is substantially correct. The grounds upon which the court refused it do not appear, but it is evident to my mind that the facts in the case, as I have before intimated, did not entitle the appellant to have it given.

There were six defenses interposed. The first one, a voluntary abandonment by the respondent of the marriage contract, and release of the appellant from the obligation thereof. The next two of them were alleged facts,-that after the date of the contract the respondent became and was a woman of bad reputation for chastity, etc., and that she became and was a common prostitute. The other three relate to the specific acts of adultery and prostitution with which the appellant charged her. There is no pretense but that the defenses that she abandoned the contract, or that she released the appellant from the obligation of it, were not fairly submitted to the jury. Nor any evidence that she became or was, after the date of the contract, a woman of bad repute, or after such date became or was a prostitute. Testimony was given on the part of the appellant tending to show that the general reputation of the respondent for chastity and virtue since the date of the contract was bad; and an offer made to show that it was bad before that time; but there was nothing showing that it became bad after the date of the contract, as alleged in the answer. This may not seem important-the time her reputation became badand yet it is so as a defense to the action. The fact that a woman has a bad reputation for virtue does not entitle a man to violate a contract of marriage he has entered into with her, if he knew what her reputation was when he made the contract; though the fact may be shown in mitigation of damages, where it is offered for that purpose. The appellant claimed that he was relieved from the obligation of the contract for the reasons set out in said two answers, and the evidence he offered was immaterial as a defense, unless in accordance with the allegations therein contained. He probably was not able to deny but that he knew what her reputation was, and had been, at the time of, and prior to, the contract of marriage, and hence it was necessary to allege that it became bad after that date. But, conceding that the evidence offered tended to esablish those two defenses, what was there in the testimony to prove the other three? Evidence of her bad reputation, and that she was a coarse, vulgar woman, would have no tendency to prove that she committed adultery at some particular time and place, "or sold the use of her person." It would be absurd to claim any such thing, and yet, as I understand, that is all there was in the case to establish said defenses. "Probable cause" is supported by evidence which inclines the mind to belief. It is not a mere suspicion; it is something that is proved, not fully, but has more evidence for than against it. What was there in this case to show that the respondent committed adultery on the twenty-fifth day of April, 1885, or the twenty-fifth day of December, 1884, or that she carried on the business of selling the use of her person? Not anything that could be called proof, certainly. If she had been prosecuted for adultery, or for keeping a house of ill-fame, would any court have allowed the case to have gone to the jury on such pretended evidence as the appellant introduced in this case? It is idle to consider such a question. The New York courts, by an unbroken series of decisions, from Southard v. Rexford, 6 Cow. 254, down to the present time, have held that, where the defendant attempts to justify his breach of promise of marriage by stating upon the record, as the cause of his desertion of the plaintiff, that she had repeatedly had criminal intercourse with various persons, and fails entirely in proving such justification, it is a circumstance which ought to aggravate the damages. This doctrine, counsel for the appellant claims, is subject to the qualification set out in the said instruction asked and refused, and I rather think he is right in that view; but I do not see how the distinction can be made in this case, for I do not think that three of the defenses, at least, were interposed with probable cause, or with a reasonable expectation that the appellant could establish them. To vilify and calumniate the re.

spondent by vile charges, which he must have known he could not maintain, ought not to be condoned by a plea that he did it innocently, and without intending harm. But he should make it appear, from evidence submitted upon his part, that he had reasonable grounds to suppose the charges could be established. I do not believe a party defendant, in such a case, should be prevented from setting up what he believed the facts would authorize him to, and that he had reasonable grounds to suppose he would be able to prove; but when he acts upon conjecture only, and alleges matters injurious to the credit and reputation of the plaintiff, upon a mere surmise that they might be true, he abuses the privilege the law confers upon him, of making a defense, and, as said in Southard v. Rexford, supra: "It would be a matter of regret, indeed, if a check upon a license of this description did not exist in the power of the jury to take it into consideration in aggravation of damages." In my opinion, a defense which charges scandalous matter, and is not sustained, in order to avoid the imputation of malice, or, at least, wantonness, which the law would presume, must be founded upon probable cause, supported by proof that distinctly or by necessary inference tends to establish its truth. Any less requirement would encourage an abuse of the privilege the law confers. No such proof having been submitted in this case, or facts shown from which it could legitimately be inferred, the assignment of error in regard to the charge of the court, and refusal to charge as requested, referred to herein, are not sustained. The other grounds of error I do not regard as tenable. The petition for a rehearing should, therefore, be denied.

