author: Mr.'Justice Stewart,

text:
    Canole v. Allen, Appellant.

      Appeals — Assignments of error — Review on error unassigned — Evidence — Permitting husband to testify against wife — Act of May 23, 1887, P. L. 158.
    Ordinarily an appellate court is not concerned to inquire into errors committed on the trial of a case not specifically assigned for review.
    Where the record shows departure from established rules and procedure, affecting only the rights of the .parties to the action, and no specific complaint is made with respect thereto, the court will assume that the departure was made by and with mutual consent — conventio legem vincit.
    Where the departure manifests a clear disregard of recognized public policy, or is a violation of express statutory provisions, the appellate court will take notice of the error whether assigned or not. Restrictions so imposed are not subject- to the pleasure of the parties or the power of the courts.
    The court will take notice of such a flagrant error as permitting a husband to testify against his wife, although the error is not covered by any assignment.
    At common law husband and wife are incompetent to testify against each other. This rule has never been relaxed; on the contrary, it has been re-enforced and guarded from invasion by statutory enactment.
    The Act of May 23, 1887, P. L. 158, defining competency, is more than confirmatory of the common law rule; it declares in express terms that neither husband nor wife shall be permitted to testify against each other.
    The parties to a suit and the trial judge as well are bound to take notice of this prohibition. Connivance by the parties cannot avoid it nor can indulgence by the court.
    In an action of trespass against a husband and wife, where it is admitted that the actual trespass was committed by the husband, and the husband is called as for cross-examination for the sole purpose of testifying against his wife, it is reversible error for the court to permit him to testify that he was acting as his wife’s agent in the commission of the trespass; and the court will take judicial notice of such error whether it was assigned as error or not.

      Trespass — Damages—Husband and xoife — Evidence—Question for jury.

    In an action of trespass against a husband and wife for the wrongful removal of a building which they had erected on a plaintiff’s lot under a mistaken belief as to title, where the husband called as for cross-examination testifies that the lot with the building on it was worth seven times the value of the lot without the building, it is reversible error for the court to give binding instructions to the jury that they should return a verdict for the plaintiff for the difference between the value of the lot with the building on it, and the value of the lot without the building, according to the estimates of value made by the husband in his testimony. The amount of the damages in such a case is a question for the jury and not for the court.
    Mitchell, C. J., dissents.
    Argued April 14, 1908.
    Appeal, No. 26, Jan. T., 1908, by defendants, from judgment of C. P. Luzerne Co., Feb. T., 1906, No. 441, on verdict for plaintiff in case of John F. Cañóle v. Walter J. Allen and Jennie A. Allen.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Trespass to recover damages for the alleged wrongful removal of a dwelling house from plaintiff’s land. Before Wheaton, J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff for $2,300. Defendants appealed.

      Error assigned among others was (6) answer to plaintiff’s point, quoted in the opinion of the Supreme Court.

      M. J. MulhaU, with him John MoGahren, for appellants.

      John T. Lenahan, with him Jmnes L. Lenahan, for appellee.
    June 23, 1908 :
   Opinion by

Mr.'Justice Stewart,

This controversy has its origin in a disputed title to a lot of ground at Harvey’s Lake. The appellants, Walter A. Allen and Jennie A., his wife, were in possession of the lot, claiming under a tax title in the wife’s name. Trusting, unwisely as it turned out, in the sufficiency of this title, they proceeded to erect a building on the lot, the husband actively participating in and superintending the work. Before the foundations had been completed Canole, the appellee, learning that work was being done by someone on the lot, went to the premises and there had an interview with the husband, in the course of which he asserted his ownership, and warned Allen against proceeding further with the building. The Allens proceeded notwithstanding to complete the building. After its completion Canole brought ejectment. He was successful in the court below and in the Superior Court on appeal taken. A writ of habere facias followed, and re-entry was made thereunder. But the two-story frame dwelling which the Allens had built upon the lot, and which Canole saw when he last visited the premises, was then missing. As soon as the record in the ejectment suit had been returned from the Superior Court, Walter A. Allen, the husband, with an expedition that frustrated the injunction process which the plaintiff had invoked, had moved the building bodily from its foundations over upon an adjoining lot. Thereupon the plaintiff, possession of the lot having been restored to him, began the present action to recover damages.

The case as tried in the court below presents some very peculiar features, which are but feebly disclosed in the assignments of error. Ordinarily we are not concerned to inquire into errors committed on the trial of a case not specifically assigned for review. Where the record of a case shows departure from established rules and procedure, affecting only the rights of the parties to the action, and no specific complaint is made with respect thereto, we assume that the departure was made by and with mutual consent — conventio legem vincit. Not so, however, where the departure manifests a clear disregard of recognized public policy, or is in violation of express statutory provisions. Bestrictions so imposed are not subject to the pleasure of the parties or the power of the courts. In such case this court will take notice of the error whether assigned or not. The present case serves as an example. While involving questions both of law and fact, it was tried by the court just as though there had been a written submission .filed, dispensing with the jury. The trial judge determined what the facts of the case were, and the only office performed by the jury was to return perfunctorily the verdict which he directed. This fact is without special significance except in connection with a single assignment to be considered later, and is referred to here only that the method observed on the trial may be the better understood. The action was trespass against the husband and wife jointly. The wife was not present when the trespass was committed. A recovery against her could be allowed, of course, only as it was shown that the husband who committed the trespass was, in so doing, the wife’s agent. The whole case against the wife turned upon the question of the husband’s agency. To establish it, the plaintiff called-the husband to the stand to testify as under cross-examination; and was permitted to show by him that in removing the building from the plaintiff’s lot he was acting for the wife as her authorized agent. Outside the testimony of the husband, elicited in the manner stated, there was not a particle of evidence that the wife had any part in the removal of the building, or had any knowledge that it had been removed. Indeed, the husband was the only witness called by the plaintiff; he rested the whole case, in all its parts, upon, the enforced testimony of this single witness. On such evidence a recovery against the wife was not only permitted, but was ordered by the judge; and that too for an amount more than seven times as great as the value of the plaintiff’s lot. The evidence was admitted under objection, but its admission, strange to say, is not assigned as an error. The error is too plain and palpable to escape notice even without an assignment to bring it to our attention; and since it involves a most serious transgression of a fundamental policy which 'has endured as long as our jurisprudence, and which instead of suffering impairment or modification by reason of changed conditions, has been reinforced by legislation, it becomes our duty not only to notice it, but reprobate it. At common law husband and wife are incompetent to testify against each other. This rule has never been relaxed; on the contrary, it has been reinforced and guarded from invasion by statutory enactment. Our Act of May 23, 1887, P. L. 158, defining competency, is more than confirmatory of the common-law rule; it declares in express terms that neither shall be permitted to testify against the other, a prohibition of which both the parties to the suit and the trial judge as well, are bound to take notice. Connivance by the parties cannot evade it, nor can indulgence by the court. The language of the act is: “Nor shall husband or wife be competent or permitted to testify against each other: ” Sec. 5. It is unnecessary to note the exceptions to this provision. "We are here considering a case where the husband was called for no other purpose than to testify against his wife. The purpose was as manifest as though it had been avowed. The fact that he was called by the plaintiff may not have been conclusive as to the purpose, since the right of the plaintiff to call him as under cross-examination to elicit testimony affecting only himself, may be conceded. But his participation in the removal of the building was not questioned; the whole object of the case was to involve the wife and make her estate liable. Having shown by the witness that he had removed the building, the examination should have been halted right there. Nothing he testified to on this subject gave rise to any inference of the wife’s participation. His examination was allowed to proceed in the most direct and positive way to establish as an independent fact the husband’s agency for the wife. There are cases, notably Ballentine v. White, 77 Pa. 20, where it is held that where either husband or wife is called to testify for the other, if upon cross-examination a fact is elicited adverse to the party calling, such fact may properly be considered in the case, since this was a necessary risk incident to the right to call. But the distinction between these cases and the one we are considering is wide and plain. Here the witness was not called by the wife to testify in her behalf, but adversely, and as under cross-examination. This was allowed bec'ause he was a party. Suppose he had not been a party, could the plaintiff have made him a witness against the wife ? Certainly not. How then does the fact that he was a codefendant alter the case? In no respect at all, except that the plaintiff, in calling him, could not be regarded as accrediting him, and was at liberty to conduct the examination as though it were a cross-examination. The disability to testify against the wife must be the same in either case. In allowing this examination of the witness to establish the wife’s participation in the trespass, serious error was committed. But this was not the full extent of the error. We have said that the plaintiff’s whole case was» made to rest upon the testimony of the husband. The other important feature was the amount recoverable, the trespass having been established. The husband was cross-examined with reference to it, and there is not a syllable of evidence on the subject of damages except what was enforced out of him by this method. He testified that the value of plaintiff’s lot immediately after removal of the house he had erected, was $350; that the value of the lot with the house upon it was $2,650. Upon this testimony, and this alone, the trial judge directed the jury to return a verdict for the plaintiff for $2,300, the actual difference. The admission of this evidence was quite as flagrant a disregard of the law as was that with respect to the matter of agency. It was directed against the wife, and its only purpose was to charge her estate. It is in connection with this feature of the case that we have the only assignment of error that can be sustained, and, indeed, the only one that touches even remotely upon the real error. The plaintiff submitted the following point: “ Under the undisputed evidence in the case the verdict must be for the plaintiff and against the defendant for the sum of $2,300.” The affirmance of this point constitutes the fifth assignment of error. It hardly calls for discussion. Not only was the evidence on which it rested wholly and absolutely incompetent, as against the wife, but even were it otherwise, if the evidence had come from a competent source, its consideration would have been for the jury. While it may be regarded as an admission by the husband, and therefore conclusive against himself, requiring no submission; as against the wife, it was but an expression of an opinion. The fact that defendant offered nothing against it did not establish it as a matter of law for the court to so declare. It is nothing to the purpose to say that the result would not have been different had the case been submitted. How are we to know it would not, except as we assume that the jury would have given the same credit to the witness as did the judge, and put the same construction upon his language ? These are considerations peculiarly and exclusively for the jury. Besides, it is not a question of result, but of method in reaching a result. There is only one correct method when the testimony is oral, and especially in cases where damages are to be liquidated, and that is through the deliberate action of the jury. True, the defendant did not specifically ask that the question of damages should be submitted. Such fact has been allowed in some cases to avert reversal; but this is not a case which calls for any effort to save it through any relaxation of established rules. . The law gave to this plaintiff the ownership of the house which the defendant built on his lot unwittingly. Assuming that it was removed by these defendants, after they learned of their mistake, they are answerable to the extent of the injury they have done the plaintiff’s freehold, by removing the improvements they themselves had built thereon. The trial judge determined this injury to be more than seven times the value of the plaintiff’s lot and required the jury by their verdict to say the same. If the plaintiff is actually entitled to recover this sum, let it be so determined in the only regular way, by the unfettered and deliberate action of a jury.

