APPEALS AND ERRORS 293

The first clause of this section is not applicable where the case was tried below
upon an agreed statement providing that the court was to give judgment for the
plaintiff or defendant, according to whether it found the defendant owed the taxes
claimed, the agreement reserving the right of appeal to both parties B, C & A
Ry Co v Wicomico County, 93 Md 127 And see Keller v State, 12 Md 328

The first clause of this section is not applicable to motions to quash the scire facias
issued upon a mechanic's lien claim, for defects apparent on its face Baker v Winter,
15 Md 9

The act of 1862, ch 154, held inapplicable to a case originating before the passage of
said act Cecil Bank v Barry, 20 Md 297

Pleadings, prayers and evidence.

If inadmissible evidence comes in without objection, the question of its admissibility
cannot be raised in the court of appeals Sentman v Gamble, 69 Md 305, Atwell v
Grant, 11 Md 106, Phelan v Crosby, 2 Gill, 462, Hannon v State, 2 Gill, 47

A prayer relying upon a failure of evidence must set it up specifically Reier v
Straus 54 Md 291, Dorsey v Hams, 22 Md 88, Hatton v McClish, 6 Md 417

Prayers held too general Acker v McGraw, 106 Md 559, Shipley v Shilling, 66
Md 565, Kinsey v Minnick, 43 Md 119, Casey v Suter, 36 Md 5, Fel's Point
Sav's Institute v Weedon, 18 Md 328, Hatton v McClish, 18 Md 416, Kent v
Holliday, 17 Md 395, Warner v Hardy, 6 Md 540, Penn v Flock, 3 G & J 376,
Cook v Duvall, 9 Gill, 461, Wheeler v State, 7 Gill, 344, Warfield v Davidson, 8 G & J
214, Mitchell v Ball, 4 G & J 370

Prayers held not too general Yingling v Kohlhass, 18 Md 162, Walter v Alex-
ander, 2 Gill, 212 And see Hatton v McClish, 6 Md 417, Stewart v Spedden, 5 Md
444

A prayer reading, "that so far as claim of compensation" for certain services "is
concerned, the plaintiff is not entitled to recover, " is against the intent of the act of
1825, ch 117 Chipman v Stansbury, 16 Md 159

A prayer must refer to the pleadings in order to raise a question of the pleadings
South Baltimore Co v Muhlbach, 69 Md 406, Baltimore Bldg Ass'n v Grant,
41 Md 569, Dorsey v Dashiell, 1 Md 207, Western Bank v Kyle, 6 Gill, 352
See also, Ward v Schlosser, 111 Md 532, Home, etc, Society v Roberson, 100 Md
88, Baltimore, etc, Co v Wilkinson, 30 Md 230, Stockton v Frey, 4 Gill, 421

When a prayer refers to the pleadings, the sufficiency of the declaration may be
inquired into Object of this section Ward v Schlosser, 111 Md 534

A variance between the allegations and the proof must be set up by objections
to the evidence or by a properly framed prayer Straus v Young, 36 Md 255 See
also, Bull v Schuberth, 2 Md 56, Pennsylvania, etc, Co v Dandridge, 8 G & J 248

In ruling on matters of evidence, the lower court necessarily looks to the plead-
ings, and hence the ruling is deemed to have been made with reference to the plead-
ings, and the point to have been passed upon below so that the court of appeals may
consider it B & O R R Co v State, 41 Md 297, Marshall v Haney, 9 Gill, 259,
Leopard v Chesapeake, etc, Canal Co, 1 Gill, 228

A prayer instructing the jury in substance that under the pleadings and evidence the
plaintiff is entitled to a verdict, held bad, such error was reversible although no
special exception was taken under this section Conowingo Land Co v McGaw 124
Md 649

This section applied in Stembler v Wilson, 175 Md 676, Roach v Zoning Appeals
Board, 175 Md 4, Racing Commission v Jockey Club, 176 Md 86

When prayer wholly excluded defense of one of parties which had evidence to
support it, failure to take special exception not fatal Assumption of defendant's
liability under such circumstances, not such assumption of facts as statute has in view
Buckey v White, 137 Md 131, commented on Louis v Johnson, 146 Md 120

Questions as to the sufficiency of the pleadings must be raised by demurrer—art 75,
sec 97

Special exceptions.

If a prayer is objected to because there is no evidence to support it, or because
it assumes facts, a special exception must be reserved Zell v Dunaway, 115 Md 4,
Stewart Co v Roy, 127 Md 79, Nichols v Meyer, 139 Md 460, Heim v Roberts, 135
Md 608, Sturtevant v Dugan, 106 Md 615, Gunther v Dranbauer, 86 Md 9,
Scarlett v Academy of Music, 46 Md 153, Stillman v Dougherty, 44 Md 385, Gent v
Ensor, 41 Md 24, Baltimore Bldg Assn v Grant, 41 Md 568, Stansbury v Fogle,
37 Md 379, Morrison v Hammond, 27 Md 616 Kent Co v Pardee, 151 Md 72, Lans-
burgh v Fish & Oyster Co, 153 Md 318, Lohmuller Bldg Co v Gamble 160 Md 538
Von Schlegell v Ford 167 Md 591, O'Neill & Co v Crummitt, 172 Md 63

Where the record discloses no objection to the submission to the jury in certain
prayers of the question of contributory negligence, and no special exception was
reserved upon the ground of there being no evidence of contributory negligence, the
judgment will, in view of this section, be affirmed Mullikin v Baltimore, 131 Md 365

Where no special exceptions are filed to prayers at the first trial, and hence the
court of appeals under this section did not pass on the legal sufficiency of the tesi-