author: by Sharswood, J. Williams, J.

text:
    Lewis & Nelson’s Appeal.
    1. An Act of Assembly changing the venue of a suit commenced and proceeded in, is constitutional.
    2. A provision may be implied in a constitution, but the implication must be very plain and necessary.
    3. The legislature possess all legislative power except such as is prohibited by express words or necessary implication.
    4. The estoppel of a judgment extends only to the question directly involved in the issue, not to any incidental or collateral matter although it may have arisen and been passed upon.
    5. Corbett contracted with Lewis to manufacture from Lewis’s timber land and deliver lumber to him at a price -named; when' a sufficient quantity should be delivered to pay the cost of the land, machinery, expenses, &c., Lewis to convey one-third of the. land to Corbett; he refused to deliver lumber on the ground that he had delivered enough to fill the contract; Lewis brought replevin and recovered, Corbett having given a property bond.’ Held,ihat the verdict was not conclusive on the accounts of the parties, and that the amount of the verdict was a credit to Corbett on- the contract.
    6. The rule that he who comes into equity must come with clean hands, refers to wilful misconduct. . ’
    7. A tenant in common who has contracted to sell the common property with consent of his fellow, is not bound to ácbount for more than he. has actually received.
    8. In an action between co-tenants, all disbursements for the recovery, defence, or protection of the common property should be allowed;' but not law expenses of adverse suits between the tenants themselves.
    November 21st 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ. '
    Appeal from the Court Common Pleas of Jefferson county: In equity, No. 181, to October and November Term 1870.
    On the 8th of January 18.67, W. W. Corbit filed a bill against Samuel Lewis and William Nelson, in the District Court of Allegheny county.
    The bill charged that the defendants having a.title, in the manner stated in the bill, to timber land in Jefferson county, it was agreed between them and the plaintiff by. two different .articles, dated May 28th 1863, that the defendants should furnish the means to build saw-mills and other necessary buildings to manufacture boards and shingles; that the plaintiff should superintend their erection and thg manufacturing of the boards, and shingles, and running them to market, and when the plaintiff should manufacture and deliver at Pittsburg sufficient lumber, boards at $8 per thousand feet and shingles at $1.75 per thousand, to pay the advances for .the lands, buildings, &c., the defendants would'convey to him. an' undivided third of the lands, buildings, &c., the agreement to expire in five years from its'date. The bill-further averred that the plaintiff completed the buildings in October 1863, and that up to the 1st of October-1864, when he ceased'manufacturing lumber on the mills, he had delivered to the defendants about 468,172 feet of boards. The bill further averred that on the 1st of October, the defendants entered into a. parol agreement with Hill & Jackson, to which the plaintiff assented, for the sale of the land and mills for $18,000. Hill & Jackson took possession, and after continuing there about a month, the contract was rescinded, the defendants alleging that they were not able to make title. Hill & Jackson surrendered possession to the defendants, who held it 'to the exclusion of the plaintiff, and ■ contracted with Newton Taylor for manufacturing and delivering lumber, without, regard to the plaintiff’s rights; Whilst the plaintiff was in possession, being unable, for causes stated, to obtain timber from the land, he purchased from his own means and manufactured enough to make 200,000 feet of boards. In the spring of 1865, the plaintiff brought to points near Pittsburg 593,685 feet of boards, including the 200,000 feet of his own. On the 8th of April, he proposed to Lewis, one of the defendants, to deliver the whole amount of the-lumber, if the defendants would pay the proportionate price of the timber, for which he had himself paid; this was refused; and the defendants issued a replevin out of the District Court of Allegheny county to take the whole lumber, including his own 200,000 feet; he gave a claim-property bond, and retained the lumber, but a judgment for $17,514.30, a sum greater .than all the lumber in his possession, was recovered against- him on the 10th of May 1866, .which he believed the defendants intended to collect from. him. The bill further averred that the lands, mills, &c., cost $12,292,38 ; that the lumber delivered before the replevin issued was worth $11,703, from which, after deducting $3745, the amount to be received by the plaintiff for certain expenses, there would be $7958 to be applied to the cost- of the lands and mills, and there would remain $4334, on payment of which the plaintiff would be entitled to a deed for one-third of the land ’ and mills "and the lumber manufactured upon them. The bill further averred that á quantity of lumber, to an amount unknown to the plaintiff, had been manufactured from the land whilst Hill & Jackson held possession, and whilst Taylor had it, which the plaintiff believed, after deducting the expenses of manufacturing, &c., would be more than sufficient to pay the' cost of lands and mill, and leave a surplus to be divided, independently of the amount of the verdict in the replevin. The bill charged that thé defendants had recently sold the land and mill to Taylor for $30,000. He further charged that he was entitled to a deed for one-third of the land, &c., and to ah account for the lumber and moneys received by.plaintiffs both as proceeds of the lumber and the sale of the land, &e., and that he ought not to be called on to pay the the verdict in the replevin, until the defendants have come to an account with him. . '
    The prayers were for an account, that the defendants be enjoined from collecting the verdict until they have accounted, and for general relief.
    On the 16th of February 1867, a preliminary injunction was refused.
    On the 10th of April 1867, an Act of Assembly was passed transferring this case to the Court of Common Pleas of Jefferson county to be tried; &c., with same effect as if continued in the District Court of Allegheny, and directing the record, &c., to be certified to Jefferson county.
    On the 80th of April the defendants-filed their answer. They admitted the agreements as set out in. the bill. They averred that the whole amount realized from the. lumber manufactured by the plaintiff was $7286.04; that-the plaintiff notified them that he would not perform the contract; that they had to pay Hill & Jackson for their expenses and outlay, $100 for disappointment, and $400 for logs which plaintiff represented to be at the mill, but were not; that the plaintiff did not purchase timber with his own money, but if so, no recovery could be had, as it had been determined by the verdict, in replevin that-he had forfeited his right to the lumber; they admitted the bringing of the lumber to points hear Pittsburg, the suit in replevin and the judgment therein, and the. cost of land and mill as stated in the bill; they denied the other allegations as to the'state of the accounts; they averred that the record in the replevin showed that in addition to $12,292.88, the cost of the land, &c:, the defendants had advanced -to the plaintiff above $19,000; that the defendants had advanced $32,000, and had received but $7286.04, leaving them out $24,714.02, in .addition to costs, expenses, attorney’s fees, &c., caused by the acts'of the plaintiff; that the plaintiff having cancelled the agreement, aind done other acts (specified). prejudicial to- the plaintiff, was not entitled to inquire into the sale to Taylor; but they said that thfey agreed to convey to Taylor the land and mills,, upon his delivery to them 1,300,000 feet of lumber, viz., 300,000 feet .in the spring of 1867,' 300,000 feet in the spring of 1868, 400,000 feet in the spring of 1869, and-300,000 feet in the spring of 1870; they averred that the defendant’s conduct in endeavoring to appropriate to his own use the 598,684 feet of lumber, deprived him of the right to an account, and that the verdict in • the replevin was a bar to the relief sought; they admitted that the verdict was .greater than the'value of the lumber, but averred that the excess was for exemplary damages for the fraud he committed on the plaintiffs.
