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In jury trials, I have always understood the rule to 1879. be, that if a party objects to a ruling of the presiding Term January judge during the progress of the trial, either in admitting or excluding evidence, or giving or refusing instruc- Danville tions, or otherwise, and intends to except to such ruling, V. he must make known such intention at the time of the Waddill's adm'r ruling, or at least before verdict, and if the bill of exceptions cannot be drawn up at once, liberty should be reserved to do so during the term, and if he neglect to prefer exceptions until after the verdict, he will not then. be allowed to do so.

One of the reasons for the rule requiring this promptness in taking the exception and giving notice thereof, is that an exception taken and made known for the first time at a subsequent period in the trial might affect very injuriously the rights of the opposing party; for, if he have reasonable notice of the exception, he may, perhaps, have it in his power at the time or during the trial to obviate or counteract it, and it would be unjust to allow his adversary to insist on the exception, and have the benefit of it, after, by his own negligence, or it may be by his contrivance, he has made it impossible to meet it.

Such I understand to be the principles deducible from the cases of Wash. & New Orleans Tel. Co. v. Hobson, 15 Gratt. 122, 138; Murtz' ex'or v. Martz' heirs, 25 Gratt. 361; Perry's admr v. Peery, 26 Gratt. 320, 324; Winston v. Giles, 27 Gratt. 530; and Page v. Clopton, 30 Gratt. 415. The rule was not strictly applied in the last-named case, because it was not a proceeding inter partes, and for other reasons stated in the opinion delivered in the case.

The rule is stated quite broadly by Judge Moncure in Winston v. Giles. "Formally and regularly," says he, "a bill of exceptions purports to be tendered and signed when or immediately after the opinion excepted to is given; and certainly, if convenient, the facts could then be set out more accurately and with less difficulty than

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1879. at any other time. It is admitted in all cases, everyJanuary where, that at least the exception must be taken at the time, so as to give notice of it to the adverse party; and Danville some of the cases require that the substance of the exBank ception should be stated in writing at the time."

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Waddill's I am aware that the president of this court, in the opinion in Bull's case, 14 Gratt. 613, 625, 626, speaking of the rule referred to, said: "That if no objection be made at the time the instruction is given, nor an exception be then taken, or the point saved, but objection be made for the first time after verdict, and in the form of a motion to set it aside, the court will consider whether, under all the circumstances, the party has been prejudiced by the instruction; and if of opinion that a just verdict has been rendered, according to the law and the evidence, will not set it aside on account of that objection." And the decision in Stevenson v. Wallace, 27 Gratt. 77, 93, 94, accords with what has just been cited from Bull's case. See also what is said in Johnson v. Macon, 1 Wash. 4, 5; Guerrant v. Tinder, Va. R. (Gilmer) 36, 41.

Whether the general rule which seems to be established by the decisions first before referred to is to be regarded as modified by the cases last named, in its application to instructions to which objection is made for the first time by way of motion to set aside the verdict of the jury, it is not necessary, in my judgment, to determine in the present case; for if the instruction given was liable to exception at all, I think that the plaintiff was precluded by the circumstances already adverted to from making objection after verdict.

But if the bill be regarded as well taken and as properly presenting to this court for decision the question whether the instruction complained of was erroneous or not, I have no difficulty in reaching a satisfactory conclusion.

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The plaintiff's counsel, in his argument before the jury, relied on the fact that the defendant had offered no proof of the character of his testator, Pleasant Waddill, the former defendant, and after the argument of the Danville counsel on both sides had been concluded, the court, of V. its own motion, instructed the jury before they retired Waddill's that the character of the said Pleasant Waddill, as a party to the suit, was not involved in the issue to be tried; that the defendant had no right to introduce proof of the general character of said Pleasant Waddill as a party to the suit (originally); and that the jury should disregard all argument made before them by the plaintiff's counsel, based on the failure of the defendant to introduce testimony as to the general character of said Waddill as such party; and at the instance of the plaintiff's counsel, the court added the following: "That as the said P. Waddill had testified as a witness at a former trial, and as this testimony at said former trial was proved before the jury at the present trial by a witness who had heard it given, the plaintiff had a right at the present trial to introduce evidence before the jury to impeach the said Waddill as a witness by proving his general character."

