316 ARTICLE 5

The point that the complainants have failed to establish a material allegation of
the bill, may be made on appeal without exceptions being filed below. Dugan v.
Gittings, 3 Gill, 165.

Where an assignee does not assert his claim by petition, but by exceptions to an
auditor's account, no exceptions are required to be filed to bring the matter up on
appeal. Brown v. Thomas, 46 Md. 641.

The objection to a trustee's sale, that the trustee was not present, does not come under
this section. Wicks v. Westcott, 59 Md. 280.

This section does not apply where the account is stated in accordance with the
instructions of the appellee in order to present his views, and not in accordance with
the views of the auditor. Anderson v. Tuck, 33 Md. 234; Dennis v. Dennis, 15 Md. 76.

This section has no application to an objection to a petition on the ground that
the matters alleged should have been set up by bill. Boteler v. Beall, 7 G. & J. 398.

This section has no application to depositions taken without notice, and filed after
the evidence has been taken, and after a decree for an account and an account
taken. Stockett v. Jones, 10 G. & J. 279.

Generally.

This section is not in conflict with any provision of the Federal Constitution or
of any law of congress passed in pursuance thereof. This section relates to a matter
of state practice alone, and its construction rests with the state courts. Loeber v.
Schroeder, 149 U. S. 580.

This section will not be construed so as to permit parol evidence, not excepted
to below, to make or revoke a will, particularly in the light of art. 93, secs. 336 and
337. Lowe v. Whitridge, 105 Md. 184.

Where the contention is that while the plaintiff's proper remedy is in equity, he
has been given a decree which is different from the one to which he may be entitled,
or that while the bill is adequate to secure the plaintiff's interests, it is an insufficient
basis for the particular relief decreed, this section applies, and if the bill was not
objected to below, no question as to its sufficiency can arise on appeal. A clause in
the answer reserving all lawful objections to errors in the form and substance of
the bill, does not meet the requirements of this section. Equitable Ice Co. v. Moore,
127 Md. 324.

Where a plaintiff files a petition against administrators pendente lite for the appoint-
ment of a receiver, an order being passed accordingly, and some six weeks later files
a petition asking that the order be rescinded, but then abandons the petition last
mentioned and enters an appeal from the order, such appeal is, in view of art. 16,
sec. 4, and of this section, premature. Warfield v. Valentine, 130 Md. 595.

Under this section and sec. 41, where a receiver is appointed upon bill and answer
(consenting thereto), and one who is not an original defendant is subsequently made
a defendant upon his own petition, he cannot in the court of appeals raise the question
of the sufficiency of the bill; he should have first applied to the lower court for a re-
scission of the order appointing a receiver. Under sec. 31, when a receiver is appointed
upon bill alone, the court of appeals in reviewing the order is confined to the case
made by the bill and exhibits. Carrington v. Basshor Co., 121 Md. 75; Warfield v.
Valentine, 130 Md. 595.

While, if no exceptions are filed or the evidence is not in some proper way objected
to at the hearing, a decree may be based on the evidence alone and the defendant cannot
upon appeal rely on the inadmissibility of the evidence under the bill, the plaintiff
cannot rely on the silence of the defendant for any material allegation as an admission
of its truth, but must prove it. Effect of an answer; if insufficient it should be excepted
to. Pennsylvania R. R. Co. v. Minis, 120 Md. 504.

Claims not mentioned in a bill in equity, even though the plaintiffs did not know
of them until informed by the answer and the evidence, will not be passed on, upon
appeal, unless the bill was amended. Minis v. Pennsylvania R. R. Co., 120 Md. 513.

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

Where the plaintiff fails to make out a case both in his bill and on the proof, the
ease will not be affirmed, though no exceptions were filed below. Evans v. Iglehart,
6 G. & J. 199.

This section requires the court of appeals to decide upon the evidence in the record
without reference to the allegations of the bill—whether a variance exists or not, is
immaterial unless exceptions are filed. Reed v. Reed, 109 Md. 695; Shugers v. Shugers,
105 Md. 344; Gerting v. Wells, 103 Md. 637; Schroeder v. Loeber, 75 Md. 202; Braeck-
lein v. Braecklein, 139 Md. 351. And see Loeber v. Schroeder, 76 Md. 349.

Whatever may be the proof, if the allegations of the bill are insufficient and properly
excepted to, no decree can be entered. Berry v. Pierson, 1 Gill, 247.

If no exceptions are filed to inadmissible evidence, it is in the case for all purposes.
Sentman v. Gamble, 69 Md. 304.

If the record does not show that exceptions were filed to inadmissible evidence, the
court of appeals will not reverse. Mondell v. Shafer, 49 Md. 492; Keene v. Van Reuth,
48 Md. 193.