STRAHAN, J., (concurring.) In disposing of a question of practice which was presented in this case it is said in the prevailing opinion: "The exception taken to the refusal of the court to allow the witness Fred Meyer to answer the question propounded to him is not available. The witness did not answer, and it nowhere appears from the bill of exceptions what fact appellant expected to elicit by the question. To make this exception available, the bill of exceptions ought to have gone further, and shown what it was expected to prove by the answer to this question. And the same remark is applicable to the question propounded to the witness Dr. H. W. Ross, which was excluded." In his petition for a rehearing this statement of the law is questioned by counsel for appellant, which has led to a re-examination of the subject, the result of which is the affirmance of the ruling upon the authority of the following cases: Bake v. Smiley, 84 Ind. 212; Whitehead v. Mathaway, 85 Ind. 85; Jordan v. D'Heur, 71 Ind. 199; Toledo & Wabash R. Co. v. Goddard, 25 Ind. 185; Watson v. Mathews, 36 Tex. 278; Small v. Sacramento Nav. & 'Min. Co., 40 Me. 274; State v. Staley, 14 Minn. 105, (Gil. 75;) Mathews v. State, 44 Tex. 376; Lewis v. Lewis, 30 Ind. 257; Stull v. Wilcox, 2 Ohio St. 569; Hollister v. Reznor, 9 Ohio St. 1; Gandolfo v. State, 11 Ohio St. 114; Gage Manufg Co. v. Parr, 138 Mass. 462; Graeter v. Williams, 55 Ind. 461; Mitchell v. Chambers, Id. 289. The general rule of law which these authorities tend to sustain is thus stated in Graeter v. Williams, supra: "But where a party on the trial of a cause has propounded a question to a witness with a view of eliciting evidence, to which question objection has been sustained by the court, such party cannot, by simply saving an exception to the decision of the court, in sustaining such objection, get error into the record which will be available to him in this court. In such case the party must go further and state to the court in which his cause is being tried, clearly and explicitly, what the evidence is which he offers to adduce, and which he expects to elicit" by the answer of the witness to the question. And in State v. Staley, supra, the rule is thus stated: "To justify a reversal of judgment, the record must show affirmatively material error. When a question is asked which is objected to, and the objection sustained, in taking an exception it should be made to appear what it was proposed to

prove, which must be something material, and the rejection of which as evidence would be prejudicial to the party excepting." And the same principle is enunciated in Gandolfo v. State, supra, thus: "When a question is asked which is objected to, and the objection sustained, in taking an exception there should be a statement of what it was proposed to prove; which must appear to be something material, and the rejection of which as evidence would be prejudicial to the party excepting."

We have given the appellant's petition for a rehearing a careful examination, and find no reasons for modifying the opinion already filed in this case. No new questions are suggested, and those already considered do not require a further examination. A rehearing would only lead to the result already reached by a majority of the court. It should be denied; and it is so ordered.

(7 Mont. 195)

WOODS v. BERRY.

(Supreme Court of Montana. July 29, 1887.)

1. FRAUDULENT CONVEYANCES-SALE OF STOCK OF GOODS-COURT AND JURY.

Where, in action of claim and delivery against a sheriff, it appeared that plaintiff had bought the goods seized, valued at $4,000, by surrendering to the debtor certain notes executed by him, and amounting to several thousand dollars, which notes he had bought for nine dollars, that he kept the goods in the same store, and retained the same clerks, but changed the sign; and the jury found specially (1) that there was no fraudulent intent; (2) that there was actual delivery and a continuous change of possession of the goods; and gave verdict for plaintiff: held, that such verdict would not be reviewed by the court; the facts being capable of an innocent interpretation.

