author: Mr. Justice Sharswood

text:
    Kimble, Administrator, &c., of McBride, versus Carothers, Administrator, &c., of Lusk.
    1. Sarah Lusk and McBride lived together in his house until her death; after his death all the goods, money, &c., in the house were taken as his by his administrator; her administrator sued his in assumpsit, alleging that the money, &e., were hers, and he had taken them in his lifetime: Held, that although McBride’s possession was originally tortious, the plaintiff might waive the tort and recover for money had and received for her use.
    2. It was an action to establish a debt against McBride’s estate properly brought in a common-law court, not Involving any question as to the amount of McBride’s estate within the exclusive jurisdiction of the Orphans’ Court.
    3. In the action by Sarah Lusk’s administrator against McBride’s administrator, the children of her deceased brothers and sister were not competent as witnesses under the Act of April 15th 1869, the suit being between administrators.
    4. The witnesses did not claim by devolution under a deceased owner respecting his right; but from two parties whose rights were adverse.
    5. Sarah was sister of Isabella, McBride’s wife, who survived her and died before McBride: Held, that evidence of declarations of McBride that Isabella was not his wife, were irrelevant, Sarah’s administrator suing to recover her property.
    6. A number of the Lusk brothers and sisters, including Sarah and Isabella — and McBride after his marriage — lived together on the farm of their father, until their respective deaths, intestate and without issue. Evidence of their ownership of property thirty years or more previously to Sarah’s death was admissible on the question whether she owned property in the house at her death.
    March 29th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Lycoming county: Of January Term 1875, No. 184.
    This was an action of assumpsit, brought November 11th 1874, by Andrew Carothers, administrator, &c., of Sarah Lusk, deceased, against Nathan B. Kimble, administrator, &c., of John McBride, deceased.
    The declaration was filed January 18th 1875; it was in the common counts, and on a special count, in which the plaintiff claimed “ from defendant the value of the following goods and chattels, the property of Sarah Lusk, seized and sold by the defendant as the property of John McBride;” the goods, &c., were contained in a list in the declaration and amounted to $914 ; “ also the following sums of money, in gold, silver and paper money, the property of Sarah-Lusk,” these, as contained in list in the declaration, amounted to $6857.16.
    John McBride and Isabella, his wife, were murdered by Nelson E. Wade, on the 22d of July 1873; when found, Isabella was dead, John when found was insensible; he survived until July 27th, when he died. Sarah Lusk, the plaintiff’s intestate and sister of Mrs. McBride, lived in the house with McBride and his wife until March 1872, when she died intestate, unmarried and without issue. These sisters were children of Patrick Lusk, who died in 1816, leaving nine children, of whom seven died before Sarah, only two of them leaving issue, most of whom were living at Isabella’s death; she also died without issue. The inventory of John McBride’s estate amounted to $7442.10.
    Both the chattels and the money — with the exception of some found where Wade, the murderer, confessed he had hidden it— were found in the house of McBride — the money in parcels, in stockings, chests, books, &c. The claim of the plaintiff was, that most, if not all of the chattels and money, were the property of Sarah.
    The case was tried February 1st 1875, before Gamble, P. J.
    1. Samuel Lusk, the son of James Lusk, a brother of Sarah, who died before her, was called by plaintiff, who proposed to prove by him that his uncles John and William, and his aunts, Elizabeth and Sarah, lived from the time of their father’s death until their respective deaths, on the homestead farm, working together and keeping their property at the homestead — this, with other proof, to show what property Sarah Lnsk was possessed of at the time of her death.
    Defendant objected, because the witness is not competent to prove the matter offered,' and it is irrelevant.
    The evidence was admitted, and a bill of exceptions sealed.
    The witness testified that the children of Patrick Lusk were Elizabeth, who died in 1845, Ann, who died in 1847, William, who died in 1853, Robert, who died in 1857, John, who died in 1859, Sarah, who died in 1872, and Isabella, who died in 1873, none of them leaving descendants; also, James, who died in 1845, and Ann, married to John Crydon, who died in 1872, both leaving descendants.
    He said further1: “ Uncle John Lusk lived in the old mansion house until his death, in 1859. John farmed a portion of the old .homestead farm; he and William lived in the homestead together. Aunt Elizabeth and Sarah lived down at the river on a part of the homestead farm. They both died upon the farm; Elizabeth in the well at the river, and Sarah at the old homestead house.”
    5. Martha Skudder, a daughter of James Lusk, was called by plaintiff, who offered to prove by her that John Lusk, William Lusk, Elizabeth Lusk and Sarah Lusk lived upon the farm of their father, Patrick Lusk, from the time of the death of their father until their respective deaths ; that the said brothers and .sisters were industrious and frugal, and saved a large amount of money and property, and that said money and property were kept at the homestead' where they died, and were there at and after the death of Sarah; to be followed by proof that after the death of John McBride, the defendant in this case, or his administrator, took possession of all of said property as belonging to said McBride, and sold it as his administrator, .and reported the proceeds in the Orphans’ Court of this county. ■
    The defendant objected, because the witness was interested in the event of this suit, and is incompetent to testify on behalf of the plaintiff; the evidence offered is irrelevant; and the defendant, as administrator of John McBride, could not be made liable in this action for the value of articles coming into his hands as administrator since the death of John McBride, at the suit of the plaintiff; and therefore the offer, so far as it is intended to prove that defendant did receive and take into his possession the money and goods 'mentioned in the offer, is inadmissible. ■
    The evidence was admitted, and a bill of exceptions sealed.
    Witness testified that about thirty-five years previously she lived with William and John Lusk on the homestead. Witness gave a statement of the household goods then in the house. William and Elizabeth were weavers ; they wove linen plaids; they raised the flax on the farm. John and William worked together on the farm. When they sold produce, they divided the money and put it away. She never knew them to put their money out.
    Other witnesses testified in the same manner, their knowledge having been acquired about the same time.
    Henry Apker testified that when McBride came into the neighborhood, between thirty and forty years previously, he hired with Elizabeth Lusk to work on the farm.
    3. Plaintiff proposed to show by this witness, that the Lusk family, with whom he was living, gave notice to a tavern-keeper in their neighborhood that no liquor should be furnished McBride, and that when the tavern-keeper informed McBride of this notice,- and that it was given by Isabella, that McBride denied that Isabella was his wife; to be followed by proof that McBride did not after-wards acquire any property ; this for the purpose of showing that McBride had no property, and was of intemperate habits, and that he denied that Isabella was his wife.
    This objected to by defendant, because the time referred to was too remote, and it was irrelevant.
    The evidence was admitted and a bill of exceptions sealed.
    Witness testified in accordance with the offer.
    Samuel Smith testified that in 1840 he was working for McBride; “ Elizabeth charged McBride with trying to steal her money ; half an hour afterwards I saw her' going through the fields towards her brother’s; I was sent for to help take Elizabeth out of the well; it was down at the girls’ house; McBride told me that her brothers denied having her money and she went down and jumped into the well; he said her money was afterwards divided between the brothers and sisters; John and William were living at the upper house; Sarah, Isabella and McBride at the lower house. I left in 1847 ; have had no knowledge of the Lusk family since that time.”
    John Lusk, a son of James, testified as to the goods in the house, stock on the farm, &c.; also : “ I was there a few days after Elizabeth’s funeral; was there at the appraisement; McBride said he thought the cause of her drowning was that John and William got her to take her chest of money up to their house, and afterwards refused to let her have it; he said it was a large amount of money; * * * it was right after her death, or within a few days; think I had no conversation with McBride after that about that; twelve or fourteen years before McBride’s death was the last time I was there.”
    Elizabeth Brewer, a daughter of James, testified : “Uncle William had a white chest in the back room; he had the lid up and went out after a drink of water, and I went in and saw lots of silver and two sacks, I could not tell what was in; think the chest was over half full; * * * two sacks made of home-made linen; hold half a peck a piece ; both full; the chest was over half full; all kinds of silver coin ; I was eight years old at that time.”
    George W. Lusk, a son of James, testified as to the goods,'&c., at the farm; also: * * * “Aunt Betsey had silver tea-spoons; butter dishes ; they had considerable silver and gold there; they kept it in bureaus, cupboards and stuck all around in different places; * * *• in 1845 I lived with John McBride; was going on fifteen years then; I am speaking of twelve or fifteen years ago; John and William were both alive when I was there in 1847 visiting; it was three or six months before the death of William that I am speaking of; * * * I was there after the murder two or three days; I found the same chest I made for John McBride; it was bursted open.” * * *
    Doctor Goehrig testified, “ I am the coroner of the county; held the inquests over the bodies of John and Isabella McBride ; went into the bedroom and in drawers found bundles of papers with money stuck in among them, and little papers with gold and silver in them. Meginness kept a memorandum of what we found the first day, $2514.25, in paper and silver generally; this we found down stairs; think there were national bank notes and West Branch Bank notes, in small packages, put around in the drawers and in crocks with garden seeds over them; up stairs there were old boxes bursted open; everything torn up; a small room, one or two beds, all covered with old trash; several old chests, forty or fifty years old from appearance; the chest was broken open and I found these old bags and stockings under the bed; there was money in them concealed in the bed; $2739.05 in the one room up-stairs; in the bureau was an old almanac with about $300 in it, that is in the $2739.05 ; I counted $5727.63 Sheriff Piatt took charge of it and took it to Powell & Co.’s bank.”
    Other persons present at and about the time of taking the inquest testified substantially, as the coroner.
    The defendant was called and testified that the goods found and the moneys, &c., deposited in bank passed into his hands.
    4. Plaintiff offered petition of defendant, read in Orphans’ Court, November 16th 1874, representing that claim had been made before the auditor, in estate of John McBride, for the claim in this suit, that the suit in this case had been commenced, and asking the court to place the case at the head of the list for trial at this term; also, order of the court endorsed on the petition and certificate from clerk of the Orphans’ Court of said order filed in this case January 13th 1875. These offered as part of the proceedings in this case, and as the acts of the defendant, and to explain why the case on trial was placed at the head of the trial list for this term, and also to explain the nature of the issue.
    The defendant objected to the offer, because:—