    On the 1st of May 1867, the plaintiff filed the -Act of Assembly, and moved that the record, &c.; of the cause be transferred to Jefferson county. On the 20th of July the court ordered the transfer of the case. The defendants appealed from this order, to the Supreme Court. The appeal was there quashed and the record remitted. The case was then transferred to the Court of Common Pleas of Jefferson county.
    On the 7th of December .1867 a replication was filed, and an examiner was appointed. On the report' of the examiner the court, November 30th 1869, appointed James Boggs, Esq., master.
    ■ The master found the allegations as to the agreements between the plaintiff and defendants substantially as stated in the bill, with the addition that the defendants were to have the entire, control of the sale of the lumber until they should have received sufficient to pay all the advances. He further found that up to the fall of 1864 Corbett had manufactured about 1,000,000 feet of boards,- part of which he had delivered to Lewis & Nelson during 1864, but about 585,000 feet of which were not run until the spring of 1865.
    About the 1st of November 1864, Lewis & Nelson, with consent of Corbett, negotiated a sale of the whole mill property to Hill & Jackson at th.e price of $18,000; and Hill & Jackson took possession from Corbett, .and entered into contract' with Alexander Scribner for the manufacture of lumber thereon. Hill & Jackson, at the time they went upon and examined the said premises,' represented to Corbett that they had bought the property from Lewis & Nelson, and stated the price at which they had bought, whereupon Corbett passed over to them the possession. They retained the possession of the property about a month, when they surrendered it to Lewis & Nelson,. on account of some alleged difficulty in procuring the title for the lands by Lewis & Nelson. The contract with Hill & Jackson was in parol, they paid no money upon it, and with consent of Lewis & N.elson, it was rescinded. Thus far, for aught that appears from the evidence, all their business operations had run smoothly. Lewis & Nelson, at the rescission- of the contract with Hill & Jackson, took charge of the mill property, and agreed to carry out the contract between Hill & Jacksoir and A. Scribner, he having sub-let the mill to Andrew Butler, who manufactured 100,000 feet of lumber that was run and delivered in Pittsburg to Lewis & Nelson.
    About the 6th or 7th of April' 1865, Corbett arrived in the neighborhood- of Pittsburg with the balance of the lumber manufactured by him the previous year (585,000 feet), when, from some dispute or misunderstanding between Lewis & Nelson and himself, the lumber was not delivered; whereupon Lewis & Nelson took out a.replevin against Corbett in the District Court'of Allegheny county for its recovery. Corbett executed a claim property bond, retained the lumber, and went to trial under the plea of property ; the case was determined and a verdict rendered against him on, the 9th of November 1865, for $17,514.48.
    On the trial of that case the contracts and transactions between the parties under them were all given in evidence. Lewis •& Nelson gave in evidence the aforesaid contracts between themselves and Corbett, of the 28th of May 1863, the several amounts of money, goods, &c., advanced under those contracts, together with evidence of identity of the lumber replevied as having been made upon the said mill.
    Corbett, under his plea of property, exhibited and gave in evidence the amounts of money paid out by him about the erection of the mill and other buildings, the purchase of land, and the general cost and expense of the establishment; the quantity of lumber delivered by him to Lewis & Nelson under the contract, and the agreement of sale of the property to Hill & Jackson, &c., and from all these, together with other facts, contended that the advances of Lewis & Nelson had been fully paid and discharged; and that by reason thereof he was entitled .to a one-third joint interest of the mill property, and to the exclusive possession of' the lumber for which the suit was brought under the stipulations of the said contract, and that therefore the replevin for the lumber ought not to be sustained.
    From the original verdict of the jury in that cq,se, given in evidence in this case on part of defence, it appears that the jury found for the plaintiffs for the 585,000 feet of lumber at $27 per thousand, making $15,795, and -interest for seven months, $552.82, and damages, $1116.66, making whole amount of the verdict $17,514.48, which amount, together with interest thereon and costs, was subsequently collected from Corbett in full.
    ’ Lewis & Nelson still retained the possession, or at least the control of the mill property, and gave a contract to Newton Taylor to stock, saw and deliver the lumber to them, for the consideration of $12.50 per thousand, and under'that' contract Taylor delivered to them in 1866, 550,000 feet. Subsequently, on the 26th December 1855, they sold the fee-simple of the property to Newton Taylor for the consideration of 1,300,000 feet of boards, to be delivered to them in Pittsburg as set out in the answer. This would be a conversion, and equity .would charge the defendants with the actual money value of the personalty thus substituted, at the time receivable under the contract.
    The plaintiff claims that the defendant should account.in this case for the Pittsburg market value of all the lumber received by them from him, manufactured on this mill, inclusive of the 585,000 feet recovered against him in the'action of replevin ; as also the same market value of all lumber received by them from the said mill from the date of the surrender of possession thereof by him to Hill & Jackson, until the sale of the property to Newton Taylor, less cost of manufacturing and delivery; and also the like market value of all lumber delivered and deliverable by Taylor under his said contract of purchase. That upon an equitable adjustment of all the transactions between the parties, under their contracts, plaintiff contends that he is entitled to a decree in his favor, against defendants for a large amount.
    To plaintiff’s claim in this case, the defendants have taken two grounds of defence, either of which, it is contended, is fatal to his bill. ■
    ■ 1. That the judgment in the action of replevin is a conclusive ^bar to, and estops the plaintiff’s recovery in this case.
    2. “ That on general equitable principles the plaintiff cannot sustain this bill,” and
    3. That even if plaintiff can sustain his bill the heavy advances made by them far overbalance any legal, or equitable demands to which the plaintiff could reasonably be entitled under the contracts, and would leave a large balance in their favor. * * '*
    The master as to the 1st point after discussing the law elaborrately and citing numerous authorities, said:—

