[After stating the facts.] — But two exceptions were taken • on the trial, one of which is not noticed in the appellant’s points, and will not he noticed here. The other exception is to the refusal of the judge to allow the defendant to answer the following question, viz: “ Why did you not receive the money ? ” (meaning the nine hundred and twenty dollars, which it appears Judge Aldrich had transmitted to the defendant from California, and which was a part of the demand for which this action was brought). It would have been well enough, I think, to have allowed the question to be answered; although it appears from the case that the defendant had already made an explanation, and had given evidence tending to show that the money had never been sent to him, but which evidence was contradicted by other testimony and disbelieved by the jury. It is impossible to say that the question was in any way material to the defense, without its being made more pointed and definite. We do not speculate upon a general exception of this character, to see if something material might not have grown out of the answer. It is not enough *622that the appellant’s counsel is able to state a case on the argument in which the question might be deemed material. He should do that at the circuit, so that the judge can see its materiality.
The judgment should be affirmed, with ten per cent, damages.
All the judges concurred.
Judgment affirmed, with costs and ten per cent, damages.