In Montana it is said:

"The amendment to the Code providing that an applicant for a new trial shall give * ** the points in writing, particularly specifying the ground of such motion, while relieving the applicant from preparing a statement, does not contemplate that such grounds shall be specified with any less particularity than formerly." Taylor v. Holter, 2 Mont. 476.

It is held in North Carolina to be good practice to set out the grounds of the exception to the judge's charge in the motion for a new trial, to the end that, upon a fuller reflection, he may have an opportunity to correct the errors, if any, committed by him, and save the party the delay and expense of an appeal. But it is also held that it is not absolutely necessary to do so, because of the requirement of the statute there that the specifications of error shall be made clear in the statement on appeal. Bernhardt v. Brown, 118 N. C. 700, 24 S. E. . 527, 715, 36 L. R. A. 402; Lowe v. Elliott, 107 N. C. 718, 12 S. E. 383.

Without pursuing the subject further, we think it safe to conclude that this court is not under any obligation to wade through the testimony in this case, and determine what objections and exceptions were made upon the trial either to the admission or rejection of evidence; and the court is further of the opinion that the exceptions of counsel to the instructions of the court as a part of the errors occurring on the trial, in order to avail him in the motion or on appeal, should each be stated separately, with so much of the instruction as is objected to, under a separate paragraph in the motion for a new trial. Counsel may generally, on the trial, except to each and all of the instructions given by the court, in order to save some probable objection in the future. Then, upon filing the motion for a new trial, counsel having had time to reflect and to consider what objections, if any, he may desire to urge finally, the same should be so set out in the motion for

a new trial that the court may clearly understand what is relied on as an exception in the case.

In the case now under discussion counsel for the defendant filed his exceptions to the several instructions given by the court, and such exceptions are now on file in this court; but no reference to them is made in the motion for a new trial, and whether reliance is placed upon each and all of the objections to instructions set forth in the written exceptions the court is unable to determine. This method of proceeding seems to be unfair to the court, and is a practice to be condemned. But taking up some of the exceptions as to instructions, I first refer to the sixth objection to part of an instruction in the following language:

"The contract of the captain and owners of the steamer Bertha was to tow the schooner Dora B. from Juneau, Alaska, to Lituya Bay, Alaska. This contract ended when the schooner should be towed into the bay, where it should be in a place of safety, or to the destination indicated in such contract. It seems from the evidence in this case that the Bertha with said tow in charge reached the mouth of Lituya Bay, but failed to take the tow into the bay and leave her there, as required by the contract of towage. It further appears that, instead of doing this, the Bertha continued westerly or northwesterly up the coast of Alaska, taking the tow with her beyond the point originally intended. The steamer Bertha, her master and owners, were at fault, and were wrongfully taking said tow beyond the point of destination, unless the conditions at Lituya Bay were such that they could not enter with safety to the steamship Bertha, her passengers and crew, or the tow; nor could they rightfully take said tow beyond the point of destination unless the conditions at or near the mouth of Lituya Bay were such as to place said steamship, her passengers and crew and said tow, in danger by laying by at that point until such time as the conditions of the weather and the tide would permit her to enter the bay in safety, and thereby complete her contract of towage. If, however, the jury find from the evidence in this case that the steamer Bertha elected to leave the mouth of Lituya Bay with her tow for any cause, and continue northward towards Yakutat, she was under the continuing obligation and duty of using due and ordinary care in taking said voyage with said tow that she was required to exercise on the trip from Juneau to Lituya Bay."

The objection made to the instruction is that it does not fully and correctly state the law, and is erroneous in quoting and commenting upon the testimony, as to which the jury is the sole judge. It will be observed from the instruction itself that no comment is made upon any evidence in the case about which there is any difference of statement among the witnesses. All the witnesses for the defendant as well as for the plaintiff testify to the facts referred to by the court in its statement as to the fact. The court refers to these facts not in dispute in order, that the law controlling the matter in controversy might be the better stated to the jury. Surely there is nothing in law or ethics that requires the court to refrain from stating and commenting upon evidence that is undisputed and is admitted on both sides.

In the ninth objection to instructions the ground of the objection is that the court attempts to present the facts of the case contrary to law, and does not fully and correctly state the law of the case. Again I say the facts referred to in this instruction are not in dispute as far as the evidence goes. The portion of the instruction objected to is as follows:

"It is claimed on the one side that the locus of the wrong or tort. if any was committed by the steamer Bertha under the direction of its captain, had its inception and was in fact committed at the point where the hawser parted and the steamer sailed away, and that such point was more than three miles from the shore of the district, and therefore outside the jurisdiction of this court, and that no relief whatever on the grounds of the complaint of plaintiff can be granted in this action.