      “ It was doubtless necessary for the jury to take and state some kind of an account between the -parties in the replevin suit, in order to ascertain whether or not the advances were paid by delivery of lumber under the contract or otherwise. And that was the only fact they could find as to that point of the case, and that was collateral to the real issue under the pleadings. It would have been all the same if they had found one dollar of the advances unsatisfied, or one thousand, or five thousand. The one would have been as effectual as the other in settling, the right of property in the lumber, and consequently the action. Again, if- the jury in that case had found from a statement of account between the parties, that the advances had been paid and overpaid, the only thing they could have found, would have been for the defendant generally, and in no way could they have found a money judgment so as to settle the accounts between the parties..
    “ It seems to me,-after a very full and careful examination of the authorities, that in order to make a former judgment a bar, it should comprehend the cause of action in the case in which it is offered — should cover the whole ground of controversy between .parties in the latter case. •
    “ The judgment in the replevin case is conclusive between the parties, for its own proper purpose and- object. Under the pleadings, it decided that 585,000 feet of lumber replevied, rightfully belonged to Lewis & Nelson under the contract. It could not give, them the lumber itself, but it gave them the market price, the same that they would have received if the lumber had been delivered under the contract; $27.00 per thousand for 585,000, making $15,795.00
    With seven months interest, • . . . . 559.82
    And. damages for detention, ..... 1,166.66
    Making in all the amount of the verdict, ■ . . 17,514.48 For which judgment was entered against Corbett and subsequently paid by him.
    “ The judgment in replevin put Lewis & Nelson and Corbett in the same condition they would have been in if Corbett had delivered the lumber under the contract: or if he had delivered the lumber and prevented the replevin.
    “ The judgment in the replevin settled nothing between the parties, but the right of property and possession of the lumber for which' the suit was brought, under the contract; that was the gist of the action; upon that, under the pleadings, the judgment was entered; and so far and no farther is it conclusive between these parties. In that view, the merits of. this case are entirely outside of and unaffected by the judgment in the replevin, and therefore the plaintiff’s bill can be sustained.
    “We come now to defendant’s second position: ‘That on general equitable principles the plaintiff cannot sustain his bill.’
    “ It is argued on part of defence, that Corbett cannot claim a specific performance of his contract with Lewis & Nelsonj because he violated that contract by refusal to deliver the lumber, and because he failed to execute his contract by manufacturing and delivering lumber under it until'the advances were paid up. But here it becomes necessary for us to turn our attention to the facts, in order to ascertain the standing of the parties then to that contract.
    “About the 6th of April, 1865, Corbett arrived in Pittsburg with the lumber at that time replevied.
    “ In the fall of 1864, Lewis & Nelson and Corbett mutually sold the mill property to Hill & Jackson, and Corbett delivered over 'to them the possession. Hill & Jackson entered into a contract with Scribner to Stock, the mill and manufacture lumber; and Scribner sub-let the mill to Butler, who proceeded and manufactured, the same fall, 100,000 feet of lumber; all done under and in pursuance of the sale to Hill & Jackson and their agreement with Scribner; and that lumber, the next spring, delivered to Lewis & Nelson.
    “ What effect had all those proceedings upon the Lewis, Nelson and Corbett contract ?
    “ I apprehend, that the mutual agreement of the parties to sell to Hill & Jackson, was a mutual waiver of any further execution of the contract, at least so far as the manufacturing and delivery of lumber in satisfaction of the advances, and the execution of a deed by Lewis & Nelson to Corbett for the undivided one-third of the land, were concerned. And in the absence of any stipulation on that subject, I apprehend, that equity would have applied., the consideration money of .the Hill & Jackson sale, first in extinguishment of any balance of advances that might have been unsatisfied; and secondly, would have divided the balance between Lewis & Nelson and Corbett according to their respective rights under the contract.
    “ But the contract o.f sale to Hill & Jackson was rescinded, or not executed, and no money paid on it. At the rescission of that contract, Lewis & Nelson agreed to carry put 'and perform the contract between Hill & Jackson and Scribner. And under that contract Butler manufactured and had delivered to Lewis & Nelson, 100.000 feet of lumber. Corbett never had the possession after delivery of it to Hill & Jackson, but there is some evidence that he was consulted as to the rescission of the Hill & Jackson contract. * * *