The sixth assignment of error is sustained.

Judgment reversed and a venire facias de novo awarded.

Mitchell, C. J., dissents.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Walsh, Appellant, v. Pennsylvania Railroad Company.

      Negligence — Railroads—“Stop, look and listen” — Grade Crossing-Contributory negligence — Evidence.
    The duty of being observant and careful in crossing the track of a railroad does not cease with the mere act of stopping, looking and listening at some point at a safe distance from the track, but continues so long thereafter as danger is reasonably to be apprehended which by proper care can be avoided. One may not determine for himself that point of observation, and because there he neither sees nor hears warning, advance heedlessly upon the tracks of the railroad, without incurring responsibility for any disaster that may ensue.
    The duty to be observant continues so long as danger threatens. If between the point where the party stops, and the tracks of the railroad, the situation affords opportunity to discover an approaching train, and injury results because of disregard of such opportunity, the original act of stopping cannot operate to relieve the injured party of contributory negligence.
    In an action by a woman against a railroad company to recover damages for personal injuries sustained at a grade crossing at about 7:30 p. m. of a September evening, a verdict and judgment for defendant will be sustained, where the evidence shows that plaintiff was familiar with the crossing, that had she looked at a point thirty-five feet from the center of the track on which the collision occurred, she could have seen the approaching engine at a distance of 740 feet from her; that instead of advancing slowly and carefully from that point, she started her horse at a trot, passing a point of wider view, committed herself to the tracks, and was struck by an engine with its headlight lighted.
    Argued April 15, 1908.
    Appeal, No. 130, Jan. T., 1908, by plaintiff, from judgment of C. P. Luzerne Co., Dec. T., 1904, No. 714, on verdict for defendant in case of William P. Walsb, Executor of the Estate of Mary Iiayden, deceased, v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Wheaton, J.
    The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions for defendant.
    Yerdict and judgment for defendant.. Plaintiff appealed.

      Error assigned was in'giving binding instructions for defendant.

      James L. Lenahan, with him Joseph A. Mulhern, for appellant.
    If the plaintiff made a stop and observation at a place recognized by travelers on that road as the proper one, and that she then proceeded with her team and was struck on the crossing without making another stop, the case is for the jury: Toban v. Coal Co., 24 Pa. Superior Ct. 475; Ayers v. Pitts., etc., Ry. Co., 201 Pa. 124.
    Whether, if having stopped at. the usual place, she should have stopped again, or, without stopping, should have seen in time to avoid injury, is a question of fact for the jury and not of law for the court.: Coolbroth v. R. R. Co., 209 Pa. 433; Armstrong v. R. R. Co., 212 Pa. 228; Beach v. R. R. Co., 212 Pa. 567; Newman v. R. R. Co., 203 Pa. 530; McNeal v. Pitts., etc., Ry. Co., 131 Pa. 184; Davison v. Lake Shore, etc., Ry. Co., 171 Pa. 522; Messinger v. R. R. Co., 215 Pa. 497.
    The rule that one who goes in front of a moving train which he must have seen if he looked should be held guilty of negligence, is in its nature a rule applicable only to clear cases, where the conclusion to be drawn from the facts and circumstances is irresistible : Muckinhaupt v. Erie Railroad Co., 196 Pa. 213; Cromley v. R. R. Co., 208 Pa. 445; McNeal v. Pitts. & W. Ry. Co., 131 Pa. 184.

      John MeGahren, with him II. W. Palmer, for appellee,
    cited: Gangawer v. R. R. Co., 168 Pa. 265; Myers v. R. R. Co., 150 Pa. 386; Blotz v. R. R. Co., 212 Pa. 154.
    June 23, 1908:
   Opinion by

Mr. Justice Stewart,

Mrs. Mary Hayden, the original plaintiff in the case — deceased since the result in the lower court was reached — a widow of about middle age, was injured by a passing train while attempting to cross the tracks of the defendant company in an open wagon — she herself driving — at a public crossing in the city of Wilkes-Barre. The accident occurred about 7:30 of a September evening. The plaintiff was engaged in farming; and in marketing her products had long been accustomed to cross the tracks of the railroad at this point, both in daytime and at night. She admitted to being perfectly familiar with the conditions and surroundings there existing. She testified that on this particular occasion, before attempting to drive across the tracks, she stopped at a point twenty feet distant from the first track, which was a switch or siding, and forty-one feet from the center of the track beyond, on which the collision occurred, and that she there looked and listened for the approaching train. Prom the point where she stopped an unobstructed view of the tracks is afforded for a distance of 440 feet. The view enlarges with nearer approach to the tracks, until at a distance of ten feet from the track on which the plaintiff was injured it takes in nearly 1,000 feet. The plaintiff having testified that she stopped, looked and listened, but neither heard nor saw any. indication of an approaching train, she was asked, “ Then what did you do % ” Her answer was : “ Well, I took the line, give the horse a little whip and she go and I come over all right in the first track.” Her examination proceeded, “ Q. That is the switch ? A. Railroad track anyway. Q. First track you went over all right ? A. Railroad tracks and before I come to second I guess I pretty near over, I see lights on the engine coming, after that I know nothing more any more myself.” Upon cross-exam-* ination her testimony with respect to this matter was as follows : “ Q. When you were going across this track that the train was on just before you were struck, how was the horse going, walking or trotting? A. Trotting. Q. Was he trotting or walking when he crossed there ? A. He go quick, you know. Q. Then he was trotting, that is, running ? A. Not very fast. Q. But he was ón a slow jog or trot — the horse was going along trotting? A. Yes, sir, fast, not slow. Q. When he was going across the switch — you know where the switch is? A. Yes, sir. Q. And then he trotted along, did he, after you struck him with the whip the horse jogged along ? A. He go, you know, I go on. ■ Q. Fast ? A. So middle fast. Q. Then you didn’t stop any more until the train struck him, did you ? A. I come over all right in the first track. I pretty near over the second track, I looked up this way see the light of the engine, and as soon as I see the light from the engine I been gone. I know nothing more any more after.”

• The duty of being observant and careful in crossing the track of a railroad does not cease with the mere act of stopping, looking and listening at some point at a safe distance from the track, but continues so long thereafter as danger is reasonably to be apprehended which by proper care can be avoided. One may not determine for himself that point of observation, and because there he neither sees nor hears warning, advance heedlessly upon the tracks of the railroad, without incurring responsibility for any disaster that may ensue. The duty to be observant continues so long as danger threatens. If between the point where the party stops, and the tracks of a railroad, the situation affords opportunity to discover an approaching train, and injury results because of disregard of such opportunity, the original act of stopping cannot operate to relieve the injured party of contributory negligence: Muckiühaupt v. Erie Railroad Co., 196 Pa. 213. It is unquestioned that had this plaintiff looked at a point thirty-five feet from the center of the track on which the collision occurred, she could have seen the approaching engine at a distance of [¶] feet from her. Instead of advancing slowly and carefully from the point where she says she stopped, she started at a trot, passing the point of wider view, and, as her counsel puts it, committed herself to the act of crossing the tracks, continuing as she proceeded at the same rapid rate. Now, notwithstanding she says that she continued to look and listen as she advanced, and failed to see the train approach, and however earnestly and honestly she believed she had done so, her statement to this effect is simply incredible. Had she looked at any time after starting from her point of observation, she must have seen the train as it approached. She clearly and distinctly testified that she saw or heard nothing until the moment her wagon was struck — -that she looked up, saw the headlight and instantly was struck. The evidence admits of no other conclusion than that expressed by the learned trial judge in giving binding instructions in favor of the defendant . — either seeing the train, the plaintiff thought she had opportunity to get ácross and ventured; or, that with the train in full sight, with its headlight lighted, and with an arc light overhead at the crossing, and with every opportunity to see if she had looked, she did not look. In either case her contributory negligence would be so apparent that it became the duty of the court under the admitted facts to give binding instructions for the defendant. The case is governed by the principle announced in Carroll v. Penna. Railroad Co., 12 W. N. C. 318, and so often since repeated that it is unnecessary to cite the cases supporting.

Judgment affirmed.


text:
    Dillon v. Hegarty, Appellant.

      Equity — Equity practice — Equity jurisdiction — Amendment—Defective prayer — Obligation for payment of money — Cloud on title — Deed—Insufficient description.