      1. Neither the petition nor the order are any part of the proceedings in this case.
    2. No explanation is necessary either to court or jury of why this case was ordered to the head of the list.
    8. The declaration and the pleas form the issue in this case, and they cannot be “explained” by a petition presented to the Orphans’ Court.
    4. The offer is irrelevant and not evidence under the pleadings.
    The offer was admitted and a bill of exceptions sealed.
    The petition set out that defendant, as administrator, had filed his account, which was confirmed September 2d 1874, and an auditor appointed to report distribution of the funds in his hands ; at a sitting of the auditor November 11th 1874, the heirs of Sarah Lusk presented a claim for $5530.13; on the same day this action was commenced in the Court of Common Pleas to recover that sum of money ; that the auditor adjourned the hearing to November 17th 1874; that the defendant was willing to pay the money in his hands to whomsoever was entitled to receive it, &c. He prayed the court to place the case in the Common Pleas at the head of the trial list for January Term 1875, and order that the defendant might employ counsel to defend the suit, the expenses to be allowed as a credit in his account.
    The court made an order as prayed for, allowing counsel to be employed and directing the case to be placed at the head of the list for January Term 1875.
    5. Plaintiff offered the record of amicable partition of real estate, viz.: homestead farm in Woodward township, dated April 27th 1824, being division of said farm amongst Isabella, Elizabeth, Sarah, Ann, William and John Lusk, to be followed by proof that Sarah Lusk and the other parties took possession of their respective purparts and enjoyed the proceeds of the same during life, and also on whose lands John McBride lived during his life. This offered as evidence on. the question of the ownership of the personal property found on the premises after the death of McBride.
    Defendants objected, because:
    1. The offer is irrelevant, and title to personal property cannot he shown in the manner proposed, and the offer is to prove matters too remote.
    2. Not admissible under the pleadings.
    The evidence was admitted and a bill of exceptions sealed.
    Under similar objections and exceptions plaintiff gave in evidence deed of Robert Lusk to Sarah Lusk, dated December 4th 1847, for his interest in Elizabeth’s purpart, also devise of William Lusk of all his property, real and personal, to his brother John ; also devise of John Lusk of all his property, real and personal, to Sarah Lusk and Isabella McBride; also deed of Sarah Lusk, dated June 28th 1871, of all her real estate to John McBride and Isabella McBride for the consideration of $3000.
    6. Plaintiff proposed to testify that he could find no notes or securities of the estate of decedent, and the only personalty was that taken by N. B. Kimble, administrator of McBride ; also, that from the time that Sarah Lusk, conveyed her real estate to McBride and wife for the sum of $3000, in June 1871, until March 1872, the time of her death, she was sick and remained in the house occupied by McBride and by her, and being the same house in which the money and property taken by defendant were found by the coroner’s jury ; for the purpose of showing what personal property and money Sarah had at the time of her death, and where said money, &c., was at that time.
    The defendant objected, because he could not be charged in this action upon evidence of the character offered; it was not evidence under the pleadings and was irrelevant.
    The evidence was admitted and a bill of exceptions sealed.
    Plaintiff said: “ I ,was not able to find any securities or any personalty other than those found by the coroner’s jury. I live about a quarter of a mile from her; knew Sarah in her lifetime; she was living in the old mansion-house at the time of her- death ; not able to go from the house to the barn without being helped for two years before her death.”
    Allison Cryder testified: “ I was at the house of Sarah Lusk and McBride’s ; saw McBride sell hay, &c., proceeds of the farm ; I saw John divide the proceeds into three shares and give Sarah and Isabella each one share and keep the third; was there last about two years before Sarah’s death: I stayed all night; Sarah slept up-stairs while I was there; I saw John help her up and down while I was there; John said she had slept up there ever since she had come there and still wanted to.”
    Plaintiff rested.
    Defendant offered to testify that after he was appointed administrator of John McBride, he had several interviews with Nelson E. Wade, who had robbed and murdered McBride and his wife; that in said interviews Wade informed him that he had taken a large amount of gold and silver from the house of McBride and had hid it so effectually that no one could find it; that he intended to give information of the place of hiding to some poor man, so that he could obtain it and not the relatives of McBride.
    This for the purpose of proving that money had been taken from the house of John McBride by the said Wade prior to the death of McBride, and that the said money so taken did not come into the hands of the administrator.
    The plaintiff objected, because the evidence was hearsay and irrelevant. It was rejected and a bill of exceptions sealed.
    Defendant testified: “ Nelson E. Wade directed us where to find the bag of silver and it was by information received from him that I had the search made in the creek; a month after the robbery found the bag of silver; * * * I took possession of all the papers of John McBride that I could find at the house; I got some promissory notes payable to John McBride from Powell’s; I made a thorough search of the whole house for all that I could find;' I have examined all the papers ; these are all the papers, except a note or two not collected, payable to John McBride; the first claim made or notice I had of any claim was before the auditor on the eleventh of November last; Messrs. Allen and Youngman (were counsel) for Lusks.”
    The defendant gave in evidence a bill of sale, dated June 29th 1871, from Sarah Lusk to John McBride, by which, for the consideration of $50, she sold to him “ all the goods, household stuff and implements of household, and all other goods and chattels, remaining and being in the house occupied by the said John McBride.”
    The schedule of the articles exhibited a few articles of household furniture of small value, amounting'in the whole, according to the prices affixed to each, to $50.
    Defendant gave in evidence the administrator’s account of the estate of Elizabeth Lusk, showing a balance of $305.78 due the estate.
    After the evidence on both sides had been closed, the court, under objection and exception, allowed the plaintiff to file an amended declaration, charging, in the common counts, indebtedness by John McBride to Sarah Lusk, in her lifetime.
    The court, under objection and exception, allowed the original declaration and bill of particulars to go out with the jury.
    The defendant’s points and the answers were:—
    1. An administrator is answerable, in his official character, for no cause of action that was not created by the. act of the decedent himself; the present action being brought against the defendant as administrator of John McBride, upon an alleged implied promise arising out of acts of the defendant personally since the death of John McBride, there can be no recovery in the present form of action, and the verdict must therefore be for the defendant.
    Answer: “If this action is founded upon acts of the defendant personally since the death of John McBride, then the law would be as stated in this point, and the verdict must be for the defendant. But the plaintiff claims that the evidence does show that John McBride has the possession of assets belonging to the estate of Sarah Lusk, and that his estate is therefore liable to account for the same. This involves a question of fact which you must determine.”
    2. The plaintiff having failed to produce any evidence which would warrant the jury in finding that any part of the money or other personal property of which John McBride died possessed, and which came to the hands of the defendant as his administrator, belonged to Sarah Lusk, the plaintiff’s intestate, or that the said John McBride was liable to account to the said Sarah Lusk at the time of her death, or to her administrator since her death, for any moneys had and received by the said John McBride for the use of Sarah Lusk, he, the plaintiff, has not shown any right to recover in this action, and the verdict must therefore be for the defendant.
    Answer: “ The evidence is for the jury. We decline to say peremptorily that there is no evidence which would warrant the jury in finding that any part of the money or other personal property which came into the hands of defendant as the administrator of John McBride, belonged to Sarah Lusk, the plaintiff’s intestate, but leave that as a question of fact for you to determine under the evidence, adding that it is incumbent on the plaintiff to establish that fact, to authorize a verdict in his favor.”
    3. If the jury believe, from the evidence, that the death of John McBride and Isabella his wife occurred in such a manner and was attended with circumstances such as would make the occurrence generally and extensively known; that soon after the death of John McBride letters of administration upon his estate were issued to the defendant, who proceeded to make an inventory of the property; that defendant caused search to be made in the manner testified to by him for money supposed to have been stolen and secreted; that he afterwards made public sale, at the residence of John McBride, of his goods and chattels ; that he afterwards filed an account in the office of the register, charging himself, as administrator, with the money and property in dispute in this action ; that his account was confirmed, without any exception, by the heirs of Sarah Lusk ; and that an auditor was appointed by the Orphans’ Court to distribute the balance in the defendant’s hands ; and if they further believe that the death of Sarah Lusk occurred two years, or thereabouts, prior to that of John McBride; and that no claim was made by the heirs of Sarah Lusk upon John McBride, in his lifetime, nor the defendant, after his death, until this action was brought, the evidence to support the demand made here must be clear and satisfactory; and the plaintiff having failed to produce any such evidence, the verdict must be for the defendant.
    Answer: “We affirm this point, except the concluding clause, which assumes that the plaintiff has failed to produce any .such evidence. The weight and clearness of the evidence is for the j^y.”
    5. Upon the whole case, as presented by the evidence, the plaintiff has failed to show any right to recover, and the verdict must therefore be for the defendant.
    The court refused this point.