2. PLEADING-COMPLAINT-AD DAMNUM CLAUSE-CLAIM AND DElivery.

In an action of claim and delivery, a complaint which alleges that the plaintiff was owner and in possession of certain goods "of the value of $4,000" is not deficient for containing no ad damnum clause. Loeb v. Kamak, 1 Mont. 153, followed. 3. PARTIES EVIDENCE AS TO PARTY IN INTEREST.

Where, in an action of claim and delivery, it is not denied in the answer that the plaintiff is the real party in interest, and there is no issue on that point, questions put by the defendant, in order to show that plaintiff was not the party in interest, are properly disallowed.

4. EXCEPTION TO INSTRUCTIONS-FORM OF.

An exception to instructions, in general terms, as "the instructions asked for by the plaintiff numbered 1 to 16, inclusive," is insufficient, being too indefinite; following Griswold v. Boley, 1 Mont. 545, and Gum v. Murray, 6 Mont. 10, 9 Pac. Rep. 447. Each instruction should be objected to separately by number. McKinstry v. Clark, 4 Mont. 370, 1 Pac. Rep. 759, distinguished.

Appeal from district court, Missoula county.

Sanders, Cullen & Sanders, for appellant. Sharp & Nopton, for respondent.

BACH, J. This is an action of claim and delivery. The defendant, who was sheriff of Missoula county, in answer to the complaint, admits taking the property; and he seeks to justify the taking by alleging that he seized the property under and by certain writs of execution issued upon judgments in favor of several different parties plaintiff, and against Savage & Reed, defendants; that Savage & Reed were plaintiff's vendors; and that the sale between Savage & Reed and the plaintiff was made without any consideration whatever, and was so made for the purpose "of defrauding and cheating and swindling the creditors" of Savage & Reed.

The testimony shows that the plaintiff bought several notes executed by Savage & Reed, amounting to several thousand dollars; that he paid nine dollars for the same; that thereafter he bought from Savage & Reed the goods mentioned in the complaint, for the price of $6,000, the payment being made by surrendering the notes of Savage & Reed for that amount; that after such purchase and sale the plaintiff kept the goods in the store formerly used by Savage & Reed; that at the time of the sale he removed from the store the sign of Sav

age & Reed, and substituted therefor a sign bearing his own name; that he employed the clerks who were formerly in the employ of Savage & Reed. The plaintiff further testified: "There was no understanding that I was to pay any one any part of what I collected on the notes. I was not to pay anything more than I had paid for the notes. They were placed in my hands without reserve."

The case was tried by the court and jury. Verdict was for the plaintiff, and judgment was entered in favor of the plaintiff. Thereafter, motion for a new trial was heard and denied. The appeal is from the judgment, and from the order denying the motion for a new trial.

Is the evidence in this case insufficient to justify the verdict? The facts in the above summary of the evidence are such that the jury might have found fraudulent intent, or fraud in fact, and some of that evidence might have justified the jury in finding that there was no actual delivery of the property to the plaintiff, or a continuous possession thereof by the plaintiff. The purchase of notes to the amount of several thousand dollars for the sum of nine dollars may have been a cover for fraud in fact, or it may have been a bona fide purchase of the notes by the plaintiff, who took the risk of collecting; he declares that he was the owner, and that there was no agreement between him and the original holders of the notes, or with any one else, to account for the overplus, if any. In the one case it might be evidence of fraud; in the other, there could not be fraud inferred. The fact that he kept the goods in the same store is evidence tending to prove fraud in fact, and also that there was no actual change of possession. The change of the sign was a question for the jury to consider, as was also the employment of the former clerks of the vendors. But these are facts merely tending to prove fraud and want of actual delivery. The jury passed upon those facts; and the jury, by their special verdict in this case, find-First, that there was no fraudulent intent; Second, that there was an actual delivery, and a continuous change of possession, of the goods. This court cannot review that verdict, there being evidence to sustain it.

The complaint alleges that the plaintiff was the owner and in possession of certain goods "of the value of $4,000." The complaint contains no ad damnum clause. For that reason the defendant claims that the complaint does not state facts sufficient to constitute a cause of action. The judgment asked for the return of the property, or, in case return could not be had, then for the value thereof. It has been held by this court that an ad damnum clause is not an essential allegation. Loeb v. Kamak, 1 Mont. 153.