    Where the averments of a bill in equity together with a paper purporting to be a deed attached to the bill, show that the real purpose of the bill was to remove a cloud on title, and the averments of the answer also disclose that this was the purpose, but the prayer of the bill asks only that the instrument in question be declared a simple obligation for the payment of money, the court may after the closing of the evidence permit the plaintiff to substitute a prayer that the instrument be declared null and void, and stricken from the record as a cloud upon plaintiff’s title. Such an amendment includes no new cause of action, and cannot prejudice the defendant; and this is especially so if the court gives him opportunity to offer additional evidence, and even proposes a continuance for such a purpose.
    A court of equity will declare null and void, and strike from the record as cloud upon title, a paper purporting to be a deed of conveyance of fifty acres of mineral lands, where the instrument contains no description whatever of the fifty acres, except that it was a part of a tract four times as great.
    Argued April 20, 1908.
    Appeal, No. 310, Jan. T., 1908, by defendants, from decree of C. P. Clearfield Co., Dec. T., 1905, No. 3, on bill in equity in case of Ida Dillon, widow, and other heirs of John B. Dillon v. A. L. Hegarty and W. W. Hegarty.
    Before Mitchell, C. J., Fell, Brown, Potter and Stewart, JJ.
    Affirmed.
    Bill in equity to cancel a paper purporting to be a deed and to remove cloud on title. Before Gtllan, P. J., specially presiding.
    The opinion of the Supreme Court states the case.
    The court entered a decree declaring the instrument in writing in controversy null and void, and directing it to be stricken from the record as a cloud upon plaintiff’s title.

      Error assigned was the decree of the court.

      TJíos. II. Murra/y, with him Singleton Bell, II. B. Ilartswiclc, Jas. P. OBaugldin and Uazcurd Alex. Murray, for appellants.
    The paper was good as a conveyance: Shephard’s Touchstone, 93; Coke on Littleton, 46; Green v. Biddle, 21 U. S. 1, 76; Schriver v. Cobeau, 4 Watts, 130; Drusadow v. Wilde, 63 Pa. 170, 172; France’s Estate, 75 Pa. 220, 224; Weakland v. Cunningham, 7 Atl. Repr. 148.
    Where there is designation of number of acres, but not of location, grantee can elect any part of the larger defined body or tract of land: Brotherton v. Livingston, 3 W. & S. 334; McCord v. Bergautz, 7 Watts, 487; Everhart v. Dolph, 133 Pa. 628; Krider v. Lafferty, 1 Whart. 303, 317; Beegle v. Wentz, 55 Pa. 369, 375; Tryon v. Munson, 77 Pa. 250, 259.

      The paper is in any event an obligation for payment of money and binding on the appellees.
    The amendment was not proper : Howard v. Olyphant Borough, 181 Pa. 191; Clark v. Natural Gas Co., 184 Pa. 188; Chambers v. Waterman, 2 Legal Gaz. 129; Jones v. Wadsworth, 38 Legal Int. 416; Toomey v. Hughes, 25 W. N. C. 66.

      Cyrus Gordon, with him B. F. Chase and Harry Boulton, for appellees.
    The paper is not good as a conveyance of real estate: Mellon v. Davison, 123 Pa. 298; Soles v. Hickman, 20 Pa. 180; Fallon on Conveyances, p. 156, sec. 130; Peart v. Brice, 152 Pa. 277; Miller v. Smith, 33 Pa. 386; Smith v. Stevenson, 204 Pa. 194.
    The right of selection to locate a tract of land not described in a deed by the owner, exists only in cases where it is specifically granted.
    The amendment was properly allowed: Weaver v. Iselin, 161 Pa. 386; Danzeisen’s Appeal, 73 Pa. 65; Darlington’s Appeal, 86 Pa. 512.
    June 23, 1908:
   Opinion'by

Mr. Justice Stewart,

The bill filed in this case contains averments which, if true, show a clear case for equitable relief, but not the specific relief asked for in the prayer of the bill. If the instrument which gave rise to the dispute is simply an obligation for the payment of money, it is difficult to see how it could be a cloud upon plaintiff’s title to' the land; and if that is all it is, it is quite as difficult to see how a court of equity could relieve against it. Whether it is an enforceable pecuniary obligation, and if so, how much is owing upon it, are questions to be settled in a common-law action. The instrument purports to be a conveyance of real estate, that is to say, of mineral rights severed from the surface; it has been recorded as a deed, and the defendants are claiming under it as a sufficient legal title to fifty acres embraced in the larger tract owned by the plaintiffs. The bill discloses this, and yet the only relief asked was, that the instrument be declared a simple obligation for the payment of money, and that the amount due thereon, if anything, be ascertained and determined by the court. The answer shows a much more accurate apprehension of the real issue, and after asserting that disputes have arisen as to the legal effect of the recorded instrument above mentioned, and as to the estate owned by the defendants in said land, and the precise location upon the ground of the fifty acres, gives assent to the same being determined in this proceeding, that litigation may be avoided and titles quieted. The case was heard on bill, answer and evidence, but it was not until the evidence was closed that the plaintiffs asked leave to amend prayer for relief. The amendment proposed, and allowed by the court, was a substitute for the original prayer, and was as follows: first, that the court decree that the paper mentioned in paragraph two of the bill, dated February 22, 1877, and recorded, is null and void as a conveyance either by deed or mortgage; and second, that it be stricken from the record as a cloud upon plaintiffs’ title. The action of the court in allowing the amendment was excepted to, and is here assigned for error. The principal objection urged was that the amendment introduced a new cause of action. But this is clearly a mistaken view. The cause of action as set out in the bill admits of no other relief than that indicated in the amendment. What was complained of was, that the recorded instrument was a cloud upon the plaintiffs’ title, and the action was brought to have the cloud removed. The defendants in their answer recognize this as the purpose, and agree that the question shall be determined in this proceeding. The amendment was certainly at variance with the theory of the plaintiffs as to the nature of the recorded instrument when the bill was filed; but this is of no consequence so long as it introduced no new fact, and left the cause of action the same. Before allowing it the trial judge gave every opportunity to the defendants to offer additional evidence, and even proposed a continuance of the hearing to a subsequent date if defendants so desired. In view of the real question involved, and the only one, it is impossible to see how the defendants could have been prejudiced by the amendment’. The whole case turns upon the question whether the recorded instrument which was claimed to be a cloud upon the plaintiffs’ title, could operate as an efficient legal conveyance of an interest in the land. The defendants insisted that it could, and were claiming under it; the plaintiffs contended it was ineffectual as a deed, and because defendants were asserting the contrary, it was a cloud upon their title exposing them to vexatious litigation. This was the issue, and the only question was one of law, to be determined by the court from an inspection of the instrument itself. The paper that gave rise to the dispute reads as follows: “Know all men by these presents, that I, John B. Dillon, of Clearfield county, Pa., in consideration of the sum of six hundred dollars, to me in hand paid or secured to be paid, by John Clark, of "Williamsport, Pa. (it being the same six hundred dollars due from me, the said John B. Dillon, to the said John Clark, referred to in an article of agreement dated February 1st, A. D. 1877), have granted, bargained, sold and transferred unto the said John Clark, his heirs or assigns, all the right, title, interest and benefit in and to fifty acres of mineral land, or in other words, the proceeds and benefits of the mineral of fifty acres of land, said fifty acres of land is situate in Becearia township, Clearfield county, Pa., and in that part of the Abraham Witmer and Thomas Ketland, situate on the north side of Turner Run, and the same piece of land allotted to me, the said John B. Dillon, in a division made by the Weston lands as by article of agreement before referred to and dated February 1st, A. D. 1877. Witness my hand and seal this February 26th, A. D. 1877, signed, John B. Dillon seal.”

The defendants claim under the John A. Clark mentioned in the above paper, and their contention is that this paper vested in Clark and his assigns, a freehold interest in fifty acres of mineral land out of the larger track owned by Dillon, with the right in Clark — now in them — to locate and determine the lines and boundaries. The learned trial judge held that the description of the land which was the subject of the conveyance, was so defective and imperfect that it was not possible to locate with certainty the land attempted to be conveyed. We do not understand that the correctness of this ruling is challenged; the effort is to avoid its legal effect. It is argued that conceding the impossibility to locate accurately the fifty acres from the description in the deed, yet inasmuch as they were included within the prescribed boundaries of several larger tracts, the conveyance gave to the grantee the right to locate and adopt any fifty acres within such defined boundaries as he or his grantees might select. The argument overlooks entirely the nature and character of the instrument under which this claim is made. Were it an executory contract between Dillon and Clark, Ave will not say that the latter might not be heard to assert such right; but it is not. It is a deed of conveyance. Of this there can be no question. There is nothing about the paper to suggest that the parties contemplated other or further assurance. It was a final act, expressing the ultimate intention of the parties. The legal presumption from its acceptance by Clark is that it was a fulfillment of all previous negotiations, and that into it were merged all previous understandings. At no time after acceptance of this deed by Clark could he have asserted a right to select his fifty acres out of the larger body, except through a reformation of the deed because of fraud or mistake. This he never attempted; nor do defendants here allege that any ground exists for a reformation; they stand on the paper as a final conveyance, and by it their rights are to be judged. As a conveyance the instrument is fatally defective, since it furnishes no description of the land Avhich would serve to locate it; all that can be gathered from its terms is that the fifty acres intended to be conveyed were part of a tract four times as great; but Avhat part is left undefined and undetermined % That is the whole case. Whether out of the transaction between Dillon and Clark arose any. right on the part of defendants to share in the fund realized from the sale of the entire tract, and which is noAV in court for distribution, is not a question to be decided here. ' The orphans’ court is the proper tribunal to dispose of it. The decree of the court below does not cancel the instrument under which defendants claim; it merely strikes it from the record as an ineffectual deed of conveyance, and as a cloud upon plaintiffs’ title. If it can take effect for any other purpose, the decree does not impair its vitality.