      4. The Orphans’ Court of Lycoming county has exclusive authority to ascertain the amount of the property of John McBride, and to make distribution thereof, not only amongst the next of kin, but also amongst creditors; the plaintiff, therefore, cannot maintain this action, but must seek his remedy in the Orphans’ Court.
    The court reserved this point without answering it, and charged, * * * ._
    “ The controversy is one of fact chiefly; the plaintiff alleges that a portion of the money and other assets which fell into the hands of the defendant as of the estate of John McBride, belonged to the estate of Sarah Lusk, and asks a verdict for the value of the same. This is denied by the defendant, and his counsel insists that there is not sufficient proof in the cause to warrant such a verdict. There must be evidence sufficient to produce conviction upon your minds of the truth of the plaintiff’s allegations to warrant a verdict in his favor. All verdicts must he founded on evidence. Juries are not at liberty to guess or judge without evidence what would be fair or equitable between parties, but of the value and weight of evidence you are the exclusive judges under the responsibility resting upon you as jurors.
    “ [It may not always be practicable for parties to produce proof positively and precisely defining amounts, quantities or values, yet if from an impartial consideration of all the evidence in the cause, a right of recovery is established to the satisfaction of a jury, and there is evidence from which they can substantially ascertain amounts, quantities or values, that is sufficient proof to warrant a verdict.]”
    The verdict was for the plaintiff for $4900.54.
    The court afterwards entered judgment as follows on the reserved point:—
    “And now, to wit, February 6th 1875, the question of jurisdiction raised by the defendant’s fourth point, reserved for consideration by the court, is ruled by declining to give the instruction asked for, and maintaining the jurisdiction of the Common Pleas. The issue in this case is not formed for thq purpose of ascertaining the amount of the estate of John McBride, nor for the purpose of its distribution, but is the common issue in an action of indebitatus assumpsit to determine the liabilities of the decedent to this plaintiff. And although the result may have the effect to lessen the amount for future distribution, or to increase the claimants or distributees, that result is only incidental and consequential, and cannot oust the jurisdiction of the Common Pleas.
    • “ It is therefore ordered that judgment be entered for the plaintiff on the verdict upon the payment of the jury fee.”
    The defendant took a writ of error, and assigned the following errors :—

      1-6. The admission of evidence mentioned in the defendant’s bills of exception to the plaintiffs’ several offers of evidence.
    7. Rejecting the offer of evidence by defendant as contained in her bill of exceptions.
    8. The part of the charge in brackets.
    9 — 12. The answers to the defendant’s 1st, 2d, 3d and 5th points. •» 13. The answer to defendant’s 4th point — the reserved point— and the entry of judgment on it for the plaintiffs on the verdict.
    14. Allowing the original declaration to go out to the jury.

      II Q. Parsons and W. H. Armstrong (with whom were O. K. Gfeddes and S. Linn), for plaintiffs in error.
    — A distributee is not a competent witness in the distribution of a decedent’s estate as to transactions in his lifetime : Eshleman’s Appeal, 24 P. F. Smith 42; Karns v. Tanner, 16 Id. 297; Allum v. Carroll, 17 Id. 68; Craig v. Brendel, 19 Id. 155.
    The evidence of conversion was simply that after the death of McBride an examination of the premises disclosed that $5313.66, in large and small amounts, were found in numerous packages in the bureau and cupboard down stairs, and in a trunk or chest up-stairs. The whole was found in a house in the exclusive possession of John McBride. The evidence to withdraw it from his estate should be explicit and certain: Petriken v. Baldy, 7 W. & S. 429.
    There is no proof of an actual conversion by John McBride, nor of a demand and refusal which is evidence of a conversion, and there could therefore be no recovery upon the whole case : Willet v. Willet, 3 Watts 277; Pearsoll v. Chapin, 8 Wright 9. An executor or administrator is answerable in his official character for no cause of action that was not created by the act of the decedent himself: Siep v. Drach, 2 Harris 356 ; Masterson v. Masterson, 5 Rawle 139.
    There is no evidence from which the jury could determine the amount; the verdict was a mere guess, without any evidence that could he made the basis of a calculation. . The evidence as to any items of specific property owned by Sarah Lusk, is uncertain and remote in the highest degree: Bogle v. Kreitzer, 10 Wright 465; 3 Phillips’ Ev. 404, 417; Leigh’s Nisi Prius 45.
    The jurisdiction of the Orphans’ Court in such a case as this is exclusive : Kittera’s Estate, 5 Harris 416 ; Bull’s Appeal, 12 Id. 286; Whiteside v. Whiteside, 8 Id. 473; Dundas’s Appeal, 23 P. F. Smith 474; Vandyke’s Appeal, 10 Id. 481.

      Gf. W. Youngman and R. P. Allen, for defendant in error. — •
    An objection of a doubtful nature goes to the credit only : Phillips v. Phillips, 8 Watts 198. Where the objection is general, the witness, if competent for any purpose, is rightly admitted : County v. Leidy, 10 Barr 44. To exclude a witness, he must have a certain, not a possible or contingent interest in tbe event of the suit : Lewis v. Manly, 2 Yeates 200; Fernsler v. Carlin, 3 S. & R. 132; Irvine v. Lumberman’s Bank, 2 W. & S. 190; Scott v. Wells, 6 Id. 369 ; Riddle v. Dixon, 2 Barr 374. If a witness be interested in tbe question, but not in the verdict, it goes to his credit, but not to his competency : Cornogg v. Abraham, 1 Yeates 84 ; Thomas v. Brady, 10 Barr 167; Youst v. Martin, 3 S. & R. 427; Boyer v. Kendall, 14 Id. 178; Cornell v. Vanartsdalen, 4 Barr 364; Nass v. Vanswearingen, 7 S. & R. 193 ; Hays v. Gudykunst, 1 Jones 224. The erroneous admission of evidence by which a party could not have been prejudiced, is not cause for the reversal of the judgment: Johns v. Battin, 6 Casey 84; Bunting v. Young, 5 W. & S. 188.
    The witnesses were competent under the first section of the Act of 15th April 1869. That act applies to all issues and inquiries by or against administrators, &c., respecting the rights of deceased owners, between parties claiming such rights by devolution upon the death of such owners. In such issues and inquiries no interest or policy of law shall exclude any party or person: Craig v. Brendelf 19 P. F. Smith 153.
    Assumpsit, though in form an action on a promise, gives effect to the same principles that are administered in a bill in equity : Menges v. Oyster, 4 W. & S. 23; Lee v. Gibbons, 14 S. & R. 111; Witherup v. Hill, 9 Id. 11; Logan v. Richardson, 1 Barr 372; App v. Lutheran Congregation, 6 Id. 201.
    In many cases where one has received goods wrongfully, a contract of purchase will be inferred, and the owner may waive the tort and recover for goods sold and delivered; Sitzell v. Triebel, 14 P. F. Smith 383; Deysher v. Michael, 3 W. & S. 331.
    The jurisdiction of the Orphans’ Court is not exclusive of common-law remedies against the estates of decedents; McLean v. Wade, 3 P. F. Smith 149; Sergeant v. Ewing, 6 Casey 75; Lewis v. Lewis, 1 Harris 79. The common-law courts have concurrent jurisdiction with the Orphans’ Court, of an action against executors to recover a claim against the estate of a decedent: Swain v. Ettling, 8 Casey 486; Dyer’s Appeal, 3 Grant 328; Musselman’s Appeal, 15 P. F. Smith 480.
    May 8th 1876.
   Mr. Justice Sharswood

