Pittsburg, Fort Wayne & Chicago Railway Co. v. Commonwealth , 1870 Pa. LEXIS 278 ( 1870 )

The opinion of the court was delivered, July 7th 1870, by

Thompson, C. J.

— We have examined with care the charge of the court below in the case, and think it needs no discussion at our hands. We regard it as free from error, and a satisfactory explanation of the various Acts of Assembly and principles of law necessary to a proper decision of the case.

The case of Maltby v. the Reading Railroad Co. rules most of the positions assumed as errors, and fully sustains the learned judge in his charge.

That case, so far as the taxation of the capital of foreign residents is concerned, was substantially sustained by and is in accordance with The Borough of Carlisle v. Marshall, 12 Casey 397, West Chester v. Darlington, 2 Wright 157, and Lewis v. The County of Chester, 10 P. F. Smith 325.

But as we are entirely satisfied with the opinion of the learned judge on all the questions raised below in the case and presented for his consideration, we will add nothing, but affirm the judgment for the reasons so well given therein. The question raised in the court upon the Act of 30th April 1864 seems not to have been suggested in the court below. It was not noticed in the charge, nor was the attention of the court called to it; all reference to it was omitted.

We have often held that an omission to charge on any particular aspect of the law of a case where it does not necessarily present itself, is not error in the absence of a request to notice it: Mullen v. Wilson, 8 Wright 413; Garrett v. Gonter, Id. 143; Walter v. Humbert, 5 P. F. Smith 407. That is the case here. No point was put to the court on the subject, nor did any plea in the case raise it.

The omission was therefore not the subject of error; nor indeed is there any assignment of error which covers 'it. One rule of court is, “ that the counsel for plaintiff in error shall, on or before the third day of the term to which the writ is returnable, specify in writing the particular errors which he assigns.” That rule has not been followed even if the omission referred to had been the subject of error. It may have been an after-thought which the allowance of an exception to the whole charge as if every word of it were error, so readily allows. An exception to a charge has a twofold purpose to subserve. One to bring directly to the mind of the judge the specific error he is supposed to have committed, so that he may have the opportunity to correct it, if it exist, on the spot before the jury shall have acted. The other is that if no correction be made of the error thus pointed out it may hereafter be brought before the court of review.

It is apparent that there is no chance for the correction by the court of any specific error, where every portion of the charge is excepted to as error. A general exception discloses no specific errors. The practice is a bad one, and the Court of Common Pleas ought to repress it. I do not know that it prevails elsewhere, if it does, it is to a very limited extent in this state.

Judgment affirmed.