The assignments are overruled, and the decree is affirmed at the costs of the appellants.


author: Mr. Justice Fell,

text:
    Taylor & McCoy Coal & Coke Company, Appellant, v. Hartman.

      Mines and mining — Coal lease — Option to lease — Equity—Discovery.
    Where the .lessee of an upper vein of coal who has the option to purchase or lease a lower vein “on terms as favorable as may be offered bona fide by any other person or persons,” has defeated the consummation of a lease to another party, whose name with the terms offered had been furnished to him, by setting up a claim for the coal, he cannot thereafter when another offer is made to the owner, and the terms of the offer is communicated to him, compel the owner by bill in equity to reveal the name of the person who made the offer.
    Argued April 20, 1908.
    Appeal, No. 386, Jan. T., 1907, by plaintiff, from decree of C. P. Blair Co., Equity Docket C., No. 492, dismissing bill in equity in case of The Taylor & McCoy Coal & Coke Company v. Jesse L. Hartman, Executor of James Denniston, deceased, Jesse L. Hartman, Trustee of Sarah B. Eolkers et al.
    Before Mitchell, C. J., Fell, Brown, Potter and Stewart, JJ.
    Affirmed.
    Bill in equity for discovery. Befor'e Bell, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree dismissing the bill.

      O. II. Ilewit, for appellant,
    cited : Winton’s App., 111 Pa. 387; Guffey v. Clever, 146 Pa. 548; People’s Street Ry. Co. v. Spencer, 156 Pa. 85; Kerr v. Day, 14 Pa. 112; Sylvester v. Born, 132 Pa. 467.

      A. V. Di/oely, of Di/oely c& Dimly, for appellees,
    cited : Hoch v. Bass, 133 Pa. 328.
    June 23, 1908 :
   Opinion by

Mr. Justice Fell,

A statement in detail of the facts is essential to a proper understanding of the relation of the parties at the time the bill was filed. In 1887 Dennison and McLanaghan were the owners of a tract of some 600 acres of land underlaid with two veins of coal, the upper of which was known as the Lemon vein and the lower as the Miller vein. They leased the Lemon vein to Taylor & McCoy, whose rights have been acquired by the plaintiff. The lease contained the following clause: “ In case the lessors desire to sell or lease the Miller vein, the lessees shall have the option to purchase or lease the same, on terms as favorable as may be offered bona fide by any other person or persons.” On December 9, 1902, the defendants, who are the heirs and legal representatives of Dennison and the owners of four-fifths of the land, notified the plaintiff that they had a bona fide offer to lease their interest in the Miller vein. The notice set out in detail the following terms of the offer.: the time the lease was to run, the royalty to be paid, the minimum amount of coal to be mined or paid for whether mined or not; the obligation to operate the mine to its full capacity, the proportions in which the cost of sinking a shaft should be borne and the manner in which the lessor’s portion should be paid. It ended with this statement: “ Under your contract you have the right to lease the Miller vein on terms as reasonable as may be offered by any person. You will please inform us if you will lease the Miller vein on the above terms.”

On December 12, 1902, the receipt of this notice was acknowledged by the defendants by letter in which it was stated that the matter would be given consideration at as early a date as possible. On January 12, 1903 the defendants wrote calling attention to the notice of December 9, and the plaintiff’s reply thereto, and notifying it that, unless the terms of the proposed lease were accepted by January 19, the plaintiff’s right to it would be considered forfeited. After January 19, negotiations were resumed with the party who had desired a lease, but were abandoned by him because of information received from the plaintiff that it claimed a right under its option. On November 11, 1903, in reply to a letter from the defendants threatening suit for the plaintiff’s interference to prevent a lease to another party the plaintiff wrote asking the name of the party from whom an offer had been received in order that it might satisfy itself by evidence other than the mere statement of the defendants that a bona fide offer had been made by reliable parties. This information was promptly given. Upon application by the plaintiff to the party named it was informed that a proposition to lease had been made by the defendants, but that nothing definite had been done because they could not lease the whole interest. On March 1, 1904, the defendants wrote stating that a party desiring to lease their interest had written them that it had been informed by the plaintiff that it would not permit a lease to be made, and notifying the plaintiff' that, if this interference caused a loss of this second opportunity to lease, it would be held answerable in damages. In reply to this letter the plaintiff asked for an outline in detail of the terms of the proposed lease and the name of the lessee in order that it might decide whether it would take the lease itself or allow another to take it. The defendants replied that they had no hesitation in telling the exact terms of the lease and gave the amount of royalty per ton and the minimum amount to be mined each year, but refused to name the proposed lessee for the reason that on a former occasion the plaintiff had demanded the name of the lessee and on being informed of it had notified him that it would not permit a lease to be made to him. A bill was then filed by the plaintiff, the prayers of which were for an order requiring the disclosure of the name of the proposed lessee and the terms in full of the proposed lease, and for an injunction restraining the defendant from leasing the Miller vein until these disclosures had been made and the plaintiff had been given a reasonable time thereafter in which to accept the lease.

The bill was dismissed for the reason that it would be inequitable to enjoin the defendants because of the lapse of time ; the change of parties; the practical difficulty of reaching an understanding with a proposed lessee as to the numerous details of a lease and then holding the matter in abeyance until the plaintiff should elect to accept or decline a lease on the same terms ; and the refusal or neglect of the plaintiff to act upon the notice of December 9, 1902, followed by the assertion of its claim to the coal, by which the consummation of a lease to another party had been prevented.

The situation was one that presented many practical difficulties if not met in a spirit of entire fairness by the parties. It was the defendants’ interest to lease the coal and derive an income from it, and it was the plaintiff’s interest to delay any action on its option until the upper vein of coal was exhausted and it had use for the lower vein. It was in its power practically to prevent the lease to another party by the continued assertion of its right to lease. It was not bound to act until notified by the defendants and furnished with a statement of the terms offered by any other person. The notification of December 9, 1902, was a compliance with the agreement, and the failure after a reasonable time to accept might have been held as a waiver of the plaintiff’s right. It was not, however, so regarded by the defendants, who continued to recognize the plaintiff’s right and made a second offer on March 7, 1904. If the plaintiff desired fuller information as to the terms of the lease referred to in this offer, it should have asked for it, and, until it had asked and been refused, it was not in a position to maintain its bill. It was not its right under the circumstances to demand the disclosure of the name of the lessee.

The decree is affirmed at the cost of the appellant.


author: Me. Justice Fell,

text:
    Kough v. Pennsylvania Railroad Company, Appellant.

      Railroads — Damages—Trespass—Pleadings—Variance—Allegata and probata.

    It is not enough that the evidence shows a cause of action; it must show the cause alleged.
    In an action by a landowner against a railroad company, the plaintiff in his statement averred that the defendant without having tendered a bond entered and appropriated a strip of plaintiff’s land adjoining its right of way, and placed an additional track thereon; that the movement of trains on this track made his house less desirable as a residence because of vibration, noise and dirt; and that the defendant destroyed shade trees and threw stones and earth on a part of his land not appropriated. At the trial the proofs were that the strip appropriated was in fact a dedicated public road, that no shade trees had been injured, and that the throwing of dirt and stones was not on the property of the plaintiff, but on the surface of the street. The only testimony that tended to show injury to plaintiff was to the effect that the construction of the additional track interfered with the means of access to plaintiff’s property. Held, that it was reversible error to permit the jury to allow plaintiff damages for interference with access to his property, inasmuch as there was nothing alleged in the statement of claim as a basis for the recovery of such damages.
    Argued April 21, 1908.
    Appeal, No. 112, Jan. T., 1908, by-defendant, from judgment of O. P. Huntingdon Co., Sept. T., 1905, No. 49, on verdict for plaintiff in case of William E. Hough v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Stewart, JJ.
    Reversed.
    Trespass to recover damages for injuries to real estate.
    The opinion of the Supreme Court states the case.
    The court charged in part as follows :
    If, in taking this narrow strip, seventy feet long, the defendant destroyed the plaintiff’s access to and from his property, or interfered with it and made it harder to get to and from his home, and by so doing rendered this property less valuable in the market, then the plaintiff can recover to just such an extent as the evidence shows you he has been injured; and in considering this matter you must bear in mind the conditions that existed before, and the conditions that existed after, the said defendant took possession. There was smoke, noise and cinders there before the taking. How much did the increase of these elements, if any, interfere with the access of the plaintiff to and from his property and thereby affect the market value of the property? You must be satisfied that the defendant company took a portion of the plaintiff’s property and interfered with his access to and from his home, and thereby injured him, before you can find for plaintiff. If you find that the defendant company has taken a portion of his land and interfered with his access to and from his property, how much, if any, has the market value of the property been affected ; and, in considering this matter, you must take into consideration the testimony of the witnesses who testified as to the value of the property immediately before and immediately after the taking, taking into consideration any advantages or disadvantages that accrued to the plaintiff.
    Yerdict and judgment for plaintiff for $1,700. Defendant appealed. •

      Errors assigned were various instructions.