"On the other hand, it is claimed that the parting of the hawser and the sailing away of the said steamer Bertha on her said voyage, even if it occurred outside the three-mile limit from shore, and therefore without the jurisdiction of this court, that such breaking of the hawser and sailing away of the steamer Bertha was the mere inception of the wrong or tort, and that the final disaster resulting in the death of Baldwin occurred within the three-mile limit, no matter what the place of its inception; and that by reason of the final disaster occurring within the three-mile limit that this court

has jurisdiction over the cause, and may give such relief and such judgment in the premises as the justice of the case may demand. "Upon this question of the jurisdiction of the court I charge you as the law of this case practically in the language of Judge Morrow, or at least upon the principles stated by Judge Morrow in the case of the Mary Garrett, that it makes no difference whether the tort or wrong had its inception or origin in water without the jurisdiction of this court, if the consequential effect of the wrong, the consummation of the tort, happened within the three-mile limit. It is immaterial, so far as the jurisdiction of this court is concerned, that the tort or wrong originated on waters without the jurisdiction of the court, if the consummation of the wrong happened within the threemile limit of land over which the jurisdiction of this court extends.

"If the jury finds from the evidence in this case that the hawser by which the Dora B. was being towed parted at a point outside of the jurisdiction of this court or outside of the three-mile limit, and you further find from the weight of the evidence in this case that the Dora B. drifted within or came within the three-mile limit of land before the final disaster occurred, and that such disaster occurred within such three-mile limit, then I charge you as a matter of law that the court has jurisdiction of this case; and if you find the facts otherwise sufficient under the instructions given you by the court you may return a verdict for the plaintiff.

"You are further instructed that it is the duty of the towing vessel toward the schooner that is being towed to use that degree of skill, caution, and due care that prudent navigators usually employ in similar service; that this was a continuing duty, one that was never discharged until the tow should be taken into a place of safety, or had passed beyond the reach of succor by the steamer Bertha. And this duty on the part of the steamer as a matter of law could not be avoided unless there was such a storm, such a turbulence of sea, or such other conditions, as rendered it unsafe for the steamer to follow her tow and conduct it from danger, if it was in danger; that the wrongful act of the steamer Bertha, if you find by the evidence it committed a wrongful act, was her failure, if she did fail, to stand by the schooner Dora B. and succor her from danger, if such standing by and succor from danger was reasonably practicable considering the conditions surrounding them. If the steamer so failed to do this, and you so find by the weight of the evidence in this case, until after the schooner Dora B. came or drifted within the jurisdiction of this court, and that the final disaster occurred within such limit, if disaster occurred, from which the deceased, Baldwin, lost his life, then I charge you that this is a wrong for which the plaintiff is entitled to recover in this case, if he may recover at all, without reference to the place of the inception of the wrong."

The objection to this instruction on the ground that the facts in the case were referred to by the court is not well taken, and I do not care to consider that proposition at all. But the one legal question of vital importance in this case is contained in this instruction, viz., if the wrong for which the steamer Bertha, her master and owners, were responsible was the parting of the hawser and the sailing away of the Bertha, leaving the schooner Dora B. to rely wholly upon her own resources to seek a place of safety, and this was the only wrong, and such wrong occurred more than three miles from shore, then, for the reason that the laws of Alaska do not extend to the high seas beyond the three-mile limit from shore, the plaintiff could not recover. If, on the other hand, the court is right in saying that the duty of the steamer Bertha towards its tow is a continuing one, and that this duty was not discharged until the tow was in a place of safety, if the duty of the Bertha continued as long as the little schooner Dora B. was struggling with wind and wave and unable to avoid wreck on the inhospitable Alaskan shore, and her wrong consisted in her failure, as the court instructed the jury, to succor and rescue her tow and continue her efforts in that direction to the time of the final disaster, and the disaster resulted from such negligence and failure, and the disaster and death of Baldwin occurred within the threemile limit of shore, the defendant was liable for such damages as were sustained, then in my opinion there was no error in the instruction. This question was fairly placed before the jury by the instruction of the court, and whether rightfully or through error is before the appellate court for consideration. If, however, the special verdict of the jury, which was in answer to interrogatories propounded by the defendant, can be sustained under the evidence, then this instruction, if incorrect in law, is harmless error, and the verdict would be right and should be sustained, though there was such error in the instruction. But is there error in the instruction?