      “ Newton Taylor took possession of the property from Butler, under a contract with Lewis & Nelson to. manufacture and deliver the lumber-to them at $12.50 per thousand. Under that contract Newton Taylor delivered, in the spring and summer of 1866, 600.000 feet, and on the 26th of December 1865, had purchased the fee simple of the property from Lewis & Nelson, for the consideration above stated. ■ *
    “ Certainly the rescission of the Hill & Jackson contract, would not revive the original contract between Lewis, Nelson and Corbett, in so far as its execution had been mutually waived by the parties. How then did the parties stand with reference to the mill property ? And here it is contended on part of the defence, that Corbett had no rights, except upon the performance of his individual covenants. But even if that were conceded, the argument would not apply here, if, after a partial performance, further performance was waived. Besides that, in the replevin -case between these parties, the Supreme Court say, “ beyond all doubt, Corbett acquired an equitable estate in the lands, &c., to be perfected by a conveyance of the legal title to an undivided third of the premises at such time as he should have manufactured, in the manner provided, and delivered to Lewis & Nelson, boards and shingles sufficient to pay the cost of saw-mills and manufacturing.” Any other view would be inequitable. Eor it is not any where alleged in the case, that Corbett did not fully perform his covenants down to the waiver of further performance, by the sale to Hill & Jackson. Then unquestionably upon the rescission of the contract with Hill & Jackson, the property would revert to the parties; the legal title to Lewis & Nelson and the equitable title to the undivided third to Corbett.
    And at this juncture of their affairs, Lewis & Nelson having assumed the entire control of the premises, entered into contracts for the manufacture and delivery of lumber; and finally sold the fee simple of the premises, and converted and appropriated the proceeds arising therefrom, without consulting Corbett upon the subject; I apprehend that equity would apply the net funds so realized, so as to do no injustice between the parties: First to the extinguishment of any balance of advances remaining unpaid, and next to Lewis, Nelson and Corbett themselves, in equal thirds, upon the basis of the contract.
    “ However it is claimed on part of defence, that the non-delivery of the 585,000 feet of lumber by Corbett, should prevent his recovery in this'case. But by the determination of the replevin case, Lewis & Nelson have received a complete substitute in lieu of the lumber, by a judgment for its -market value with interest, and also damages for the wrong of the detention under the contract. And so far I view that judgment as conclusive between the parties.
    “ From the view taken of this case thus far, it is unnecessary to consider the prayer in the bill for a decree for a deed.” * * The master stated an account to April 9th 1870, the date of this report.
    The account comprised numerous items making the results-hereafter stated, viz.:
    Received by plaintiff for erection of mill, manufacture of lumber, &.C., per exhibit “ S,” in master’s report, being a statement rendered to plaintiff by defendants, ......., . $13,826.48
    Paid by plaintiff on account of mill property . . 7,913.49 ■
    Due from plaintiff on this account . . 5,912.94
    Paid by defendants on account of real estate . 8,-788.63-

      “ by plaintiff as above ..... 7,913.49
    Whole costs of lands, mills, &c. 16,702.12
    Due by defendants to plaintiff for manufacturing and delivering lumber prior to replevin 2.651.54
    do. do. do. lumber the subject of the replevin . . . ... 4,680.00
    7.331.54
    by plaintiff as above 5,912.94
    1,418.60
    Five years’ interest ...... 425.55
    Amount due plaintiff .... 1,844.15
    Due by defendants to joint estate for the boards delivered by plaintiff, less cost of manufacturing, delivery, &c.,....... 4,624.46
    Allowed in replevin ($15,795} less do. . 11,115.00
    Butler, less do. 1,050.00
    16,799.46
    Whole costs of land . . . . 16,702.13