      John D. Dorris, for appellant.
    It is not enough, that the evidence may show a cause of action, it must show the cause laid in the declaration. The plaintiff does not recover on the proofs alone; he recovers secundum allegata et probata. In trespass, especially, the ground of complaint should be stated so distinctly that the real issue may be formed by the plea of not guilty, since that is the only plea permitted: Clark v. Lindsay, 7 Pa. Superior Ct. 43; Fulmer v. Williams, 122 Pa. 191.
    It does not admit of a doubt in this state that a railroad company may use a public street or highway when authorized by its charter, either expressly or inferentially: Cleveland & Pittsburg R. R. Co. v. Speer, 56 Pa. 325; Mayor, etc., of Pittsburg v. Penna. R. R. Co., 48 Pa. 355; McGee’s App., 114 Pa. 470; Howell v. Morrisville Borough, 212 Pa. 349; Penna. R. R. Co. v. Duncan, 111 Pa. 352; Penna. R. R. Co. v. Lippincott, 116 Pa. 472.

      James S. Woods and II. II. Waite, for appellee.
    Where a statement in trespass contains clear and concise information of the cause of neglect to which complaint is made, the plaintiff is not debarred from showing in the trial other items which are the natural results of such negligent acts: Wike v. Woolverton, 26 Pa. Superior Ct. 561; Schofield v. Lafferty, 17 Pa. Superior Ct. 8; Rife v. Middletown, 32 Pa. Superior Ct. 68.
    All mere technical defects in a declaration, which might have been reached by demurrer, are cured by trial and verdict on the merits: Township of East Union v. Comrey, 100 Pa. 362; Chapin v. Cambria Iron Co., 145 Pa. 478; Eckert v. Schoch, 155 Pa. 530.
    June 23, 1908 :
   Opinion by

Me. Justice Fell,

The appellant’s contention that a recovery against it was allowed for a cause of action.not declared on must be sustained. The substance of the allegations in the declaration is that the defendant, without having tendered a bond as required by law, entered by force upon and appropriated to its use a strip of the plaintiff’s land adjoining its right of way and placed an additional track thereon; that the movement of trains on this track made his house less desirable as a residence because of vibration, noise and dirt; that the defendant destroyed shade trees and threw stones and earth on a part of his land not appropriated.

The proofs at the trial were that in the borough of Mount Union the defendant’s road was eight feet below the grade of a public street on which the plaintiff’s property was situated. There was a sloping bank six and a half feet in width on the north side of the street between the level portion thereof and the defendant’s roadbed. By authority of the borough council, granted by ordinance, the defendant removed the bank, built a retaining wall, and occupied six and a half feet of the street at the grade of its tracks on the side opposite the plaintiff’s property. The grade of the part of the street that was traveled was not changed, nor was any part of the plaintiff’s land taken. The claim for damages for the inj ury to shad e trees was not sustained by proof and was withdrawn from the jury by the court; and the throwing of dirt and stones complained of was not on the private property of the plaintiff, but on the surface of the public street during the progress of the work. The only ground for the recovery of damages that the testimony tended in any way to establish was interference with the means of access to the plaintiff’s property. This was not alleged as a ground for recovery, nor was it a natural result of the grounds laid, and its submission to the jury was error.

When testimony on this subject was first objected to, the plaintiff was proceeding on the theory that a street had not been laid out in front of his property and that a part of his land in actual occupation had been taken. The objection was properly overruled because, if a part were taken, the testimony was admissible to show the injury to the remaining land. But it was afterwards shown beyond controversy and admitted that a public street had been established by dedication by a previous owner and by adoption by the borough, and the question of the right to recover for interference with the means of access was raised by a request for charge. The change of front by the plaintiff during the trial no doubt led to the error, but it cannot be said that the defendant acquiesced in the submission of a question not involved in the issue. The plaintiff may have a cause of action for the impairment of a right incident to his property, under the principles stated in Jones v. Erie, etc., Railroad Co., 151 Pa. 30, and the cases there cited, but it is a cause differing from that laid in the declaration. It is not enough that the evidence shows a cause of action; it must show the cause alleged.

The judgment is reversed.


text:
    Pruner’s Estate.

      Will — Legacies—Specific legacy — Ademption of legacy — Insurance policies.

    Testator, who was a creditor of a niece’s husband, bequeathed to his niece certain insurance policies on the life of her husband held by testator as security for his debt, “she to pay the premiums on the same till they mature.” The insured died before the testator who received the proceeds of the policies and deposited them in his bank account. He used the money received from the insurance with other money in the purchase of bonds which he placed in a safe deposit box where he kept his securities, without indicating that the bonds were not his own. Held, that the legacy was specific and was adeemed by the maturity and payment of the policies before the death of the testator.
    In order to guard a legatee against the risk of ademption and in order that the legacy may be liable to contribution and abatement in case of a deficiency of assets, courts incline against construing legacies as specific. But this well-recognized doctrine must not be allowed to contravene the plain import of the will.
    Argued April 21, 1908.
    Appeal, No. 132, Jan. T., 1908, by Ben. J. Hiltner, Administrator of Clara R. Moyer, deceased, a Legatee, from decree of O. C. Centre Co., No. 7,555, dismissing exceptions to auditor’s report in Estate of E. J. Pruner, deceased.
    Before Mitchell, C. J., Fell, Brown, Potter and Stewart, JJ.
    Affirmed.
    Exceptions to report of S. D. Gettig, Esq., auditor.
    The facts are stated in the opinion of the Supreme Court.

      JErroi' assigned was in dismissing exceptions to auditor’s report.

      O. M. Hewit, for appellant.
    The character of a legacy, whether specific or demonstrative, is essentially a question of intention: Hoke v. Herman, 21 Pa. 301; Smith’s App., 103 Pa. 559; Snyder’s Est., 217 Pa. 71.
    It is a rule of construction, becoming more firmly fixed in our jurisprudence from year to year, that courts are averse to construing legacies to be specific, and this is so mainly because of the principle of ademption: Smith’s Appeal, 103 Pa. 559; Fryer v. Morris, 9 Ves. Jr. 360; Ives v. Canby, 48 Fed. Repr. 718; Corbin v. Mills, 19 Gratt. (Va.) 438; Nooe v. Vannoy, 6 Jones’s Eq. (No. Car.) 185; Coleman v. Coleman, 2 Ves. Jr. 639.

      John G-. Love, with him P. J. Little and Harry Keller, for appellee.
    The legacy was specific: Walls v. Stewart, 16 Pa. 275; Blackstone v. Blackstone, 3 Watts, 335; Ludlam’s Estate, 13 Pa. 188; Hoke v. Herman, 21 Pa. 301; Pleasants’s Appeal, 77 Pa. 356; Smith’s Appeal, 103 Pa. 559; Fidelity Company’s Appeal, 108 Pa. 492.
    June 23, 1908 :
   Opinion bx

Mr. Justice Fell,

The question presented by this appeal arises under the following clause of the testator’s will: “ I also give to my niece, Clara R. Moyer, the life insurance policies which I hold on the life of A. C. Moyer, she to pay the premiums on the same till they mature.” A. C. Moyer was the husband of Clara R. Moyer, and the testator held by absolute assignments two policies of insurance on his life. The testator paid the premiums for a number of years and charged them in ledger accounts headed “ A. C. Moyer Life Insurance policy, New York Life” and “ Mutual Life Insurance Co., N. Y. Investment in policy on A. C. Moyer’s life.” The insured died before the testator, who received the proceeds of the policies and deposited them in his account in the bank of which he was president. He used the money received from the insurance with other money in the purchase of bonds, which he placed in a safe deposit box where he kept his securities. The auditor found that at the time of the assignment of the policies the testator was a creditor of the insured and had an insurable interest in his life; that there was nothing to indicate that the bonds purchased in part with the money received from the insurance companies were not the absolute property of the testator; and that the legacy was specific and was adeemed by the maturity and payment of the policies before the death of the testator. These findings were affirmed by the orphans’ court.

It is conceded that under the findings of fact, the appellant can succeed only on the ground that the legacy was not specific and adeemed by the payment of the policies. It is argued with much earnestness and ability that the words in the bequest, “ she to pay the premiums on the same till they mature,” disclose an intention on the part of the testator not to give his niece the insurance policies freed of any charge upon them, but to give her the proceeds of the policies less the amount of the premiums paid by him; and that the legacy was a bequest of a sum of money-payable out of a particular fund and was demonstrative and not adeemed by the payment of the policies.

In order to guard a legatee against the risk of ademption and in order that the legacy may be liable to contribution and abatement in case of a deficiency of assets, courts incline against construing legacies as specific. But this well-recognized doctrine must not be 'allowed to contravene the plain import of the will: Notes to Ashburner v. Macguire, 2 Leading Cases in Eq. *267. The bequest of the “ Life insurance policies which I hold on the life of A. C. Moyer” is clearly specific. The added words, “ she to pay the premiums on the same till they mature,” refers to payments that might become due after the policies passed by the will to the legatee. If they had been in force at the death of the testator, his niece would have received -them free of any charge for premiums paid by him. We think the conclusion expressed by the learned judge of the orphans’ court, that it was “ the intention of the testator to give the policies to his niece on the condition and understanding that after his death his estate should no longer be chargeable with the maintenance of the same,” is correct.

The decree is affirmed at the cost of the appellant.


author: Mr. Justice Brown,

text:
    Fuller’s Estate.