The next point relied upon is the refusal of the court to allow defendant's counsel to ask certain questions for the purpose of showing that the plaintiff was not the real party in interest. It is not alleged in the answer that the plaintiff was not the real party in interest; there was no issue as to that, and the questions were properly disallowed. Savage v. Insurance Co., 4 Bosw. 2. To the instructions given by the court at the request of the plaintiff the defendant took the following exception: "Now comes the defendant, and objects and excepts to giving to the jury the instructions asked for by the plaintiff, numbered 1 to 16, inclusive, and objects and excepts to giving of each and every one of them, for the reason that the same, and every one of them, are contrary to law, and not warranted by the evidence." Is this exception of such a nature that this court can consider it? There have been many decisions upon this point in this court, some of which seem to be conflicting, while as matters of fact they are in harmony with one another, and the seeming inconsistency arises from this cause: that the reasons given for the decision were not distinctly specified. The three leading cases in this territory are Griswold v. Boley, 1 Mont. 545, which has been cited in many others; McKinstry v. Clark, 4 Mont. 370, 1 Pac. Rep. 759, which arises on a different question, and which, while it appears of the former case, still holds that the exceptions were

properly taken in that case; and Gum v. Murray, in 6 Mont. 10, 9 Pac. Rep. 447, which approves Griswold v. Boley.

While considering this proposition, care must be taken to distinguish between these two questions, to-wit: (1) What is the proper manner of taking exceptions to instructions? (2) To what extent must the error complained of be particularly stated in an exception to an instruction? To the first of these questions the case of Griswold v. Boley and Gum v. Murray are specific and direct answers. To the second of these questions the case of McKinstry v. Clark is also a specific and direct answer; and, while it approves the doctrine as stated in the other cases, it holds that the manner of taking the exceptions in that case were in compliance with the rule as stated by those cases, and it also states what is a sufficient pointing out of the error complained of.

Now, let us consider these cases more in detail, commencing with the case of McKinstry v. Clark, and examine the points actually decided in that case. In order to carefully ascertain and point out the distinction, the transcripts in the last two cases have been examined.

In the case of McKinstry v. Clark the appellant saved his exception in this manner: He copied the first instruction given by the court at the request of the respondent, and at the end thereof he took his exception by adding the following words: "To the giving of which instruction the plaintiff excepted." He then copied the second instruction, and took his exception in the same mode and manner. Every exception which he took was taken in that way; in other words, he took a separate exception to each separate instruction. It was decided by the court (1) that the exceptions were properly taken as to manner; (2) that there was a sufficient specification of the error. We will consider the first point further when we consider the other cases. As to the second point decided: Section 281 of our Code defines an exception, and declares what an exception shall contain; and, as far as that definition is concerned, our Code differs from that of California, and from that of every state to whose decisions our attention has been called. Therefore, the rule of practice in that respect must be found in our own Code, without resort to authorities decided upon different and dissimilar provisions.

Section 281 of the Code provides: "The point of the exception shall be particularly stated, except as provided in relation to instructions." etc. It is plain that the intent of the legislature was that, in an exception to an instruction, the point of the exception need not be particularly stated; and so the court declared in McKinstry v. Clark. The propriety of the intent of the legislature becomes manifest when we consider how nearly impossible it would be for counsel, at the end of a protracted trial, to point out particularly in what respect the instruction complained of was contrary to the law, as applied to the particular case, or in what respect it was contrary to the evidence, and to reduce the whole objection in each of its particulars to writing. In some states these difficulties resulted in a rule declaring that instructions will be deemed to have been excepted to. In this territory those difficulties resulted in the declaration contained in section 281, that the point of the exception need not be particularly stated in an exception to an instruction.

We will now consider the first question: "In what manner must an exception be taken to an instruction?" and in connection therewith the cases of Griswold v. Boley and Gum v. Murray.

The manner of taking the exception in those cases is almost identical with that in the case at bar; and the difference between the manner of taking the exception in those cases and that used in McKinstry v. Clark is manifest. In the former cases, including the case at bar, there was one, and only one, exception to several instructions in gross; while in McKinstry v. Clark there was a separate exception taken separately to each separate instruction objected to. The first form or manner of taking exception was declared to be of no