The argument of the counsel, which the jury were directed to disregard, was evidently based on the assumption that the character of the defendant's testator for honesty and integrity was in issue, as an original party to the cause, and he deduced an inference unfavorable to the defence from the failure of the defendant to offer evidence in support of that character.

This was an erroneous assumption. In civil cases, the rule is, that evidence of general character is never admissible unless the nature of the action involves the general character of the party, or goes directly to affect it, such as an action by the husband or father for seduction, and generally actions of tort wherever the defendant is

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charged with fraud from mere circumstances. This January kind of evidence is rejected wherever the general character is involved by the plea only, and not by the nature of Danville the action. It is not received in an action of assumpsit, Bank although the plea avers fraud by way of defence. To Waddill's this effect are all the standard elementary treatises on evidence. 1 Greenleaf on Ev. §§ 54, 55; 1 Wharton on Ev. § 47; 1 Best on Ev. §§ 257, 258; 2 Starkie on Ev. (Metcalf's ed.), 367 (side p.), et seq; 1 Phillip's Ev. 757, and notes. The authorities, English and American, seem to be uniformly the same way. I content myself with a notice of a few only of the adjudged cases.

Humphrey v. Humphrey, 7 Conn. R. 116, was a case of petition by the husband for divorce from his wife for alleged adultery. After testimony had been given on behalf of the petitioner tending to raise the presumption of adultery on the part of the wife, she offered, by way of rebuttal, evidence of her fair character. Dogget, J., in delivering the opinion of the court, which is often cited, said that in no instance within his knowledge had such evidence been received in any civil proceeding unless character was thereby put in issue. "Causes charging cruelty, gross fraud, and even forgery," he said, "are often agitated in suits by individuals; and the result not unfrequently deeply affects the property and reputation of the party; yet no individual has been permitted to attempt to repel the proof by showing a good reputation. The present is a civil suit. Character is not put in issue by the proceedings; and if it can be given in evidence, it may be given in evidence in all inquiries into facts affecting the reputation in other civil cases. This principle would lead to great uncertainty, and be productive of no benefit in the adminis tration of justice."

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In Anderson's ex'rs v. Long & others, 10 Serg. & R. 55, the action was debt on bond. Fraud of plaintiff's tes

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tator, James Anderson, was one of the defences. Evi- 1879. dence of the character of Anderson for honesty and Term. January integrity was offered. Chief Justice Tilghman, in the opinion of the court delivered by him, said: "The plaintiff's Danville counsel say that the character of James Anderson was put V. in issue here because the defendants accused him of Waddill's adm'r. fraud; but this is not putting his character in issue. By the same mode of reasoning the defendant's character is put in issue in every action of assumpsit, because the declaration changes him with an intent to deceive and defraud the plaintiff. Indeed, in most of the controversies in courts of Justice it may be said, with some degree of truth, that character is in question, because an honest man would not act with injustice. But putting character in issue is a technical expression and confined to certain actions, from the nature of which the character of the parties, or some of them, is of particular importance. Such is the action brought by one man against another for seducing his wife and having criminal conversation with her. * So in an action of slander the plaintiff in his declaration asserts his own good character, and avers the intent of the defendant to rob him of it. He puts his character in issue, therefore, and the defendant is at liberty to impeach it. But it has never been supposed that character is put in issue merely by the charge of fraud made by one party against the other."

In Nash & others v. Gilkeson & others, 5 Serg. & R. 352, the action, as in the present case, was assumpsit; and the plaintiff's having given evidence which, the defendants supposed, tended to impeach the honesty of Gilkeson, their testator, they offered evidence in support of his character, which was admitted. Gibson, J., speaking for the court, said: "There cannot be the least doubt but the evidence was improperly received. Gilkeson's general character was not put in issue by the nature of the action; VOL. XXXI-61.