      Due by defendants to joint estate .... $97.38
    Interest, five years,......29.19
    Lumber from N. Taylor and 3J years’ interest . 6,655.00
    Lumber delivered and deliverable under contract of sale with N. Taylor, with interest from the dates stipulated for delivering..... 25,429.50
    32,211.02
    Plaintiff’s one-third...... 10,737.00
    Due plaintiff from defendant as above . . . 1,844.15
    Due to plaintiff from defendants April 9th 1870 . $12,581.15
    On the question of the account, the defendants claimed that they should be allowed two sums, amounting together to $2800 and endorsed by receipt marked “E. & G.” They alleged that these sums had been paid since rendering the account in exhibit “ S.” Eor reasons given in his report, the master found that they were included in exhibit “ S.” and disallowed them.
    There was evidence before the master of a contract between the parties and Thomas Hill for a sale of lumber, in which there was a failure to deliver: upon a compromise as to damages for breach of a contract, Lewis (defendant) paid Hill $250 for which the master did not allow him credit in the account: — There was evidence also that the defendants had paid Hill & Jackson $1200 for manufacturing lumber and $2000 counsel fees in the replevin suit, which sums were not allowed by the master.
    He recommended that a decree be made in favor of the plaintiff against the defendants for $12,581.15.
    The defendants filed the following exceptions with the master, which were overruled:—
    1. Reporting that the action of replevin did not bar and estop the plaintiff from recovering in this case.
    2. Reporting that on general equitable principles the plaintiff was not barred and estopped from recovering in this case.
    3. Reporting that the plaintiff’s bill could be sustained.
    4. Reporting a decree of $12,581.15 in favor of the plaintiff and against the defendants.
    5. Reporting in favor of W. W. Corbett and against Lewis & Nelson the sum $4680 for the manufacturing and running 585.000 feet of boards, for which the replevin was instituted. If any charge can be made for the boards replevied, it will have to be less 200,000 feet, which Corbett claimed as his own property in the said action of replevin.
    6. Reporting Lewis & Nelson debtor to the mill $11,115, the amount allowed by the jury in the' said replevin case for the 585.000 feet of boards in controversy in that case, less the amount of costs of manufacturing. If they are debtor to any amount of the said sum, it must be less the value of the 200,000 feet claimed by Corbett in said action as his individual property.
    7. Reporting Lewis & Nelson debtor, to $7200, being the value of the 400,000 feet of boards to be delivered by Newton Taylor in the spring of 1869, under his contract with Lewis & Nelson; while the evidence of Newton Taylor is that he delivered only 200,000 feet of the payment of 1869, and that the balance of said payment was to be in money, and that he had not paid the money.
    8. Reporting Lewis & Nelson debtor to $5400, being the value of the 300,000 feet of boards to be delivered by Newton Taylor, under his contract in the spring of 1870. There is no evidence that any part or portion of said boards have been delivered.
    9. Reporting in favor of a credit to Corbett of $900, being for logs, hauling the same, &c., the logs being the same that Corbett claimed the 200,000 feet of boards were made out of, that were in controversy in the said replevin suit.
    10. Not reporting credits to Lewis & Nelson of $250, being the amount of damages paid Thomas Hill for the non-delivery to him of lumber; $1200, the amount paid to Jackson & Hill; $2000, the amount paid attorneys for trying replevin case. In not allowing credit of the two receipts, as per exhibits “F” and G-.”
    11. Not reporting that the bill should be dismissed at costs of the plaintiff.
    They also moved to dismiss the bill, the Act of Assembly removing the case' being unconstitutional, and the Court of -Common Pleas of Jefferson county having therefore no jurisdiction.
    The court (Campbell, P. J.), September 16th 1870, overruled the motion to dismiss the bill, confirmed the report of the master, and decreed that the defendants forthwith pay to the plaintiff $12,581.18 with interest from April 9th 1870, and costs.
    The defendants appealed to the Supreme Court, and assigned for error,—
    1. Refusing the defendants’ motion to dismiss the bill for want of jurisdiction, and because the Act of 10th of April 1867, changing the venue to Jefferson county, was repugnant to the constitution, and therefore null and void.
    2. In entering a final decree for the plaintiff.
    3. In overruling the following exceptions to the master’s report, to wit (stating the exceptions in detail).

      J. Barton (with whom were Gordon & Brothers), for appellants.
    The establishment - of a Court of Common Pleas for each county is that citizens may not be called to answer in distant parts of the state, and the removal in this case is as if the legislature had given the court of Jefferson county authority to call the defendants to answer there.

      January 16th 1871,
    As to the estoppel by the judgment in replevin: Bickford v. Cooper, 5 Wright 142; Cist v. Zeigler, 16 S. & R. 282; Simpson v. Hart, 1 Johns. C. R. 39; White v. Reynolds, 3 Penna. R. 96: Bower v. Tallman, 5 W. & S. 556; Marsh v. Pier, 4 Rawle 284.
    The plaintiff did not comply with his covenants, and therefore the bill must fail: Brightly’s Eq. 192; Miller v. Henlan, 1 P. F. Smith 268; Greenlee v. Greenlee, 10 Harris 285; Rittenhouse v. Levering, 6 W. & S. 190.
    G. A. Jenks and W. L. Corbett, for appellee.
    As to the change of venue they cited Commonwealth v. Hartman, 5 Harris 119; Commonwealth v. Maxwell, 3 Casey 444; Philadelphia v. Field, 8 P. F. Smith 320; Sharpless v. Philadelphia, 9 Harris 147; Commonwealth v. Martin, 2 Barr 244; Duff’s Appeal, 6 P. F. Smith 436; Commonwealth v. Green, 8 Id. 226. As to the estoppel they cited Jackson v. Wood, 3 Wend. 35; Wood v. Jackson, 8 Id. 42; Lawrence v. Hunt, 10 Id. 85; Hibshman v. Dulleban, 4 Watts 190; Lentz v. Wallace, 5 Harris 412; Carmony v Hoober, 5 Barr 305; Tams v. Lewis, 6 Wright 402; Converse v. Colton, 13 Id. 351; 1 Starkie on Ev. 264, 265; Campbell v. Consalus, 25 N. Y. R. (11 Smith) 613; Campbell v. Butts, 3 N. Y. R. (3 Comstock) 173; Manny v. Harris, 2 Johns. 24; Young v. Runnell, 2 Hill 481; Benedick v. Post, 12 Barb. 168; Doty v. Brown, 4 N. Y. R. (4 Comstock) 71; Standish v. Parker, 2 Pick. 20.
    Time was not of the essence of the contract here, and there was no gross negligence by the plaintiff, nor any change affecting ' the rights of the parties; the plaintiff may therefore have specific execution: Brightly’s Eq. J. 189; Tiernan v. Roland, 3 Harris 429.
   The opinion of the court was delivered,

by Sharswood, J.