delivered the opinion of the court,

This was an action of assumpsit, brought in the court below by the administrator of Sarah Lusk, deceased, against the administrator of John McBride, deceased, to recover a sum of money of which it was alleged that McBride had taken possession before his death, and which belonged to Sarah Lusk. It is clear, that though McBride’s possession might have been tortious originally, yet the plaintiff below had a perfect right to waive the tort and recover in the court below for money McBride had received to the use of Sarah Lusk. It was an action to establish a debt against the estate of McBride, properly brought in a common-law court, and not involving the necessity of determining any question as to the amount of McBride’s estate within the exclusive jurisdiction of the Orphans’ Court: Sergeant v. Ewing, 6 Casey 76; Swain v. Ettling, 8 Id. 486; McLean’s Ex’rs v. Wade, 3 P. F. Smith 146. There was no error then in the decision of the court below, which forms the ground of the thirteenth assignment of error.

It appeared that two brothers and four sisters, children of Patrick Lusk, lived together upon a farm, which they had derived from their father, who died in 1816, leaving other children as well as other property.

The brothers and sisters all died intestate and without issue. Sarah and Isabella survived the others. John McBride lived with them; reputed to have married Isabella. Sarah died in March 1872. John McBride and Isabella continued to live together on the farm until July 22d 1873, when they were robbed and both murdered by one Nelson E. Wade, who was afterwards tried and convicted for the crime. A considerable amount of money was found in different .parts of the house, which was taken possession of by the administrator of John McBride. . The endeavor of the plaintiff below was to show that this money was the money of the Lusk brothers and sisters, which they had acquired by a long course of labor and saving — that at least a moiety of it was the property of Sarah Lusk at the time of her death. Sarah Lusk had purchased of her brother, John Lusk, in 1859, a farm, which, on the 28th day of June 1871, she had conveyed to John McBride and Isabella McBride (formerly Isabella Lusk), for the consideration of $3000. Primá facie this consideration was paid, and it was urged that to that extent there was some evidence to sustain a claim by the estate of Sarah Lusk upon the estate of John McBride. In view of these facts, without referring to other details, it seemed very clear that there was evidence proper, to be left to the jury. It is evident then that the eighth, ninth, tenth, eleventh and twelfth assignments of error, which are all of them predicated of the assumption that there was no sufficient evidence for the jury, must be dismissed.

We think, however, that the first and second assignments of error must be sustained. Samuel Lusk and Martha Scudder, children of James Lusk, a deceased brother of Sarah Lusk, were offered as witnesses by the plaintiff below, objected to as interested in the event of the cause, and therefore incompetent, but the objection was overruled and the witnesses admitted. They would be entitled, as distributees, to a share of the estate of Sarah Lusk. They were directly interested, therefore, that the plaintiff should recover, and prior to the Act of April 15th 1869, Pamph. L.-30, “ An act allowing parties in interest to be witnesses,” were undoubtedly incompetent: 1 Grreenleaf on Evid. 392, and cases there cited ; Mishler v. Merkle, 10 Barr 509. It-must have been supposed by the learned court below that the act referred to rendered them competent. But this was an error. The act declares expressly that it “ shall not apply to actions by or against executors, administrators, or guardians.” It can make no difference that both plaintiff and defendant are administrators.

Even looking beyond the letter to the spirit of the act, that a living party shall not be heard to prove a claim against the estate of a decedent, who was also a party to the contract or transaction, whose lips are now sealed, the admission of these witnesses cannot be sustained. If Sarah Lusk, when living, would not have been competent against the administrator of John McBride, neither can those who stand in her shoes, and will be entitled to a part of the money when recovered. This was not a controversy between parties claiming by devolution under a deceased owner respecting the right of such owner. They claimed not from one but two parties, whose rights were adverse to each other. Neither was their evidence proposed to to be confined to facts occurring subsequently to the decease of John McBride, so as to be within the provision of the supplement of April 9th 1870, Pamph. L. 44.

We think, too, that the third assignment of error must be sustained. It was certainly no objection to the competency of the evidence offered, that the facts occurred more than thirty years ago, and were too remote. That might be an available ground of attacking the credibility of the witness, but that was for the jury. It was relevant to prove the intemperate habits of John McBride, but not in the way proposed, — that the Lusk family had given notice to a tavern-keeper not to trust him. That after all was mere hearsay. Nor was it at all relevant that McBride denied that Isabella was his wife. The plaintiff below was suing as the administrator of Sarah Lusk, who died before Isabella, and was suing to recover her property, not derived from Isabella. Whether Isabella was or was not the lawful wife of John McBride, was not a question relevant to the issue before the jury.

We think there was error in admitting the evidence complained of in the fourth assignment. It was irrelevant that the claim had been made before an auditor in the Orphans’ Court, and nothing to the issue why the case had been ordered to be placed at the head of the list.

We think the court were right in admitting the evidence of the partition of the farm in Woodward township, between the six brothers and sisters, and that they took possession of their respective purparts, and on whose lands John McBride lived during his life. It had an evident bearing upon the main point, whether the money in the house belonged to the Lusks or to McBride. So, also, as to the sixth assignment, the evidence therein complained of being of the same character.

We think the court were right in rejecting evidence offered by the defendant of the declaration by Nelson E. Wade, the robber and murderer, of what he had taken from the house. It was, of course, mere hearsay.

As to the fourteenth and last assignment, it is disposed of by Hall v. Rupley, 10 Barr 231, where it was held that although a withdrawn declaration and a bill of particulars delivered under it ought not to be taken out by the jury, yet the judgment will not be reversed if the declaration is in substance the same as the one on which the cause was tried, and the bill is but a statement of the claim of which evidence was given on the trial.

Judgment reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Williamsport versus Richter.
    1. An act creating a Board of Health for a city enacted that the “ board shall employ all such persons as shall be necessary to enable them to carry into effect the provisions of the Act * * * and fix the compensation of the persons so employed and that the expenses incurred by the board should be chargeable on the city. Held, that in the absence of fraud the bill of a physician employed by the board and allowed by them was conclusive on the city.
    2. In an action by a physician against the city to recover such bill, evidence, was not admissible to show that the charges in the bill were excessive.
    March 29th 1876.
    Before Agnew, 0. J., Sharswood, Mhrcur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Lycoming county: Of January Term 1875, No. 198.
    This was an action of assumpsit, brought April 19th 1873 by Augustus Richter against the city of Williamsport.
    On the 25th of June 1872, the president of the board of health of Williamsport appointed the plaintiff and another physician to take care of patients at the small-pox hospital.
    At a meeting of the board of health held December 17th 1872, the plaintiff submitted his bill, amounting to $460.18. The board resolved that the bill be allowed and the clerk be directed to draw an order for it. The council of the city refused to pay it, on the ground that it was excessive; this suit was brought for its recovery.
    The board of health of Williamsport was created by Act of April 4th 1872, Pamph. L. 950, as follows:—
    Sect. 1. “The city council of the city of Williamsport shall annually * * * appoint a board of health for said city, to consist of one member from each ward, at least two of whom shall be practising physicians.
    “ Sect. 2. That the city council of said city shall have power to remove any or all of the members of said board of health whenever said council shall deem it expedient so to do, and to fill vacancies occurring in said board by death, resignation, removal or otherwise.
    “ Sect. 3. * * * That the city clerk and treasurer of said city shall be ex officio clerk and treasurer of said board; and the said treasurer shall pay, out of the fund appropriated for that purpose by the city council, all orders drawn on him by the president of said board, attested by the clerk. * * *
    “ Sect. 10. Said board shall employ all such persons as shall be necessary to enable them to carry into effect the provisions of this act, and the regulations they shall adopt arid publish, and fix the compensation of persons so employed. * * *
    “ Sect. 12. The expenses incurred by the said board, in the execution of their duties, shall be chargeable upon the said city of Williamsport, and the city council shall annually make provision for the payment of the same, and fix the salaries to be paid to the members and officers of said board.”
    The case was tried February 8th 1875, before Gamble, P. J.
    The plaintiff gave in evidence the minutes of the board of health showing their action on the plaintiff’s bill as above stated; and also his bill as allowed by the board. He then closed.
    The defendants called Dr. W. H. PI. Miller, who testified that he had been a practising physician for about twenty years.
    Defendant’s counsel proposed to ask witness what are the usual charges, by reputable physicians practising in the city of Williams-port, for medical attendance on small-pox patients, and what the witness received from the defendant for the same kind of 'services rendered by the plaintiff. This for the purpose of showing that the charges made by the plaintiff, as appears from the bill in evidence, are exorbitant, excessive, and much greater than the same services are charged for when rendered to private persons.
    Plaintiff’s counsel objected, because the board of health of the city of Williamsport have regularly audited the bill of the plaintiff, and fixed, by a resolution of said board, the compensation due him, and said city, defendant, is bound by the action of the board of health.
    The court rejected the offer, and sealed a bill of exceptions.
    The verdict was for the plaintiff, for $529.90.
    The defendant assigned for error the rejection of the offer of evidence.