      Wills — Issue devisavit vel non — Probate—Refusal of issue — Evidence— Handwriting — Expert.
    An issue devisavit vel non will not be granted where a verdict against the will on the evidence submitted would have to be immediately set aside by a trial judge. This rule applies not only to an application for an issue on the ground of lack of testamentary capacity or undue influence, but also to a case where the testimony of two expert witnesses in handwriting is practically all that is opposed to positive proof of the execution of the will or the evidence of a cloud of witnesses, familiar for years with the handwriting of the deceased, that the signature is genuine.
    Experts are received to testify whether a writing is a real or a feigned hand, and may compare it with other writings already in evidence in the issue; but upon this kind of evidence very little, if any, reliance ought to be placed.
    Argued May 12, 1908.
    Appeal, No. 105, Jan. T., 1908, by Harriet R. Anderson, from decree of O. C. Fayette Co., Dec. Term, 1906, No. 130, dismissing petition for issue devisavit vel non in Estate of William B. Fuller, deceased.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Petition for issue devisavit vel non.
    The opinion of the Supreme Court states the case.

      Error assigned was the decree refusing the issue.

      D. E. Mitchell, of Griffith Mitchell, and John G. Johnson, for appellant,
    cited: Robinson v. Robinson, 203 Pa. 400; Cozzens’s Will, 61 Pa. 196; DeHaven’s App., 75 Pa. 337; Schwilke’s App., 100 Pa. 628; Knauss’s App., 114 Pa. 10; Howard Express Co. v. Wile, 64 Pa. 201; Lotz v. Reading Iron Co., 10 Pa. C. C. Rep. 497; Pusey v. Ledward, 1 Del. Co. Rep. 185; Evans v. Bitner, 4 Lancaster Bar, No. 15; Sharpless’s Est., 134 Pa. 250.

      W. E. Grow, of Grow dé Shelby, for appellee.
    Fow’s Est., 147 Pa. 264; Tallman’s Est., 148 Pa. 286; Pensyl’s Est., 157 Pa. 465; Foster’s Est., 142 Pa. 62; Graham’s App., 61 Pa. 43; Cozzens’s Will, 61 Pa. 196; De Haven’s App., 75 Pa. 337; Schwilke’s App., 100 Pa. 628 Knauss’s App., 114 Pa. 10.
    June 23, 1908 :
   Opinion by

Mr. Justice Brown,

It is hardly conceivable that, on the testimony offered by the appellant in support of her application for an issue devisavit vel non, any jury would return a verdict against the will, and it is certain that such a finding would be promptly set aside by a trial judge. We have repeatedly said' that, in every such case, the issue should be refused,, and while we have usually said so in connection with an application for an issue on the ground of lack of testamentary capacity or undue influence, there is no reason why the rule should not apply when the testimony of one or two experts is practically all that is opposed to positive proof of the execution of the will or the evidence of a cloud of witnesses, familiar for years with the handwriting of the deceased, that the signature is genuine. “ Experts are received to testify, whether the writing is a real or a feigned hand, and may compare it with other writings already in evidence in the issue. . . . But upon this kind of evidence learned judges are of the opinion that very little, if any, reliance ought to be placed: ” 1 Greenleaf on Evidence (15th ed.), sec. 580, note.

In the present casó all that Was presented to the court below by the appellant, when she announced her testimony closed, was the opinion of two alleged experts in handwriting, neither of whom had ever seen the deceased. These two witnesses — the greater portion of the testimony of one of them being his exploitation before the court of his own importance — testified that in their opinion W. B. Fuller had not signed the will. There was-no dispute that the body of it was in his handwriting, and, as against the opinion of the two experts, the appellee — first called as a witness by the appellant — testified that her husband had made and delivered the will to her. This was proof of its actual execution by him. She further testified that after his death she gave it to her brother-in-law, F. M. Fuller, in whose possession it remained until he died. In this she is corroborated by his widow, Sarah Fuller, who testified that she saw the appellee give the will to her husband within a few days after W. B. Fuller’s death, and that it bore his genuine signature. Minnie Wyatt testified to the same effect. Thirteen witnesses, who had known W. B. Fuller for years and had frequent opportunities to become acquainted with his handwriting, testified that the signature to the will was genuine. Some of these witnesses testified against their own interest. In addition to this the court had before it, for comparison with his signature, eighteen admittedly genuine signatures of William B. Fuller to checks and notes, and its conclusion from the comparisons was that W. B. Fuller had signed the will. The delay of the appellee in admitting it to probate is explained by her statement that F. M. Fuller, her coexecutor, had so advised for business reasons, and the deputy register of the county testified that F. M. Fuller, shortly before his death, had called and arranged for the probate of the will.

The only support given to the experts was the testimony of a witness who was discovered after the testimony on each side had been announced as closed. She stated that several weeks after the death of W. B. Fuller the appellee had said to her that he had made a will, but had failed to sign his name to it. Of the testimony of this witness the learned judge below very properly said, “ Coming in the manner and at the time it does it has not convinced us that the testimony of Mrs. Amanda Fuller and Miss Wyatt is false,” and concluded that the will and signature, in comparison with the other writings and signatures produced, indicated to an ordinary mind that they were written by the same hand. An appeal could not well have less merit than this and it is dismissed at appellant’s costs.


text:
    Thomas, Appellant, v. Borden.

      Appeals — Assignments of error — Practice, Supreme Court — Practice, equity.

    An appeal in an equity case may be quashed, where the notes of testimony have not been certified by either the official stenographer or the trial judge.
    Where a bill in equity is dismissed by the trial judge without hearing evidence on the part of the defendant, such dismissal of the bill is not a basis for an assignment of error. Such action on the part of the trial judge does not become final until it is made so by the court in passing upon exceptions to it.
    Where a bill in equity is dismissed by the trial judge without hearing evidence on the part of the defendant, an assignment alleging error by the court in not entering a decree in favor of the plaintiff, is bad. In such a ease when the plaintiff closes, the defendant’s motion is in the nature of an application for a nonsuit on the law side of the court, and, if error is committed in granting such a motion, it is not to be corrected by entering a decree for the plaintiff, but by setting aside the dismissal of the bill and reinstating it with a procedendo.

      Equity — Equity practice — Injunction—Contract—Agreement in restraint of trade — Responsive answer.

    Where the complainant in. a bill in equity asks for an injunction to restrain the defendant from engaging in a business which he had agreed in writing not to engage in for a period stated, and the defendant avers in his answer that the written agreement had been rescinded and an oral agreement substituted in which there was no reference to the restriction on trade, the answer is responsive to the bill, and if the complainant does not overcome the answer by proof, his bill is properly dismissed.
    A claim for an injunction to restrain the defendant from violating a covenant in a written agreement, by which he bound himself not to engage in “the business of extracting teeth by the use of nitrous oxide gas, or any other method invented and used exclusively ” by the complainant, is not well founded, where it appears that the method of extracting teeth by the use of nitrous oxide gas, was neither invented nor used exclusively by the complainant.
    Argued May 12, 1908.
    Appeal, No. 96, Jan. T., 1908, by plaintiff, from decree of C. P. No. 2, Phila. Co., Sept. T., 1907, No. 1,196, dismissing bill in equity in case of John D. Thomas v. "Walter A. Borden.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The facts are stated in the opinion of the Supreme Court.
    Sulzber&er, J., the trial judge, entered a decree as follows:
    And now, December 8,1907, the trial judge, upon the close of complainant’s evidence, being of opinion that the case made in the bill has not been sustained, hereby orders and decrees that the bill in equity filed in this case be dismissed at plaintiff’s costs.
    The court dismissed an exception to the adjudication.

      Errors assigned were in the following form :
    1. The learned court erred in dismissing the plaintiff’s bill.
    2. The learned court erred in not entering a decree in favor of plaintiff.

      Q-eorge Wharton Pepper and Henry J. Scott, with them A. Culver Boyd and John C. Johnson, for appellant,
    cited: Wilkinson v. Colley, 164 Pa. 35; Davies v. Racer, 72 Hun, 43; American Ice Co. v. Luff, 12 Pa. Dist. Rep. 381; Pittsburg Stove, etc., Co. v. Penna. Stove Co., 208 Pa. 37.

      Alex. Simpson, Jr., with him Smithers & Lank, for appellee.
    The assignments of error are bad: Landis v. Evans, 113 Pa. 332; Cessna’s Est., 192 Pa. 14; Clymer v. Roberts, 220 Pa. 162.
    The evidence does not overcome the effect of defendant’s responsive answer.
    Aside from the effect of the responsive answer the dismissal of the bill was right: Gompers v. Rochester, 56 Pa. 194; Harkinson’s App., 78 Pa. 196; Cleaver v. Lenhart, 182 Pa. 285; Keeler v. Taylor, 53 Pa. 467; Erie County Milk Assn. v. Ripley, 18 Pa. Superior Ct. 28; Seward v. Shields, 9 Pa. Dist. Rep. 583.
    June 23, 1908:
   Opinion by

Mr. Justice Brown,

That there may be an end to these proceedings and that the appellant may know his bill was properly dismissed, we have concluded not to quash his appeal, though there are good reasons for doing so. The notes of testimony have not been certified by either the official stenographer or the trial judge. When the plaintiff closed his case on the hearing below the following decree was made by the trial judge: And now, December 3, 1907, the trial judge, upon the close of complainant’s evidence, being of opinion that the case made in the bill has not been sustained, hereby orders and decrees that the bill in equity filed in this case be dismissed at plaintiff’s costs.” This dismissal of the bill without hearing evidence on the part of the defendant was finder equity rule 68, and the effect of it was a nonsuit at law, but neither the decree of the trial judge nor the action of the court in banc on what counsel for appellant term the exceptions to it is assigned as error. The first assignment is simply, “ The learned court erred in dismissing the plaintiff’s bill.” We have nothing before us to show that the court dismissed the bill. The trial judge dismissed it, but his action did not become final until made so by the court in passing upon exceptions to it. The other assignment, alleging error by the court in not entering a decree in favor of the plaintiff, is bad. When the plaintiff closed his case the defendant’s motion was in the nature of an application for a nonsuit on the law side of the court, and, if error is committed in granting such a motion, it is not to be corrected by entering a decree for the plaintiff, but by setting aside the dismissal of the bill and reinstating it with a procedendo.