The first point made is on the constitutionality of the Act of Assembly of April 10th 1867, Pamph. L. 1067, entitled “ An Act to change the venue in certain cases from Allegheny to Jefferson county.” The bill in this case was filed originally in the District Court of Allegheny county, and was there pending when by this act it was directed to be removed to the Court of Common Pleas of Jefferson county. If there was a provision in the constitution that no man should be sued except in the county of his residence, there might be some reason for holding this and all other acts of the same kind unconstitutional. But there certainly is no such provision. It is supposed that the establishment of a Court of Common Pleas for each county by Art. Y., sect. 1, necessarily implies as much. That would be carrying the doctrine of implication to a very extravagant length. A prohibition may be implied even in a constitution, but the implication must be very plain and necessary. The legislature possess all legislative power except such as is prohibited by express words or necessary implication. No doubt the object of the institution of a Court of Common Pleas in each county was that the administration of justice might be brought as near as possible to every man’s hearthstone. Of necessity, however, this cannot and ought not to be in all cases. The contention of the appellants would preclude the legislature from ever changing the venue of an action, though the voice of justice might imperatively demand it, and would even prevent the court of one county from entertaining jurisdiction where its process has been duly served on the citizen of another. Business or. necessity might oblige him to be there for a time, and it may be said to be very unjust to subject him thereby to a lawsuit at a distance from his home. The argument proves entirely too much. It is a power which has been frequently exercised by the legislature thus far, at least, without question of its constitutionality.

The second question is as to the effect o'f the judgment in the replevin suit recovered by the defendants against the plaintiff in the District Court of Allegheny county, and which was after-wards on a writ of error affirmed in this court: Corbett v. Lewis, 3 P. F. Smith 322. It is strenuously contended that the judgment in that case settled conclusively that Corbett had not fulfilled his contract by the delivery of lumber to an amount sufficient to vest in him any title to one-third of the land, and that it wrought an estoppel upon him from setting up such a claim in any other .action or proceeding. But it is too well settled to need either argument or authority to maintain it- that the estoppel of a judgment extends only to the question directly involved in the issue, and not to any incidental or collateral matter, though it may have arisen and been passed upon. This is clearly stated in the language of Lord Chief Justice De Grey in The Duchess of Kingston’s Case, 11 Harg. State Trials 261, 20 Howell’s State Trials 538, 2 Smith’s Lead. Cas. 424: “Neither the judgment of a court of concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognisable, nor of any matter to be inferred by argument from the judgment.” This rule, though there may sometimes be .difficulty in applying it, has never since been called in question: Moulton v. Libbe, 15 N. H. 480; Hibshman v. Dulleban, 4 Watts 183; Lentz v. Wallace, 5 Harris 412; Martin v. Gernandt, 7 Id. 124. The direct issue in the replevin suit was the right of the plaintiff at the time the writ issued to the possession of the lumber described in it. That certainly involved the question whether at that time Corbett had furnished lumber under his agreement sufficient to pay the cost of saw-mills and manufactory, when he was to receive an undivided third in the lands, mills, &c. It was required that the jury should go into the accounts so far, and so far only, as was necessary to settle that question. The direct object of that suit was not an account, and the judgment therefore could have been conclusive neither for or against either party in a subsequent proceeding for an account. The case of Campbell v. Conzalus, 25 N. Y. 613, is entirely in point, and well illustrates the doctrine. There had been a proceeding by a mortgagor to compel satisfaction, and upon the report of referees that there was still a balance due on it his bill was dismissed. Upon a subsequent bill by the mortgagee to foreclose, it was contended that the decree in the first case estopped the defendant from setting up that the mortgage was then paid, but the court held the contrary unanimously. “In consequence,” they say, “of the nature of the transaction, it was necessary to take and state an account between them which would show how much was due upon the mortgage, in order to determine whether anything was due; but the evidence and inquiry as to the amount due was merely incidental or collateral to the direct issue whether anything was due.” Give to the judgment in the replevin suit the full force which only can be claimed for it as proving that on the 8th of April 1865, when the writ of replevin was issued, the cost of the saw-mills and manufactory had not been paid for by Corbett, there is no finding or decree here which contradicts that fact. Schedule 6, reported by the master, shows that after crediting the mill with the full amount allowed by the jury in that ease (less the cost of manufacturing and running), $11,115, Lewis & Nelson were only found indebted to the mill, after deducting its full cost, $97.33. Had the lumber been delivered under the writ to the plaintiffs therein instead of having been retained by Corbett on a claim-property bond, it cannot be doubted that it would have been a delivery under the contract to be charged against the cost of .the mill, nor ought it to be any less doubtful that the damages recovered took the place of the lumber, to the extent of its value, and when paid by Corbett were a credit upon his contract.

Nor do we perceive any evidence of such fraud or violation of contract on the part of the plaintiff as ought to preclude him from the relief which he seeks by his bill in a court of equity. That he did wrong in withholding the lumber, which was the subject of the replevin, the jury in that suit decided, and he paid for it in costs and damages not allowed in this account. It is not every unfounded claim which a man may make or unfounded defence which he may set up, which will bar him from proceeding in a court of equity. The rule that he who comes into equity must come with clean hands must be understood to refer to wilful misconduct in regard to the matter in litigation: Snell’s Principles 35. All the illustrations given in Francis, p. 5, under the maxim, as he states it, “He that hath committed iniquity shall not have equity,” show this. There is nothing in the evidence to evince that Corbett did not believe that the lumber which he had ready to deliver at the time the replevin was issued would more than balance the account, and that he had a right to a settlement before delivery. The master has reported that down to the sale to Hill & Jackson it is not even alleged that Corbett did not perform his part of the contract. That sale certainly was a waiver by Lewis & Nelson of any further performance by him, for it put it out of his power by delivery of possession to the purchasers.