      J. A. Beeber, for plaintiff in error.

      S. M. Watson, for defendant in error.

      May 8th 1877.
   Mr. Justice Paxson

delivered the opinion of the court,

We think the learned judge of the court below was right in rejecting the evidence embraced in the assignment of error. The plaintiff’s bill for professional services for attendance upon parties in the small-pox hospital having been formally approved by the board of health, the duty of payment was imposed upon the city. The Act of April 4th 1872, Pamph. L. 950, provides for the appointment of a board of health by the council of the city of Williamsport and defines the duties and powers of said board. By the 10th section it is enacted that “said board shall employ all such persons as shall be necessary to enable them to carry into effect the provisions of this act, and the regulations they shall adopt and publish, and fix the compensation of persons so employed.” The board employed the plaintiff and fixed his compensation. No question of fraud is raised. It is a mere contention as to the value of the service rendered. The board of health, composed in part of physicians, and who employed the plaintiff, are certainly as competent to judge, of the value of his services as the city councils. But under the Act of Assembly above cited this is not an open question, and this judgment must be affirmed.


author: Mr. Justice Woodward

text:
    Grubbs’ Appeals.
    1. After protracted litigation in partition and an allotment of the estate to one of the parties an auditor was appointed to fix the amount of fees to he paid to plaintiffs’ counsel, to be taxed as a part of the costs, under the provisions of the Act of April 27th 1864, who reported §2500 as a proper allowance, which report the court confirmed. Meld, that counsel fees in the ordinary sense as compensation for services in contested causes were not contemplated by the Act of 1864, but that the services for which the statute meant to provide were searches, formal motions, and the preparation of papers and conveyancing.
    2. An order of the Common Pleas for the payment of counsel fees is in the nature of a final judgment and subject to review by the Supreme Court, but the proper form to bring the matter m controversy before this court for review is by writ of error and not by appeal.
    3. It seems that in a proper case, where the equity of the party who seeks relief is clearly made out, where no adversary rights can be impaired, and where it affords the only means of averting an injustice, all the effect of .a writ of error may be given to a certiorari.
    MAy 2d 1876.
    Before Agnew, C. J., Sharswood, Mer'cur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Appeals from the Court of Common Pleas of Lancaster county: Of May Term 1876, Nos. 64 and 112.
    E. Burd Grubb, Henry B. Grubb, Charles R. Grubb and Euphemia P. Grubb; Charles R. and Euphemia P. by their guardian Euphemia B. Grubb, were plaintiffs, and Alfred Bates Grubb defendant, in proceedings in partition, upon the determination of which, the court below fixed a sum to be allowed plaintiffs, as fees of their counsel, to be taxed as part of the costs of said suit, and from the decree of the court making this allowance, both plaintiffs and defendant appealed.
    A certiorari also issued on behalf of the defendant. The proceedings were for the partition of a valuable estate, and the litigation was over a of four
    The summons in partition issued on the 18th of August 1870, a verdict was found for the plaintiffs on the 21st of October 1872, and judgment quod partitio fiat entered on the 18th of January 1873, which judgment taken to the Supreme Court was affirmed on the 14th of July 1873. (See report of case in 24 P. E. Smith 250
    On the 11th of April 1874, the court below decreed that the estate should be allotted to Alfred Bates Grubb, on his bid, for the sum of $175,000, and that the costs of these proceedings in partition, including the fees of plaintiffs’ counsel, to be taxed by the court, or under its direction, should be divided between and be equally paid by the parties.
    On the same day the court appointed O. J. Dickey, Esq., auditor, to report what was a fee.
    The claims of the respective parties are fully set forth in the auditor’s report, as follows:—
    “ The auditor appointed to report what is a proper fee for plaintiffs’ counsel to be taxed in this case under the provisions of the Act of 27th April 1864, met the parties and heard them, and took the evidence herewith submitted. Plaintiffs’ counsel claimed before the auditor $6000, in the aggregate (the three attorneys for plaintiffs claiming together), as a reasonable allowance for counsel fees to be taxed in the case, and the evidence fully sustains such claim as a reasonable sum for services rendered, and if there were no other question presented the auditor would not hesitate so to find and report. The counsel for defendant admitted, and as witnesses when called by plaintiffs, stated that, in their opinion, $6000 was a reasonable charge for the services rendered by plaintiffs’ counsel, but whilst admitting the reasonable character of the charges, object to the same being taxed in the case, claiming that the fees were earned in a case litigated, and were wholly chargeable against plaintiffs individually as litigants and for their own litigation, and in support of that position cited Snyder’s Appeal, 4 P. E. Smith 67. The records, pleadings, paper-books and arguments in the case were given in evidence and disclose the following facts:—
    “ Eirst. That defendant denied plaintiffs’ right to have the partition sought for and resisted with all the power and ingenuity of some of the best legal talent of the state, plaintiffs’ obtaining his judgment. To this resistance of plaintiffs’ right, all manner of legal objections that the highest character of legal acumen could suggest were called in aid, both in the court below and in the Supreme Court. The plaintiffs, however, obtained their judgment and partition was had.
    “ Second. It appears defendant was greatly stimulated in his opposition, in the fear that, if partition were had, he would be greatly prejudiced in the loss or diminution in value of a mining right purchased by him, in connection with the purchase of his interest in the property sought to be divided or appraised. This fear would seem from the opinion of the Supreme Court in the case not to have been well founded.
    “ Thirdly. Jt appears that plaintiffs, when this opposition was made to their proceedings in partition, and resistance of defendant was had, did not by their.counsel simply contend for their right to have partition, and seek only to establish the regularity of their proceedings in substance and form, but accepted the suggestion of defendant’s counsel inspired by their doubts and fears, and attempted to obtain a ruling with much ingenuity and ability that defendant’s mining right, purchased by him as above stated, should be excluded from the proceedings, and in this the Supreme Court were against them. Thus we have a proceeding in partition regularly instituted, properly brought, everything as to substance and form regular and correct, resisted with great ingenuity, ability and skill, needlessly, as the termination of the case shows.
    “ In such case are the counsel conducting it to a successful termination and seemingly satisfactory conclusion, entitled to be compensated out of the fund thus raised, or must they look only to the plaintiffs ? It is said in Snyder’s Appeal, by the learned judge delivering the opinion, that this law was not designed to pay the fees of mere litigation, so that a litigant should saddle his costs on others, and this is doubtless a correct statement of the law, at all events a binding one. Then was this litigation thus far and to this extent the litigation of the plaintiffs ? We think it was their right to demand and have partition as the event proved and in the form they adopted as was finally adjudged. Was not therefore the litigation that resulted, the litigation of the defendant, who needlessly objected to the form and resisted this right ? If this were not so, every co-tenant desiring to avoid his share of the burdens in a proceeding, has only to resist the proceeding, and- the stronger the resistance he offers the greater his chance to escape. In this view of the case and looking to the proper legitimate services of the distinguished counsel employed, the great value of the property involved, and their responsibility, the sworn testimony in this case as to the value of professional services, the auditor has come to the conclusion to recommend $2500, to be taxed in the case, as a proper fee for plaintiffs’ counsel.