On January 1, 1903, the appellant and appellee entered into a written agreement of copartnership for the practice of dentistry for a period of five years, unless sooner terminated by the death of either, or otherwise.” The clause in the agreement which the appellant seeks to have specifically enforced by this bill is as follows: “ Said Walter A. Borden agrees that he will not during the continuance of this agreement or any extension thereof, or within five years after the termination thereof, or of any extension thereof, without the written consent of the said John D. Thomas, carry on or practice either in his own name, or as assistant to, or partner of, or associated with anyone else the business of extracting teeth by the use of nitrous oxide gas, or any other method invented and used exclusively by said John D. Thomas, in the City of Philadelphia; and that he will not in any event, or at any time, or in any place, use or refer to the name of the said John D. Thomas, or of the Colton Dental Association, or to his business relations with said John D. Thomas.” That portion of the clause covenanting that the appellee will not use or refer to the name of John D. Thomas, or of the Colton Dental Association, or his business relations with the appellant, is no longer in the case, as it was the subject of a stipulation between the parties on the trial. The prayer of the appellant is for an injunction to restrain the appellee “ from carrying on or practicing, either in his own name or as assistant to or partner of or associate with anyone else, the business of extracting teeth by the use of nitrous oxide gas or anaesthesia, at any time prior to January 1,1913.”

The bill avers that on August 20,1907, the appellee notified the appellant in writing that he would terminate the agreement of January 1, 1903, at the expiration of thirty days from said date, that said notice was given without any legal cause or reason, that the appellee accepted said notice and the agreement became terminated on September 19, 1907. This averment, in substance, is that the agreement of January 1, 1903, had continued up to September 19, 1907.

In the tenth paragraph of his answer the appellee sets forth that about October 1, 1905, he personally served upon the appellant the following notice:

“ My dear Dr. Thomas,

“ Owing to the many objectionable changes made by you and your habits professionally and personally during the last two years that have become unbearable for me, I wish to notify you that thirty days from to-day (October 1, 1905), I will separate myself from copartnership that has existed between us since January 1/03.

“ Very truly yours,

“ W. A. Borden.”

To this notice the following reply was received by the defendant, in which there is an erroneous reference to his letter as being of the 29th :

“10/12/05.

“ My dear Dr. Borden,

“ Referring to yours of the 29th will say that I accept the proposition and that our associations will cease upon October 31st.

“Yery truly yours,

“ J. D. Thomas.”

Following this there is a further averment that, pursuant to the above two notices, the agreement of January 1, 1903, was terminated, and, at the earnest request of the appellant, the appellee made a new verbal agreement with him, as follows: “ After October 31, 1905, I should assume-entire charge of the business except at such times as he saw fit to be present, that the partnership was to be upon the basis of my receiving thirty per cent, of the gross receipts, plus fifteen dollars for each week during which the plaintiff should be absent, I to forward his share of the receipts to wherever he might be, if away, keep the books, collect accounts and pay bills out of the income, and generally supervise the business, he to pay the rent of the house and maintain the offices and pay the help.” A further averment is that no period was agreed upon as to the continuance of the new partnership, which went into effect on November 1, 1905, “and no other terms, except the above, were agreed upon.” Here is a distinct averment in the answer, not only of the termination of the agreement of January 1,1903, but of a rescission of it by the parties to it and the formation of a new partnership upon new terms, which did not include the provision which the appellant would now have enforced. This is responsive to the bill, because it avers continued relations between the appellant and the appellee up to September 19,1907, under the agreement of January 1,1903. If this was so, and the terms of that agreement were of an enforceable kind, the appellant was entitled to his prayer, but if the agreement of 1903 had terminated nearly two years before, and a new one substituted for it, containing no covenant by the appellee that he would not engage in the business of extracting teeth by the use of nitrous oxide gas or any other method invented or used exclusively by the appellant, the injunction was properly refused. The answer is further responsive because it states the particulars of the transaction charged and inquired into by the bill: Eaton’s Appeal, 66 Pa. 483; Merritt v. Brown, 19 N. J. Eq. 286. No witness was called by the appellant to overcome this part of the answer, and the first reason given by counsel for appellee for dismissing the appeal is sustained. As it is sufficient, others which might be given need not be stated. No reasons were given by the learned trial judge for his decree at the time he made it, but, in an opinion filed since this appeal was taken, he properly holds that if the plaintiff stands upon the words of the agreement of January 1, 1903 (which is of a kind to be strictly construed), forbidding the appellee from engaging in “ the business of extracting teeth by the use of nitrous oxide gas or any other method invented and used exclusively by said John D. Thomas, ” the claim to an injunction is without foundation, as the method of extracting teeth by the use of nitrous oxide gas was neither invented nor used exclusively by the appellant.

Appeal dismissed at appellant’s costs.


author: Mr. Justice Bbown,

text:
    Schmuck v. Hartman, Appellant.

      Appeals — Right of appeal — Tax assessment — Certiorari.
    While no right of appeal from a judgment of the court below, in favor of a taxpayer as against a tax assessment, is given by any statute, the Supreme Court by reason of its general jurisdiction to examine and correct errors of the lower courts, will treat an appeal from such a judgment as a certiorari, and will correct any error disclosed on the face of the record.
    In the old Act of May 22,1722,1 Sm. L. 131, the powers granted to the Supreme Court were such as “the justices of the Court of King’s Bench, Common Pleas and Exchequer or any of them possessed.” When, therefore, the Act of June 16,1836, P. L. 784, refers to the “heretofore” powers of the courts, the general common-law powers of the three principal courts of Westminster Hall, so far as they are unimpaired by the state and. national constitutions, are to be understood by the reference.
    The judicial authority of the Supreme Court extends to the review and correction of all proceedings of all inferior courts, except where such review is expressly excluded by statute, in accordance with the constitution; and it may issue all sorts of process, and use and adopt all sorts of legal forms that are necessary to give effect to this supervisory authority.

      Taxation — Failure to maize return — Making false returns — Assessment —Act of June 1,1889, P. L. 420.
    All taxation is statutory, and, while it is the duty of every citizen to bear his just proportion of the burden of supporting national, state and local government, he cannot be compelled to do so except in the way provided by a statute. Liability to pay taxes arises from no contractual relation between the taxable and the taxing powers, and cannot be enforced by common-law proceedings unless a statute so provides.
    No act of assembly authorizes -an assessment of a state tax on personal property after the expiration of the year in which it ought to have been assessed and the taxable ought to have paid it. If a taxpayer neglects to make a return for a particular year, the taxing authorities cannot after the expiration of such year make an assessment against the taxpayer for that year.
    If a taxpayer makes an insufficient and false return, the only remedy of the taxing authorities is to pursue the way pointed out by secs. 11 and 12 of the Act of June 1, 1889, P. L. 420. They cannot after the expiration of the year make a valid assessment against the taxpayer: Williamson’s Est., 153 Pa. 508, followed.

      Argued May 18, 1908.
    Appeal, No. 169, Jan. T., 1908, by defendant, from judgment of C. P. York Co., April T., 1908, No. 28, for plaintiff on appeal from tax assessment in case of Henry M. Schmuck v. Emanuel Hartman et al., Commissioners of York County, and Board of Revision of Taxes for York County.
    Before Pell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal by the county commissioners of York county from tax assessment.
    Wanner, J., stated the facts to be as follows:
    This is an appeal by Henry M. Schmuck, from the decision of the Board of Revision of Taxes, of York county, Pennsylvania, in affirming the action of the county commissioners of said county, who on December 28, 1907, raised the valuation of his personal property for purposes of state taxation, for a period of thirty-two years immediately preceding, to wit, from 1876 to 1907, inclusive.
    This was done under the supposed authority of sections 11 and 12 of the Act of assembly of June 1, 1889, P. L.-420, because the appellant during that period had not returned to the assessor certain sums of money which he then had invested in mortgages in the state of Ohio.
    The appellant had fully paid all the state taxes assessed against him each year during the period above mentioned.
    The county commissioners, having discovered that these returns were too low, and that the appellant had thereby escaped taxation on a larger sum of money, raised his taxable valuation from the several sums returned by him, to the aggregate amounts of said Ohio mortgages as actually held by him, during the several years in question, as follows :
    Year Original Return Raised Valuation
    1876 ............... No return...............$ 30,000
    1887 ............... No return............... 30,000
    1878 ............... No return............... 59,000
    1879 ............... No return............... 70,440
    1880 ............... No return............... 73,040
    1881 ............... No return............... 80,040
    1882 ............... No return.-.............. 86,040

      Year Original Return Raised Valuation
    1883 ......... No return............... 109,540
    1884 ......... No return............... 133,040
    1885 ............ $4,080.:............. 133,160
    1886 ............ 4,080............... 146,660
    1887 ............ 4,080............... 172,220
    1888 ............ 4,700............... 199,300
    1889 ............ 4,700............... 236,400
    1890 ............ 5,100............... 233,840
    1891 ............ 5,000............... 256,040
    1892 ............ 5,000 ............... 262,740
    1893 ............ 5,000............... 293,640
    1894 ............ 5,000............... 391,900
    1895 ............ 5,000............... 485,433
    1896 ............ 5,000............... 537,613
    1897 ............ 5,000............... 571,763
    1898 ............ 5,000............... 649,433
    1899 ............ 6,400............... 781,258
    1900 ............ 6,800............... 799,125
    1901 ............ 5,900............... 842,115
    1902 ............ 5,600............... 828,590
    1903 ............ 5,000............... 804,590
    1904 ............ 5,000............... 824,875
    1905 ............ 5,000............... 812,325
    1906 ............ 6,000............... 802,200
    1907 ............ 6,000............... 727,020
    SCHMUCK v. HARTMAN, Appellant. Statement of Facts — Arguments. [222 Pa.
    It is contended on behalf of the appellant, that this action of the commissioners was illegal. That it was unwarranted by the act of assembly of 1889, and that after the payment of his taxes as regularly assessed, and after the expiration of the year for which they were assessed, it was too late to raise the appellant’s valuation, or to reassess him.
    The court entered judgment in favor of Henry M. Schmuck.

