plaintiff, but by setting aside the dismissal and reinstating the bill with a procedendo.

[Ed. Note.-For other cases, see Equity, Cent. Dig. § 775; Dec. Dig. § 368.*]

4. INJUNCTION (§ 119*)-SUBJECTS OF PROTECTION-AGREEMENT NOT TO ENGAGE IN BUSI

NESS.

On a bill to restrain the breach of an agreement not to engage in a certain business for a stipulated period, an averment in the answer that the written agreement had been rescinded, and an oral agreement substituted, in which there was no such restriction, is responsive; and, if not overcome by proof, the bill is properly dismissed.

[Ed. Note.-For other cases, see Injunction, Dec. Dig. § 119.*]

5. INJUNCTION (§ 61*)-SUBJECTS OF PROTECTION-AGREEMENT NOT TO ENGAGE IN BUSI

NESS.

A claim for an injunction to restrain the breach of an agreement 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 complainant, is without foundation, where such method of extracting teeth was neither invented nor used exclusively by complainant.

[Ed. Note.-For other cases, see Injunction, Dec. Dig. § 61.*]

Appeal from Court of Common Pleas, Philadelphia County.

Bill for an injunction by John D. Thomas against Walter A. Borden. Decree for defendant dismissing the bill, and complainant appeals. Affirmed.

Argued before FELL, BROWN, MESTREZAT, POTTER, and ELKIN, JJ.

George Wharton Pepper, Henry J. Scott, A. Culver Boyd, and John G. Johnson, for appellant. Alex. Simpson, Jr., and Smithers & Lank, for appellee.

BROWN, J. 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 under 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 any one 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 any one else, the business of extracting teeth by the use of nitrous oxide gas or anæsthesia, 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 30 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. Very 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 30 per cent. of the gross receipts, plus $15 for each week during which the plaintiff should be absent, I to forward his share of the receipts to whereever 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.

(222 Pa. 156)

CANOLE v. ALLEN et ux. (Supreme Court of Pennsylvania. June 23, 1908.)

1. APPEAL AND ERROR (§ 719*)-REVIEW-ERRORS NOT ASSIGNED.

Ordinarily the Supreme Court is not concerned to inquire into errors not specifically assigned; and, 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 reference thereto, the Supreme Court will assume that the departure was made by mutual consent.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2968; Dec. Dig. § 719.*] 2. APPEAL AND ERROR (§ 719*)-REVIEW-ERRORS NOT ASSIGNED.

Where a departure from established rules and procedure is in clear disregard of recognized public policy, or in violation of statute, the Supreme Court will take notice of the error whether assigned or not, and will take notice of such an error as permitting a husband to testify against his wife, though not assigned as error. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 2974; Dec. Dig. § 719.*] 3. WITNESSES (§ 36*)-COMPETENCY-HUSBAND AND WIFE.

Act May 23, 1887 (P. L. 159) § 5, is more than confirmatory of the common-law rule that husband and wife are incompetent to testify against each other, and forbids either of them to testify against the other.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 79, 125; Dec. Dig. § 36.*] 4. WITNESSES (§ 62*) - COMPETENCY - HUSBAND AND WIFE.

Connivance by the parties cannot evade Act May 23, 1887 (P. L. 159) § 5, providing that neither the husband nor wife shall be permitted to testify against the other, nor can indulgence by the court.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. 177; Dec. Dig. § 62.*]

5. WITNESSES (§ 52*)-COMPETENCY-HUSBAND AND WIFE.

Under Act May 23, 1887 (P. L. 159) § 5, providing that neither the husband nor wife shall be permitted to testify against the other, it was error, in trespass against a husband and wife,

to permit the husband to be called by plaintiff as for cross-examination, and to testify that he was acting as his wife's agent in the commission of the trespass, where his participation was not questioned, and the sole object was to involve the wife.

[Ed. Note. For other cases, see Witnesses, Dec. Dig. § 52.*]

6. WITNESSES (§ 52*) - COMPETENCY - EVIDENCE OF HUSBAND.

In trespass against a husband and wife for the wrongful removal of a building erected by them on plaintiff's lot under a mistaken belief as to title, the husband was called by plaintiff, as for cross-examination, and testified that the lot with the building on it was worth seven times the value of the lot without the building. Held that, though such testimony might be regarded as an admission by the husband and conclusive against himself, it was inadmissible as against the wife, and did not authorize directing a verdict against her.

[Ed. Note.-For other cases, see Witnesses, Dec. Dig. § 52.*]

7. DAMAGES (§ 208*)-EVIDENCE- QUESTIONS FOR JURY.

In an action against a husband and wife to recover damages for the alleged wrongful removal of a dwelling house from plaintiff's land, where the only evidence as to damage was absolutely incompetent, and, if considered as an admission by the busband and conclusive against him as against his wife, was but an expression of opinion, it was reversible error to direct a verdict and not to submit the question of damages as to the wife to a jury.

[Ed. Note. For other cases, see Damages, Dec. Dig. § 208.*]

Mitchell, C. J., dissenting.

Appeal from Court of Common Pleas, Luzerne County.

Trespass by John F. Canole against Walter J. Allen and wife for damages for the wrongful removal of a dwelling house from plaintiff's land. Judgment for plaintiff for $2,300, and defendants appeal. Reversed.

Argued before MITCHELL, C. J., and FELL, MESTREZAT, POTTER, and STEWART, JJ.

M. J. Mulhall and John McGahren, for appellants. John T. Lenahan and James L. Lenahan, for appellee.

STEWART, J. 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 some one 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. Restrictions 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 crossexamination; 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." Section 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 Deen 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 because 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.

(75 N. H. 586)

STEVENS v. STEVENS et al. (Supreme Court of New Hampshire. Hillsbor ough. Oct. 9, 1908.)

GIFTS (§ 49*)-EVIDENCE-SUFFICIENCY.

Evidence held to sustain a finding that sums paid by a trustee to cestuis que trust in excess of 6 per cent. interest on the trust fund constituted a gift.

[Ed. Note.-For other cases, see Gifts, Dec. Dig. § 49.*]

Exception from Superior Court, Hillsborough County.

Action by Calvin A. Stevens, trustee, against Helen L. Stevens and another. From a judgment for defendants, plaintiff brings exception. Exception overruled.

George D. Beattys, for plaintiff. George B. French, for defendants.

MEMORANDUM. Probate appeal. The appellant received the fund in controversy as trustee under the will of William Stevens. He did not invest the fund, but commingled it with his own estate, and paid over from time to time various sums to the cestuis que trustent, who were entitled to the income. The sums so paid exceeded 6 per cent. interest on the fund, for which the trustee consented to be charged. It was found that the excess was a gift from the trustee to the beneficiaries. The trustee excepted to this finding, upon the ground that there was no evidence to support it. As such evidence was found in the manner in which the trust was conducted for a long period and from the relations of the parties, and in letters and oral admissions of the trustee, the order was: Exception overruled.

PEASLEE, J., did not sit.