      “ In coming to this conclusion, the auditor desires to state, he does not think the sum claimed, $6000, as being too much for all the services rendered; for all the testimony shows that to be a reasonable and proper charge, but because all of the services were not rendered in procuring the partition in this case, but part of them in a collateral matter for the exclusive benefit of plaintiffs for which they ought to pay the remaining $3500.”
    Plaintiffs and defendant both excepted, the exceptions being found substantially in the assignments of error below.
    The court, Livingston, P. J., without delivering an opinion, overruled the exceptions of both parties, adopted the amount fixed by the auditor, and directed the payment as found; Patterson, A. L. J., dissenting.
    Defendant appealed and assigned for error that the court erred, 1. In allowing to the plaintiffs, for the fees of their counsel, any sum greater than that which would be a reasonable compensation for the conduct of the proceedings in partition merely, and without regard to any services rendered by those counsel to the plaintiffs in the litigation which arose in this suit.
    2. In allowing to the plaintiffs, as counsel fees, any compensation for the services of their counsel rendered to them in or about the litigation.
    3. In adopting as the proper amount to be allowed to the plaintiffs’ for counsel fees, the sum of $2500, as recommended by the auditor.
    4. In confirming the auditor’s report and adopting its conclusions.
    Plaintiffs appealed and the errors assigned were:—
    1. The court erred in not taxing as a reasonable allowance to plaintiffs, for counsel fees, the entire sum which the auditor reported as being reasonable and proper for all the services rendered in the case, viz., the sum of $6000.
    2. In deciding that the only fees to be allowed to the plaintiffs for their counsel, were such as would be a reasonable compensation for the conduct of the proceedings in partition merely, and without regard to services rendered in the litigation caused by the defendant in resisting their right to partition.

      5. S. Reynolds and A. Slaymalcer (with whom was Wayne MaeVeagh), for appellant, Alfred Bates Grubb, defendant below. —
    The auditor, though declining to make the allowance demanded by the plaintiffs, has yet distinctly, and in express terms, allowed to them fees earned in litigation. Was he justified in so doing ? Snyder’s Appeal, 4 P. P. Smith 67, furnishes a conclusive answer: “ The design of the law was to place the parties upon an equality as to the expense of effecting partition among them. Owing to minority, coverture and other causes, the proceedings in partition may be indispensable.; and yet the party, no matter how small his interest, was compelled to pay attorney’s fees for conducting them to a conclusion as beneficial to others as to himself. The law was intended to remedy this injustice, but was not designed to pay the fees of mere litigation, so that a litigant should saddle the cost of his litigation on others. Hence, the law fixed the compensation as a reasonable one to be taxed by the court.” The controversy turns upon the construction of the Act of 27th April 1864, sect. 1. Statutes are to be construed with reference to the common law, for it is not to be presumed that the legislature intended to make any innovations upon the common law, further than the case absolutely required: 1 Kent’s Com. 464. Legislative enactments are to be expounded as near to the use and reason of the prior law as may be, when this can be done without violation of its obvious meaning: Cadbury v. Duval, 10 Barr 270 ; Borland v. Nichols, 2 Jones 42. At common law, as a rule, the expenses of litigation were never recoverable by the successful party, even though the demand or defence, by reason of which they were incurred, proved ultimately to be entirely groundless, and this seems now to be the invariable rule in Pennsylvania: Terry’s Ex’r v. Drabenstadt, 18 P. F. Smith 400; Good v. Mylin, 8 Barr 51; Stopp v. Smith, 21 P. F. Smith 285 ; Alexander v. Herr, 1 Jones 537 ; Porter v. English, 1 Phila. R. 85. In partition the plaintiff was not allowed any costs whatever until the Act of 11th April 1835: Stewart v. Baldwin, 1 Penna. R. 461; Shaw v. Irwin, 1 Casey 347. But, as in much the greater number of instances, this action of partition was used merely as a means (and where any of the parties were by reason of legal or other disabilities incapable of acting, the only means), for the accomplishment of that which the law always regards with favor, viz., the relief of persons holding as tenants in common, from the embarrassments incident to a divided' dominion, and the placing of each of them in the unfettered control of his own portion of the common property; and as the proceedings in such cases were beneficial to all alike, and the services of the counsel employed to conduct them, might be fairly considered as rendered to all equally, it was manifestly unjust that the expense of procuring those services should be borne exclusively by the one or more of the parties interested who had become actors in the case. As a remedy for this injustice the legislative provision in question was eminently proper, but to give to it any effect further than is requisite for that purpose would be to disregard the reason and spirit of that provision, and to run counter to the uniform tenor of the usage or practice of the common law, as well as the well-defined distinctive policy of the jurisprudence of Pennsylvania on the subject. The only professional services which by the utmost latitude of construction can be considered as rendered by those counsel to the defendant, was the management of the proceedings essential to the procurement of the partition without reference to the litigation. The conduct of those proceedings involved no special difficulty, and facilitated as it was by existing records of like proceedings with regard to the same property, required little other ability than that of an ordinary conveyancer, and would have been compensated amply by a sum of $200 or $300, and very liberally by one of

      N. M. North and James L. Reynolds (with whom was Clement B. Penrose), for appellants, Edward Burd Grubb et al., plaintiffs below. —
    Had the Act of 1864 intended to allow a mere fee for effecting the conveyance, nothing would have been easier than to have said so; and in that case the provision that it should be taxed by the court would have probably been unnecessary. But this is not what is said. “ The costs in all cases of partition,” recites the act. “All” is the word used, and the direction that the amount shall be taxed by the court is intended to prevent the extravagance of counsel or the liberality of clients from operating •to the disadvantage of others not parties to the retainer. The court is to determine what is just and reasonable under all the circumstances of the case. What right have we, in the teeth of such language as that used by the act, to introduce any exception or qualification such as is contended for by the defendant ? To do so would, in the words of a very distinguished jurist in a recent case, be “ simply a repeal of a statute written in the plainest words found in the English language,” and to assert “that the legislature did not see what was directly before their eyes and must have been seen,” viz., that some partitions were contested while others were not; and that they used the word “ all,” intending to include one class and to exclude the other. It did not need the elaborate citation of authorities to show that at common law counsel fees were never allowed as costs, or that prior to the Act of 1835, no costs at all were allowed in partition. If the common law had not been regarded as defective in both these respects, neither the latter act nor that now under consideration would have been passed. When the auditor found that $6000, was a reasonable and proper charge for the services rendered by the plaintiffs’ counsel, he erred in not reporting that sum to be taxed and paid by the parties in proportion to their several interests. The doctrine contended for by defendant is not supported by Snyder’s Appeal, 4 P. E. Smith 67. There an actual partition of the land had taken place, and six allotments out of seven accepted. Only one was ordered to be sold, and it was attempted in the settlement of the executor’s accounts of the proceeds of this sale to have plaintiffs’ counsel fees deducted. Upon two grounds, this court held, that this could not be done, either of which would have in itself been fatal to the claim: 1. That “ the cost of the partition, including the reasonable attorneys’ fees, belonged to the whole partition, and not to this sale merely.” And 2. That “ all the costs were to be taxed, including the reasonable attorney fee, and as they were to be paid by the parties in partition, the taxation must be according to the rules of court for taxing costs.”
   Mr. Justice Woodward

delivered the opinion of the court, October 16th 1876.

The original action between these parties was partition, which resulted in the allotment of the premises involved in it to the defendant. An application was then made for the allowance of the fees of the counsel for the plaintiffs for professional services in the action. An auditor was appointed on this application, and on the 81st of March 1875, he made a report fixing the sum for counsel fees to be taxed as costs in the case at $2500. On the 4th of September 1875, the report was confirmed by the Common Pleas. The plaintiffs appealed on the ground that the allowance was inadequate, the claim on their behalf having been $6000, and the defendant appealed on the ground that the allowance was excessive, claiming that “ the auditor should only have allowed such fee out of the estate as would compensate the attorneys for services rendered in the conduct of the proceedings had there been no contest.”