      Error assigned was in entering judgment for Henry M. Schmuck.

      John E. Oeyer, with him John E. Eox and U. O. Brenneman, county solicitor, for appellants.-
    If an assessment is wrong and unjust because too low and falsely and fraudulently procured, time, in all fairness, should not run against the party who had no knowledge whatever of its unjjistness. The mere fact that certain figures were accepted by certain officers of the state; first, the assessor, and second, the county commissioners or board of revision of taxes, should not operate to defeat the right of the state to recover, particularly if the state through its officers was misled by a false and fraudulent return: U. S. v. Kirkpatrick, 22 U. S. 720; Haehnlen v. Com., 13 Pa. 617.
    If there be any liability for the tax on this personal property the courts must be astute to discover some remedy for its enforcement. It should not be held that so great a wrong done the commonwealth could never be righted because the courts do not recognize any means whereby the ends of justice could be accomplished: Cochran v. Eldridge, 49 Pa. 365; Fisher v. Ry. Co., 185 Pa. 602; Zeigler’s Petition, 207 Pa. 131.

      J. S. Black, with him O. E. Ehrehart and V. K. Keesey, for appellee.
    The appeal must be quashed because there is no authority for an appeal to this court by anyone save the “ owner of real estate or taxable property: ” Albert v. Board of Revision, 139 Pa. 467.
    The whole system of taxation is necessarily statutory, and this court cannot assume jurisdiction of an appeal in a tax case without specific statutory authority: Kimber v. Schuylkill County, 20 Pa. 366; Clinton School District’s App., 56 Pa. 315; Com. v. Coleman, 52 Pa. 468; Wetherald v. Shupe, 109 Pa. 389; Philadelphia Co.’s Petition, 210 Pa. 490; Gangewere’s App., 61 Pa. 342; Gifford v. County of Erie, 142 Pa. 408; Thomas v. Upper Merion Township, 148 Pa. 116; Diamond Street, Pittsburg, 196 Pa. 254.
    On the part of the county commissioners of York county this is simply an attempt to assess property which has escaped taxation, and this they have no power to do unless specifically authorized by statute: Williamson’s Est., 153 Pa. 508; Moneypenny’s Est., 181 Pa. 309; Slaymaker v. Lancaster County, 2 Lanc. Bar., No. 43, p. 1.
    June 23, 1908:
   Opinion by

Mr. Justice Bbown,

No right of appeal from the action of the court below is given by any statute, and counsel for appellants frankly admit that one does not lie. But for nearly two hundred years the “general jurisdiction of this court has been declared by statute to extend to the examination and correction of ‘all and all manner of error of the justices, magistrates, and courts of the Commonwealth, in the process, proceedings, judgments, and decrees, as well in criminal as in civil proceedings, .... and to minister justice to all persons as full and ample to all intents and purposes as the said court has heretofore had power to do under the constitution and laws of the Commonwealth.’ Such are part of the words of the act of 1836. In the old act of 22d May, 1722, the powers granted were such as ‘ the justices of the Court of King’s Bench, Common Pleas, and Exchequer, or any of them possessed.’ When, therefore, the act of 1836 refers itself to the ‘ heretofore’ powers of the courts, the general common-law powers of the three principal courts of Westminster Hall, so far as they are unimpaired by our constitutions, state and national, are to be understood by the reference:” Chase v. Miller, 41 Pa. 403. “The judicial authority of this court- extends to the review and correction of all proceedings of all inferior courts, except where such review is expressly excluded by statute, in accordance with the constitution ; and we may issue all sorts of process, and use and adopt all sorts of legal forms that are necessary to give effect to this supervisory authority : ” Gosline v. Place, 32 Pa. 520. The motion to quash is overruled, but, treating the appeal as a certiorari, the record is brought up for review, and if it discloses error by the court below in denying to the appellants a legal right under admitted facts, such error must be corrected.

From 1876 to 1884, inclusive, Henry M. Schmuck made no return of his personal property liable to state tax. From 1885 to 1907, inclusive, he did make returns, starting in 1885 with $4,080, and gradually increasing them until the one for 1907 reached $6,000. Late in that year the county commissioners, having learned that for thirty-two years the appellee had either failed to make any return or had falsely returned his personal property liable to a state tax, made assessments or reassessments against him for each year from 1876 to 1907. That made for the year 1876 was for $30,000, and, down to and in-eluding 1884, they varied from that amount'to $133,040. From 1885 the reassessments varied from $133,160, the lowest, to $824,875, the highest.

The appellee has undoubtedly withheld from the commonwealth a large sum which he ought to have paid for taxes, and his moral duty unquestionably now is to pay it, but he cannot be compelled to perform that duty unless there is a right in the commonwealth to enforce it as a legal one. All taxation is statutory, and, while it is the duty of every citizen to bear his just proportion of the burden of supporting national, state and local government, he cannot be compelled to do so except in a way provided by a statute. Liability to pay taxes arises from no contractual relation between the taxable and the taxing power, and cannot be enforced by common-law proceedings unless a statute so provides. They can be collected in no other way than that pointed out by the statute, and cannot be collected until they have first been assessed according to the statute. Are the assessments and reassessments made by the appellants sanctioned by any statute ? If they are not, they are void. No act of assembly authorizes an assessment of a state tax on personal property after the expiration of the year in which it ought to have been assessed and the taxable ought to have paid it; and yet this is what the appellants did for the years from 1876 to 1884. They do not pretend that there was authority for this in any statute that had been passed up to 1885, and, as to these original assessments made by them thirty-one years, after the first one ought to have been made and twenty-three years after the one for 1884 should have been made, nothing more need be said.

From 1885 to 1907 the appellee regularly made returns to the assessors. For these assessments, upon which he paid taxes each year, the appellants would now substitute reassessments as a basis for the collection by the commonwealth of a large sum of money from the appellee. For this extraordinary proceeding they must point to some statutory authority, for it can exist nowhere else. It is no answer that the appellee defrauded the state and ought how to be compelled to pay, for, whatever may be the moral aspect of the case, it is his right when, at this late day, the appellants would impose taxes upon him, which, if ever due, ought to have been imposed years ago, to ask for and be shown the statute under which they would now compel him to pay.

By the acts of 1885 and 1889 the commonwealth undertook to protect itself from the failure of a taxable to make a proper return, and, if it did not sufficiently do so, it is not his fault. The returns made by the appellee from 1885 are to be regarded as false, for he did not return during that period all of his personal property liable to state tax. In now undertaking to reassess him for these twenty-three years, the appellants insist that théy have authority to do so under section 1 of the Act of 1889, P. L. 420, which provides that no failure to assess or return personal property shall discharge the owner or holder thereof from liability therefor to the commonwealth. The act of 1889 was not retrospective, but, aside from this, Schmuck made a return in each year from 1885 to 1907. If he had not, his liability to the commonwealth, would, of course, have continued under the first section of the act of 1889; but in each year from 1889 to 1907 that liability was to be fixed by the county commissioners in the way pointed out by section 5 of the act. If the returns made were false, the liability of the appellee was to be ascertained in the way pointed out by sections 11 and 12 of the act. No other mode appears in that act or any other for fixing the liability of a taxable who makes a false return, and no other, therefore, exists. The mode pointed out in the act of 1889 for fixing liability to the commonwealth, either upon a failure to make a return or upon a false return, must be pursued each year, for in each year the tax is to be assessed and paid.

What was attempted by the appellants here was attempted in Williamson’s Estate, 153 Pa. 508. In 1888 Williamson failed to make any return of his personal property to the assessors. They estimated his taxable personal estate at $45,000 and assessed him with that amount. The board of revision of taxes added fifty per cent by way of penalty, and the assessment, as corrected and revised by them, was $67,500. The taxes on this were paid. Two or three months after their payment, and in the following year, Williamson died, the inventory of his estate showing personal property amounting to $2,500,000. In April, 1888 — six months after he should have made his return in 1887 — the board of revision of taxes made a new assessment, without the intervention of the assessors, fixing the amount of the personal'estate at $2,500,000 and adding a penalty of fifty per cent. This court held that the second assessment was improper and void, and that the county of Philadelphia, having received the whole amount of the tax under the first assessment, could recover nothing more from the estate. In the course of his opinion Mr. Justice "Williams said: If the decedent had made a false return and so misled the board a very different question would be raised. He simply declined to give any information.” Hpon this these appellants lay great stress, but it is to be regarded as mere obiter dictum. The question of a false return was not in that case. If it had been, this court would have been compelled to hold that the only remedy the state has for a false return is the one which is provided by itself in the 11th and 12th sections of the act of 1889, and no other can be pursued.

Taxation is purely for the legislature. The judiciary can enforce it only as the legislature directs it to be enforced. For cases like the present additional legislation is manifestly needed, but, until it is enacted, the commonwealth must submit. Appeal dismissed at appellants’ costs.