey v. Chicago, M. etc. Co. (S. D., 1893), 54 N. W. Rep. 596; Falk v. Gast Lith. Co., 54 Fed. Rep. 890; Whitaker v. White, 69 Hun, 258; Wilson v. Railroad Co., 114 N. Y. 487; Haviland v. Man. R. Co., 61 Hun, 626; 131 N. Y. 630; Toplitz v.

Heddens, 146 U. S. 252; Little Rock v. Railroad Co., 56 Ark. 495: Chandler v. Beal, 132 Ind. 596; Hommedieu v. Railroad Co., 120 Ind. 435.

3 Hartsock v. Mort, 76 Md. 281; Connell v. O'Neill, 154 Pa. St. 582; Welborn v. Atl. R Co. (Ga., 1893), 17 S. E. Rep. 672. As to the paramount necessity for a bill of exceptions, see Brooke v. Tradesmen's Bank, 68 Hun, 129; Cramer v. Akin, 49 Mo. App. 163; Pace v. Lanier (Fla., 1893), 13 S. Rep. 363; Spangenberg v. Charles, 44 Ill. App. 526; State v. Cent. P. R. R. Co., 17 Nev. 259; Whidby Land Co. v. Nye, 5 Wash. St. 501; Pedrosena v. Hotchkiss, 95 Cal. 636; Bray v. Kemp (Mo., 1893), 21 S. W. Rep. 220; Lusk v. Parsons, 39 Ill. App. 380; Elmer v. Marsh, 3 Ind. App. 558; Schneider v. Tombling, 34 Neb. 661. The bill of exceptions should contain all the evidence where insufficiency of evidence is alleged. Texas, etc. Co. v. Cox, 145 U. S. 593. See, also, note 1, p. 558, post.

tions will not suffice. The evidence itself should be stated and the action of the court thereon clearly described. A party has no right to speculate on the effect of evidence. He should not be permitted to maintain silence in case the inadmissible evidence, which was introduced by his adversary without objection, proves favorable to himself, and move to strike it out if, on the other hand, it turns out more favorably to his adversary. Hence, the reception of inadmissible evidence is not ground for a new trial because the jury was not warned to disregard it, unless the party objected promptly when the evidence was offered and took an exception in case his objection was overruled.2 If evidence is rejected on the trial because it was irrelevant or otherwise improper for the purpose for which it was offered, a new trial will not be granted because it has been subsequently discovered that the evidence would have been admissible on other grounds or for another purpose, unless the party who appeals or moves for a new trial shall show that he was not in fault in the matter and that he has been unjustly and substantially prejudiced by its admission.3

§ 367. Waiver of objections to evidence - Necessity for repeating objections.- Objections to the admission of evidence should be promptly made; for if a party is negligent in permitting the evidence to be placed before the jury without making any objection, his laches may debar him from a new trial, even though he may have

1 Weston v. Moody, 29 Fla. 169; Union Bldg. Ass'n v. Insurance Co., 83 Iowa, 647; Mitchell v. Mitchell, 84 Tex. 803; Giboney v. German Ins. Co., 48 Mo. App. 185; Herbert v. Duffur (Oreg., 1893), 32 Pac. Rep. 502; Robertson v. Coates, 1 Tex. Civ. App. 664; McElroy v. Braden, 152 Pa. St. 78; Reese v. Coffey (Ind., 1893), 32 N. E. Rep. 720.

2 Cleveland, etc. Co. v. Wynant (Ind., 1893), 34 N. E. Rep. 569; In re Gannon's Wills, 2 Misc. Rep. 329; W. U. T. Co. v. Lindley, 89 Ga. 484; Dee v. Sharon Hill Acad., 2 Pa. Co. Ct. Rep. 228; Boughton v. Smith, 67 Hun, 652; People v. Cronise, 51 Hun, 489;

moved to suppress it before

Graham v. McReynolds, 90 Tenn. 673; Haines v. Savies, 93 Mich. 440; Matson v. Frazer, 48 Mo. App. 302; Carpenter v. Willey (Vt., 1893), 26 Atl. Rep. 488; Fleming v. Latham, 48 Kan. 773; Crawford v. Anderson, 129 Ind. 117; O'Connell v. Main Hotel Co., 90 Cal. 515; Teal v. Bilby, 123 U. S. 572: 8 S. Ct. 239; Wiggins v. Guthrie, 101 N. C. 601; Johnston v. Allen, 100 N. C. 131.

trial, as in the case of a deposition which is read to the jury,1 or, where the witness is permitted to answer an immaterial or irrelevant question, he has moved to strike out the answer.2 Where a witness has testified to certain facts without any objection, an objection to the admission of similar or cumulative evidence from him or from another witness will be deemed waived by the party's silence. On the other hand, where objections to the general competency of the witness, or to the admissibility of his testimony in its entirety, or to a certain portion of it consisting of similar questions, have been promptly made and overruled, counsel is under no necessity of repeating his objections indefinitely, either to the competency of the witness or to the relevancy or admissibility of any questions which may be included legitimately in the prior objections.* The party over whose objection evidence is received should demand an express ruling by the court upon his exception taken thereto, for if no rulings appear upon the record it will be presumed that the party waived his right to take an exception to evidence which he claims was inadmissible."

In conformity with the general rule that objections not promptly made will be deemed to have been waived, it is held that objections to evidence cannot be urged on a trial de novo in an appellate court which were not interposed in the court below. An objection to the reception of evidence may be

1 Union Pac, Ry. v. Reese, 56 Fed. Rep. 569.

2 Cleveland, etc. Co. v. Wynant (Ind., 1893), 34 N. E. Rep. 569; Omaha So. Ry. Co. v. Beeson (Neb., 1893), 54 N. W. Rep. 557; Chandler v. Beall, 132 Ind. 596; Scott v. Metro. El. R. Co., 21 N. Y. S. 631; Dallmeyer v. Dallmeyer (Pa., 1888), 16 Atl. Rep. 72; Hughes v. Ward, 38 Kan, 452; Lewars v. Weaver, 121 Pa. St. 268. Contra, Jones v. State, 118 Ind. 39.

3 Pharo v. Beadleston, 21 N. Y. S. 989; Denver & R. G. Co. v. Morrison (Colo., 1893), 32 Pac. Rep. 859; Shrimpton v. Philbrick (Minn., 1893), 55 N. W. Rep. 551; Bank v. Inman (Ind., 1893), 34 N. E. Rep. 21; Payne

v. Miller, 89 Ga. 73; Brice v. Miller, 35 S. C. 537.

4 Gilpin v. Gilpin, 12 Colo. 504; Sharon v. Sharon, 79 Cal. 633; Whitney v. Traynor, 74 Wis. 289; In re Eysamon, 113 N. Y. 62. If either party without objection introduce a part of a conversation in evidence, his adversary will not be considered to have thereby waived his right to object to the residue if the part already called out was irrelevant. People v. White, 14 Wend. (N. Y.) 111. 5 Shroder v. Webster (Iowa, 1892), 55 N. W. Rep. 569; Taliaferro v. Lee (Ala., 1893), 13 S. Rep. 125; Burdin v. Trenton (Mo., 1893), 22 S. W. Rep. 728.

6 The cases are very numerous.