• The proceeding complained of was under the terms of the Act of the 27th of April 1864, in these words: “ The costs in all cases of partition in the Common Pleas or Orphans’ Court of this Commonwealth, with a reasonable allowance to the plaintiffs or petitioners of counsel fees, to be taxed by the court, or under its direction,' shall be paid by all the parties in proportion to their several interests.” There is no room for doubt as to what the legislature intended by this enactment. While in the ordinary course of practice, a partition was for the benefit of all the owners of the property divided, before the act the entire burden of the compensation of counsel for conducting the formal proceeding Avas throAvn upon the plaintiff in the Common Pleas or the petitioner in the Orphans’ Court. In every case professional aid was indispensable, and the purpose of the statute was ,to divide the cost of the employment of that aid amongst the parties equally benefited by the result of the proceedings." But it Avas indispensable aid only that was contemplated — such usual and accustomed service as the exigencies of each case should render necessary. The compensation of counsel for services in the trial of contested causes Avas not the end in vieAY. It would be a novel and anomalous feature in our legal system to have such compensation “taxed by the court.” It is a settled rule that a successful party cannot be alloAred even by a jury, in the extremest cases, for such expenses: Good v. Mylin, 8 Barr 51; Stopp v. Smith, 21 P. F. Smith 285. The act had relation to costs capable of calculation and ascertainment, and not to such fees as counsel and client are accustomed of themselves to adjust. In its very title, indeed, it was stated to be “relative to costs in cases of partition.” The services for the performance of which the statute was meant to provide Avere searches, formal motions, the preparation of papers and conveyancing — in a word, for such professional duties as would properly enter into the bill of costs of an attorney under the English practice. Counsel fees in the ordinary sense — such as are paid to a barrister for a trial in court — were not in contemplation. The distinction is as well settled as any other in the law, and is as well recognised and understood here as if the profession were divided into classes as it is in England. “ Fees of attorneys are considerations allowed them as a recompense for their labor1 Lil. Abr. 598. “Action on the case lies for an attorney for his fees against him that retained him in his cause; and attorneys are not to be dismissed by their clients till their fees are paid1 Lil. Ent. 142. But a counsel can maintain no action for his fees, which are given not as a salary or hire, but as a mere gratuity, which a barrister cannot demand without doing wrong to his reputation: Davis 23. It was said by Bailey, J., in Morris v. Hunt, 1 Chitty 551, that “ the reason why counsel can maintain no action for their fees is, because their compensation is not made to depend on the event of the cause, and for the purpose of promoting the honor and integrity of the bar, it is expected that all their fees should be paid when their briefs, are delivered.” It is true that the rule is different in Pennsylvania, and that suit for counsel fees may be here maintained. But the' authorities quoted exhibit common law distinctions that are well recognised, and serve aptly to illustrate the legislative intent in the passage of the Act of 1864.

In proceedings in partition a common benefit is secured to all the parties. The natural and obvious object of the statute was to enforce a contribution from each, proportioned to his share of the common service rendered to them all. Each of the parties would thus pay for the aid he had received. If counsel fees for conducting an expensive contest against him were to be allowed, he would be paying for hostility and attack, and not for aid. It would be straining the law to give it such a scope. ■ Legislative enactments are to be expounded as near to the use and reason of the prior law as may be, when ,this can be done without violation of its obvious meaning; for, say the cases, it is not to be presumed the legislature intended to make any innovation upon the common law further than the case absolutely required: Cadbury v. Duval, 10 Barr 265. Manifestly, this statute was not designed to shoulder upon defendants in partition the expenses incurred by a plaintiff in adversary litigation.

That this construction is accurate would seem clear from the language of the present Chief Justice in Snyder’s Appeal, 4 P. F. Smith 67. He said: “ The design of the law was to place parties upon an equality as to the expenses of effecting partition among them. Owing to minority, coverture and other causes, the proceeding in partition may be indispensable; and yet the party, no matter how small his interest, was compelled to pay attorney’s fees for conducting them to a conclusion as beneficial to others as to himself. The law was intended to remedy this injustice, but it was not designed to pay the fees of mere litigation, so that a litigant should saddle the cost of his litigation on others.”

Some embarrassment arises out of the mode in which this record has been brought up. It is doubtful whether the auditor’s report, which it is assumed sets forth the grounds on which the order of the court was made is legitimately the subject of review. Looking into the report, it is clear that the auditor allowed to the plaintiffs’ counsel fees in what he called “ the litigation of the defendant ”— that is, in the trial of the issues created by the interposition of a defence to the demand made by the plaintiffs for partition. Such an allowance is clearly beyond the scope of the statute and a departure from the construction given to it in Snyder’s Appeal. It is not necessary, however, to decide whether the opinion and reasons of the auditor can be reached or not. The record shows the allowance of counsel fees amounting to $2500. Apart from any grounds for the auditor’s decision disclosed by his report, the amount of the sum allowed affords adequate and conclusive proof in itself that the true meaning of the Act of 1864 was misapprehended. A case warranting the payment of so significant a sum for the services of counsel in conducting the mere formal proceedings in an action of partition, can hardly be conceived. At least clear affirmative evidence of facts to justify it would be required. There is no such evidence here.

Upon the argument objection was made on the part of the plaintiffs to the jurisdiction of this'court. That the subject-matter of the controversy is open to review in a proper form, is regarded as free from doubt. The Common Pleas made an order in the nature of a definitive judgment for the payment of the fees of the counsel for the plaintiffs. To the extent of his interest in the land, the defendant was a party affected, and so far as it was erroneous he was a party aggrieved by the entry of this order. A writ of error lies in all cases in which a court of record has given a final judgment, or made an award in the nature of a judgment: Commonwealth v. Judges of Common Pleas, 3 Binn. 273. In this state, practice having made costs so far a matter of record as to enable the court to judge whether the items in the bill are such as the law allows, a writ of error will lie upon an execution for them; and the Supreme Court will inquire into the legality of the charges, though they will not take cognisance of an exception which depends on matter of fact: Barnet v. Ihrie, 1 Rawle 44. A multitude of authorities, such as Horner v. Harrington, 6 Watts 331, McMasters v. Rupp, 10 Harris 298, and King v. Boyles, 7 Casey 424, prove that when a legal principle has been involved, a judgment for costs entered by the Common Pleas, whatever the particular form of the proceeding may have been, has been held to be properly the subject of review.

Whether an appeal is the proper form for this review is a graver question. The 6th section of the Act of the 11th of March 1809, does not give the option to a party of entering an appeal or taking out a writ of error, as the error below is on the record or dehors the record; but the law means that causes shall be removed according to the course of proceedings in the respective courts — an appeal from the Orphans’ and Register’s Court, and a writ of error to the Common Pleas and Quarter Sessions : McClemmons v. Graham, 3 Binn. 88; Commonwealth v. Haas, 7 P. F. Smith 443. An'appeal is the proper form of review of equitable remedies: Springer v. Springer, 7 Wright 518; Aurentz v. Porter, 12 Id. 335. Clear, therefore, as the rights of the defendant are believed to be, his appeal, as such, cannot be sustained. It is not the form in which the action of the Common Pleas can be reviewed, and it can only be dismissed.

But while the plaintiffs trusted simply to their appeal, a certiorari was issued on behalf of the defendant. This writ brings up the record. In a proper case, where the equity of the party who seeks relief is clearly made out, where no intervening adversary rights can be impaired, and where it affords the only means of averting an injustice, all the effect of a writ of error may be given to a certiorari. Thus, in Cooke v. Reinhart, 1 Rawle 317, while it was held that a writ of error, and not a certiorari, was the proper remedy for the correction of errors in the Common Pleas in a case brought into that court on a certiorari to remove the proceedings of two aldermen or justices of the peace under the Act of the 6th of April 1802, yet after the lapse of two terms, this court refused to quash a certiorari improvidently issued, and after argument reversed the judgment. Both parties appealed in this case, and its merits have been fully disclosed. Treating the certiorari as a writ of error, all embarrassment would be removed, for the report of the auditor would be brought directly into view. And this would be done if the justice of the case could be reached in no other way. A general dismissal now, to be followed by a fresh proceeding hereafter, would involve cost, inconvenience and delay that would be wasted in securing an end that may be at once attained. But such a course is not necessary, for the certiorari has brought up the record showing the nature of the application made on behalf of the plaintiffs, and the judgment in pursuance of it that was entered. As has been already stated, the amount of the judgment is evidence that all due and reasonable discretion was transcended by the Common Pleas, and it is a familiar principle that the possession of discretionary power does not justify its improvident and excessive use.