We come now to the 3d error assigned, which is that the court below erred in overruling the exceptions to the master’s report. These exceptions are not numbered, but the first five and the 11th have been already considered. The 6th and 9th take exception to the credit to Corbett for the 200,000 feet claimed by him in the replevin as his own separate property and of the nine hundred dollars for hauling the same. As to these matters, however, the verdict and judgment in that suit must be regarded as conclusive on both parties. It found Lewis & Nelson to be entitled to the possession of the whole, and that under their agreement with Corbett. It mattered not, therefore, upon what ground this decir sion was arrived at — whether that the two hundred thousand feet were bought with funds advanced by Lewis & Nelson, Or were improperly mixed by Corbet with the other lumber to the possession of which for sale they were entitled. The mixture could only have the effect of confounding these boards with those deliverable under the contract, and making them a part thereof. It could not create a new original and independent title to them. They must necessarily partake of the character of the title of Lewis & Nelson to those with which they were confused. Thus a mortgagee suing for the possession of the hypothecated property with which other property of the mortgagor had been so intermixed as not to be distinguishable, must take and hold the whole subject to redemption and account. So here Lewis & Nelson receiving the order of the whole on the title arising from Corbett’s agreement, must be held to have received the whole subject to account.

The 7th and 8th exceptions we think should have been sustained. The master charged Lewis & Nelson with the whole amount of the value of the lumber for which they contracted to sell the property to Newton Taylor, although it was an unquestionable fact in the cause that a large amount of it had not been received by them at the time to which the account was made up. By claiming what may for brevity’s sake be called the price or purchase-money of the fee simple contracted to be sold to Taylor, Corbett necessarily affirms that sale. The master says: “Viewing the contract of sale as a conversion by Lewis & Nelson of the real and personal estate, equity would charge them with the actual money value of the personalty thus substituted for the realty, at the time receivable under the provisions of the contract.” But it is not easy to perceive on what principle a tenant in common having made a contract to sell the common property with the consent, or, what amounts to the same thing, the subsequent ratification or affirmance of the other tenant, is in equity liable to account for more than he has actually received, when there is no fraud or bad faith, neither of which is imputed here. Had they actually parted with the legal title to a purchaser without notice so that Corbett was thereby divested entirely of his clajm to the land, there would perhaps be some plausible reason for holding them to account for the full value at the time of the sale, and assuming the agreed consideration in the deed, whether paid or not, as evidence of that value. But by the terms of the agreement witb Taylor, dated December 26th 1865, no conveyance of the legal title is to be made to bim until all the requirements of the article are complied with. Lewis & Nelson still hold the legal title as security for the balance of the purchase-money yet unpaid. That balance never may be paid. They may be compelled to proceed upon their legal title to collect it. The vendee may not be able to comply with the terms of a conditional verdict, and the land may have to be resumed or sold by tbe sheriff. At all events they may be subjected to costs, expenses and delay before the amount shall be fully realized. By the decree made on the master’s report, Lewis & Nelson are in effect compelled to become purchasers of Corbett’s interest. The plaintiff does not appear to have insisted upon a conveyance to him from Lewis & Nelson of the legal title to one-third, subject of course to Taylors equity. He is willing to accept his personal recourse against them for the purchase-money of the property contracted to be sold: but he cannot in equity, as it appears to us, call upon them to pay over to him any portion of that purchase-money, before it has been actually received. As the record must be remitted, and the account sent back to the master to be re-adjusted according to this opinion, it may be proper to observe that if any of the purchase-money has been received since this account was made up, it should be charged so as to bring up the settlement to the date of the final account.

As to the 10th exception, which includes several items, we may say that we think that the master ought to have allowed Lewis & Nelson a credit for the $250 paid to Thomas Hill for damages for the non-delivery of the lumber contracted to be sold to him, as well as for the $1200 paid by them to Hill & Jackson for money which they spent on the property in making boards; but we see no reason for allowing them for the fees paid to their counsel for the trial of the replevin suit. In an account as between tenants in common, which this is, all disbursements by either for the recovery, defence or protection of the joint property are legitimate matters of, discharge, but not the law expenses of any adverse suits between the tenants in common themselves. Such cases must follow the ordinary rule which punishes the losing party with the legal costs. Had Corbett succeeded in that suit he could not have charged Lewis & Nelson with the fees paid to his counsel. He might with as good reason claim to charge them with the fees paid by him in this case. The right must be a mutual one if it exists at all. As to the two receipts of October 14th 1863 and November 4th 1863, said to be marked F and Gr, we have not been furnished with copies, and see no reason to dissent from the conclusion which the master reached in regard to them.

We have thus considered and disposed of all the exceptions to the master’s report, under the 3d, assignment, from a desire to decide all the questions of importance in the cause. But we have not overlooked the fact that this assignment is in violation of Bule YI. (6 Harris 578), that “if any specification embrace more than one point, or raise more than one distinct question, it shall be considered a waiver of all the errors so alleged.”

Decree reversed, and record remitted for further proceedings.

Williams, J.

