dissenting.
As it is cpnceded that the question upon which the judgment is now reversed was not saved in the court below, I am con-, strained to dissent. In my opinion the error, if any, was a mere question of mode of procedure, involving no want of jurisdiction ratione materia, even conceding that the presence of a question of such a character would authorize this court to reverse — in the absence of any exception in the court below— or any reference to the question in that court.
Mr. Justice' McKenna concurs in this dissent.