Both appeals are dismissed; and upon the certiorari issued on behalf of the defendant, it is ordered and • adjudged that the judgment of the Court of Common Pleas of the 4th of September 1875, fixing the counsel fees of plaintiffs to be taxed as costs at $2500, be reversed at the costs of the plaintiffs, and that a procedendo be awarded.


text:
    The Farmers’ Mutual Fire Insurance Company, Garnishee of Barr, versus Bair et al. Same versus Groff, to use of Bair et al.

    Barr made a written application, on May 3d 1870, to the Farmers’ Mutual Fire Insurance Company, for insurance against fire for three years from that date, and a policy was duly made out in accordance therewith, bearing date May 3d 1870. The receipt given to Barr for the amount of the premium was dated May 31st 1870, and there was evidence tending to show that the insurance was to be for three years from May 31st 1870. A part of the property insured was destroyed by fire on May 19th 1873. Judgment creditors of Barr issued an attachment in execution and summoned the insurance company as garnishees. At the trial, evidence was given in behalf of the garnishees tending to prove that the date of this receipt had been altered from May 3d 1870 to May 31st 1870. The court charged that there was no evidence to show such alteration, and took the .consideration of that question from the jury: Held to be error.
    May 2d 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, and Woodward, JJ. Williams, J., absent.
    Error to the Common Pleas of Lancaster county: May Term 1876, Nos. 39 and 40.
    Attachments in execution issued in aid of two judgments, against Barr, one obtained by Bair and Sbenk, and the other by Groff, to the use of Bair and Shenk.
    The Farmers’ Mutual Fire Insurance Company was summoned as garnishee. Pleas, nulla bona.

    The facts of the case appear sufficiently in the opinion of the court. Verdict and judgment for the plaintiffs in both cases. The garnishee took this writ of error. The garnishee’s fourth point and the answer to it, which formed the ninth assignment of error, are therein given.

      T. 3. Franklin and II. M. North, for plaintiff in error.

      O. J. Dickey, S. 3. Reynolds, R. W. Shenk and W. Leaman, for defendants in error.
   Mr. Justice Woodward

delivered the opinion of the court, October 9th 1876.

In the fourth point of the defendants below, the court were asked to charge that “ if the jury believe from the evidence that the receipt given by Barr to Hendrickson was altered from May 3d to May 31st 1870, the plaintiff cannot recover.” The answer was: There is no evidence in this case of any alteration of the dates of the receipt. Barr swears the dates therein are the same now as when he received it from Hendrickson, the agent, and Hendrickson does not swear that they have been changed or altered. The jury need not consider the question raised by this point.” This question was the pivot on which this whole controversy turned. The application for the increased insurance was made by Barr on the 3d of May, unquestionably. If it was agreed between Hendrickson and himself that the policy was to protect the property from the 31st of May, and if, in accordance with that agreement, the receipt was post-dated, the plaintiffs below, as attaching creditors of Barr, had the right to ask that the policy should be reformed by substituting the date which was really fixed for the commencement of the contract, in lieu of that which was adopted by the company in consequence of the agent’s mistake. The act of the agent in effecting the insurance having been ratified by the execution of the policy, there is nothing in the general facts on the record to indicate that the discrepancy of twenty-eight days between the date agreed on and the date mistakenly adopted, could have had any essential bearing on the question of the good faith of the contracting parties, or on the obligation of the contract itself.

As the case stands, the material inquiry is whether there was any evidence of the alleged alteration of the receipt which should have been submitted to the jury. On the 31st of May 1867, an insurance on a dwelling-house, kitchen, smoke-house and certain household furniture, amounting to $4000, was procured by Barr from the defendants, through the instrumentality of John H. Zeller, at that time their agent at Mount Joy. In the autumn of 1869, George R. Hendrickson, who had been appointed agent in Zeller’s place, made a survey with a view to the insurance of other property belonging to Barr. On the 3d of May 1870, an application was made for a policy for $8800, embracing the $4000 covered by the policy of 1867, and $4800 on the other property. The insurance was specified to be “ for the term of three years from the 3d of May, 1870, at noon,” and the application was dated “May 3d 1870.” The policy, which was dated on the sixth day of May 1870, stipulated for the payment of damages.by fire to the property insured occurring between the third day of May 1870, and the third day of May 1873. The date of the expiration of the risk, “3d May 1873,” was legibly endorsed upon the policy. A fire occurred on the 19th of May 1873, resulting in the loss of property not covered by the insurance of 1867, but included in the risk taken in 1870.

On the trial, the plaintiffs produced the receipt of Hendrickson purporting to have been given “May 31st 1870.” It was alleged on behalf of the defendants that this receipt had originally been dated “ May 3d 1870,” and had been altered by the addition of the figure and letters “ 1st.” It was apparent that a vacant space had been left between the figure or figures expressing the day of the month and the figures which indicated the year, hnd that this space had been left without a connecting scroll and entirely blank. Barr testified that when he took the receipt it was “ with the understanding that the insurance was to take effect from May 31st, the expiration of tbe old policy,” and that the dates originally inscribed remained unaltered. He also testified that he had not observed before the fire the discrepancy between the receipt and the policy. On the part of the defendants, Hendrickson, the agent, was called as a witness. He stated that the receipt of the 31st of May 1870, was in his handwriting, with the possible exception (he was not able to speak positively) of the figure “1” in both places (at the foot of the paper and in the cancellation of the stamp) where it occurred in the dates. He said that the letters “ st ” did not look to him like his writing. On cross-examination he added that “there was nothing on the stamp to indicate it was not in his hand except his reasoning.” He said also that when the new insurance was effected, he made an allowance to Barr of 55 cents for the premium on the cancelled policy of 1867, for the period between the 3d and the 31st of May 1870.

In view of these general facts, how can it be said that there was no evidence to affect the integrity of the date of the receipt in controversy ? According to Barr, the understanding was distinct that the risk was to begin on the 31st of May. According to Hendrickson, the understanding was that it was to begin on the 3d of May, and in pursuance of that understanding, he swore that he refunded the premium on the first policy for the twenty-eight days it had yet to run. Then the terms and date of the application, and the stipulations of the policy were explicit and unmistakable. While the evidence of Hendrickson was vague, it still raised a question whether the receipt produced in cpurt was in the precise form in which it was originally executed. The fire occurred more than three years after the insurance was effected, and no objection to the terms of the policy had been made in the interval. It is true Barr swore he did not discover the discrepancy, and it appears that the policy was assigned to S. H. Reynolds, a lien-creditor, on the 11th of September 1871, and was probably therefore not in the hands of Barr from that time till the accident happened. Still the fact remains that the policy was received and retained without objection.

All these were facts bearing directly on the point contested. But aside from these, there were surrounding circumstances which, as tending in some degree, to illustrate the issue, should have been submitted to the consideration of the jury. The property destroyed by the fire was not included in the policy of 1867. Evidence was given by the plaintiffs to prove that this property was protected by policies of other companies., which were dropped by Barr when he obtained the insurance from the defendants in May 1870. The policies so dropped were not shown, and no proof was made in regard to the dates of their expiration. Barr simply testified: “ I had my other buildings insured in other companies. I dropped them,- and took all in this company.” As the record stands, the theory of the defendants presents the peculiar case of an insurance to the amount of $4800 to take effect twenty-eight days after the date of the application, while nothing is offered to show that the property was not, during that interval, left wholly unprotected.

It is possible that a thorough investigation by a jury may enable them to account for the confusion in these instruments on the ground of accident, and not on the ground of an alteration of dates. In its general terms the receipt of 1870, is almost an exact duplicate of that given by Zeller on the 31st of May 1867. In the application signed by Barr, the date was stated as “May 3d 1870.” It was for the jury to say how and why the change was made from the numeral adj ective expressed in the word and figure “ May 3d ” in the application, to the ordinal number expressed by the word, figures and letters “ May 31st ” in the receipt. While the application and policy could be reformed by proof that the receipt showed the true terms of the contract, certainly the receipt could also be reformed by proof that the true terms were contained in the contemporaneous papers. One instrument would not necessarily control the other. The point was one which it was not the province of the court to decide, for it rested upon extrinsic evidence. It may be that in copying the receipt of 1867, the day of the month on which that had been given was copied also by Hendrickson through a natural inadvertence. This is mere speculation of course, for such a question could only have been passed upon by the jury, and to them, in connection with the general facts developed on the trial, it ought to have been referred. The other questions in the cause were accurately ruled, but there was error in the answer given to the fourth point of the defendants, and the ninth assignment of error therefore is sustained.

Judgments reversed, and venire facias de novo in each case awarded.