294 ARTICLE 5

mony, this question may be passed upon on a second appeal, no inference from
remand of case Dorsey v Winters, 143 Md 410, 422

If a prayer is objected to because it omits an essential fact, the point must be taken
by special exception Cheney v Eastern, etc , Line, 59 Md 568, Franklin v Claphn,
49 Md 42

The objection that a rejected prayer assumes a fact, may be raised in the court
of appeals, though no special exception was reserved United Surety Co v Sum-
mers, 110 Md 121, Dexter v McDonald, 103 Md 398, Mylander v Beimschla, 102 Md
692, Newman v McComas, 43 Md 70, Gent v Ensor, 41 Md 24

If a prayer is objected to on the ground that it submits a question of law to the
jury, a special exception must be taken Rasst v Moms, 135 Md 259, Cushwa
v Williamsport, 117 Md 314, Sturtevant v Dugan, 106 Md 615, New Windsor v
Stocksdale, 95 Md 214, Eckenrode v The Chemical Co, 55 Md 66, Stockham v
Stockham, 32 Md 209, Higgins v Carlton, 28 Md 140, Asphalt Block and Tile Co v
Klopper, 152 Md 533

A special exception to a prayer because it "assumes certain facts," is too general
Shriver v State, 65 Md. 284 See also B & O R R Co v Mali, 66 Md 53

A special exception to a prayer on the ground merely that there is no evidence
legally sufficient to support the same, is defective Havens v Reach, 139 Md 484

To be considered, special exceptions must be incorporated in the Bill of Exceptions
Albert v State, 66 Md 334, Asphalt Block and Tile Co v Klopper, 152 Md 533

But the special exception need not be in writing nor form the subject of a separate
bill of exceptions, provided it appears from the record that it was duly made and passed
upon Moses v Allen, 91 Md 53, Davidson Co v Miller Co, 122 Md 134

Where there is no proof that plaintiff was qualified to engage m business, question
of submission to jury of whether injury disabled her from engaging m business for
which otherwise she would have been qualified, should be raised by special exception
White v Parks, 154 Md 201

Special exceptions must be taken during progress of trial so prayer can be amended,
no application to oral exceptions later reduced to writing Kahn v Carl Schoen Silk
Corp , 147 Md 528

In absence of special exception, objection that prayer submitted hypothesis of which
there was no legal evidence, could not be considered on appeal A & P Co v Noppen-
berger, 171 Md 395

Lack of evidence to sustain prayer granted at plaintiff's request not available to de-
fendant on appeal in absence of special exception Mangione v Snead, 173 Md 50

Jurisdiction.

Though the question of jurisdiction is not raised below, it may be raised on appeal
Armstrong v Hagerstown, 32 Md. 56, White v Solomonsky, 30 Md 588, Homer v
O'Laughlin, 29 Md 470, U S Express Co v Hurlock, 120 Md 111

But m a proceeding before a justice of the peace under art 52, sec 9, the question
of jurisdiction on the ground that title to land is involved, must be raised before the
justice in order to be considered on appeal Shipler v Broom, 62 Md 320

If the lower court is without jurisdiction, though that question was not raised below,
its action may be reviewed by the court of appeals, as this section does not apply
Close v So Md Agr Assn, 134 Md 633.

Questions not raised below, not considered on appeal.

Where no objection to a bond is made in the lower court, a motion to quash the
writ of replevin on the ground that the bond is not that of the plaintiff, must be
denied, cases where the court is exercising a special statutory jurisdiction, distin-
guished Burner v Cunningham Piano Co , 135 Md 144

Under this section and sec 86, where no question is raised below by motion in
arrest of judgment or otherwise, a new trial will not be granted because a verdict did
not discriminate between the count of an indictment charging robbery and that charging
receiving stolen goods Novak v State, 139 Md 542

Whether the failure of a prayer to leave to the jury the question of whether a party
acted as the agent of another, be regarded as an assumption of fact or as the omission
of a material fact, no advantage can be taken of it on appeal if no similar objection was
made below Cases reviewed Lewis v Schlichter Co , 137 Md 222

The failure to file a replication may not be raised for the first time on appeal Query,
whether this question was raised by a general objection to evidence so as to
call attention to the pleadings Errors and irregularities waived Jenkins v Spedden,
136 Md 644

Although a prayer was defective m permitting a verdict against both defendants
for the negligent act of one of them, no objection having been made to the prayer
on that ground in the lower court, the question cannot be raised on appeal, judgment
affirmed Buckey v White, 137 Md 131

Remarks of trial judge, not excepted to, not considered on appeal Brill v State,
144 Md 74

Instruction of trial court not objected or excepted to below, not subject to review on
appeal Moore v State, 149 Md 300, Price v State, 159 Md 496