I concur in this opinion — but I would go further, and allow a deduction of the counsel fees paid by Lewis & Nelson in the replevin case.


source: Caselaw Access Project

author: by Agnew, J.

license: Public Domain

text:
    Dickens’ Case.
    1. An act highly discreditable but not infamous and not connected with an attorney’s duties, will not give the court'jurisdiction to strike him from the roll.
    2. An attempt to make an opposing attorney drunk to obtain an advantage of him in the trial of a cause, is good ground for striking an attorney from the roll.
    3. The duties, responsibilities and deportment of attorneys considered in this ease.

      4. Austin’s Case, 5 Rawle 191, remarked on.
    November 21st 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Certiorari to the Court of Common Pleas of Allegheny county: No. 202, to October and November Term 1870.
    On the 25th of April 1864, the petition of a number of the members of the Pittsburg bar was presented to the Court of Common Pleas of Allegheny county, setting forth that “ a member of the Pittsburg bar (naming him) has been accused by the public journals and common report of being guilty of illegal practices and unprofessional conduct, unbecoming a citizen and a member of the bar, and subversive of the laws of the state, and the good order and well-being of society.
    “ Tour petitioners therefore respectfully request your Honors to appoint a commissioner to investigate and report upon the truth of the above accusations, and that your Honors will take such further action in the premises as may seem meet.”
    The court thereupon appointed D. Ritchie, Esq., commissioner to take testimony and report the same, with the facts, to the court; and William B. Negley and M. W. Acheson, Esqs., to prepare charges and specifications, if deemed necessary, and conduct the proceedings on the part of the petitioners before the commissioner.
    The committee reported the following charges and specifications :—
    1. That on the 10th day of January 1864, “ Russell’s Panorama of the Rebellion,” which was then on exhibition at Concert Hall, in the city of Pittsburg, was sold by a receiver under an order of the Court of Common Pleas, the respondent becoming the purchaser at such sale; after the sale the panorama continued on exhibition at the place aforesaid, and for several evenings respondent ofiiciated at the treasurer’s office; the advertisements of the exhibition offered gifts to those attending, to be drawn or distributed by lottery; that during one of these exhibitions (after the purchase by respondent aforesaid) Anthony Wiedman, Esq., a member of the bar, drew one of the gifts offered, viz., a silver fruit or cake basket; that during the day previous to the evening of this exhibition respondent furnished said Wiedman with a pro-gramme, the number of which he informed him would be called out for the basket; that at the instance of respondent it was then arranged between him and said Wiedman that the latter should take the said programme, attend the exhibition and receive the basket as though everything had been conducted in good faith, but it was further arranged that said Wiedman should return the basket to respondent the following day; that in accordance with this arrangement said Wiedman attended the exhibition, drew the basket and the next day returned it to respondent. * *
    8. That on or about the 4th day of January 1864, while the Court of Quarter Sessions in and for said county was engaged in the trial of its December list, the respondent being then in court approached William Linn, Esq., a member of the bar, and stated to him that he (respondent) had the next case; that Jacob White-sell, Esq., was the opposing attorney in the case, and that he (respondent) was playing a sharp game in trying to get him (Whitesell) drunk, and' if he succeeded he could beat him; and the respondent did then and there request said Linn to take said Whitesell out of court and get him a drink; and it is charged that upon the occasion above referred to respondent did endeavor to make said Whitesell intoxicated in order to render him unfit properly to try his said cause, and with a view of obtaining an unfair advantage over him and his client, and that in furtherance of these objects he made the request of Mr. Linn above recited.
    The following testimony was taken on the 3d specification:—
    William Linn, Esq., sworn, testified: “I am a member of the Pittsburg bar; some months ago, I think in the early part of January, I went into the Common Pleas court-room, in the morning ; respondent came up to me and said, ‘ I am playing a sharp game this morningI asked him what it was; he said that he and Mr. Whitesell had the next case to try; he said he was getting Whitesell drunk for the purpose of beating him; I asked him how he was doing that; he told me that Mr. Wiedman had had him out, and he mentioned the number of drinks — I don’t remember how many, but it was several; I don’t remember precisely what I said, but I expressed my disapproval — I turned away from respondent; a short time afterwards he came back to me and asked me if I would do him the favor of taking Mr. Whitesell out and giving him another drink; he also said he would give me the money or the change to pay for it; I became very much enraged, and declined, using violent and profane language not necessary to repeat; this was heard by Wiedman — he heard most of what took place between us, at least he was standing near enough; all that saved his dog skin was that we were in the presence of the court; I then went to Mr. Whitesell and told him what had taken place.”
    Jacob Whitesell, sworn, testified: “I am a member of the Pittsburg bar; about the beginning of January last, I was concerned, on the part of the Commonwealth, in prosecuting an indictment for assault and battery, with intent to commit a rape, against a man named Boyd; respondent was one of the counsel for the defence; Mr. Linn came to me in or close by the court-room, and informed me what he has sworn to here; I did not mention the matter to respondent then, but I did afterwards, in Squire Neely’s office; we had an altercation about it, but I don’t remember what was said.”
    For the respondent:
    A. Wiedman testified: “ I heard a conversation in the courtroom between respondent and Mr. Linn about treating Mr. White-sell, Mr. Linn met respondent inside the bar; I stood outside; they were facing each other; I heard respondent say to Mr. Linn that his case, The Commonwealth v. Boyd, would be the next called up, and if my recollection is right, he said further he would like to have this case continued, I understood also that Mr. White-sell was counsel on the other side, and then I heard respondent ask Mr. Linn if he would not take Whitesell out and give him a big horn or big drink, I am not certain which; Mr. Linn I saw looking down on the floor a little, and then respondent asked him whether he had change; Mr. Linn made some remarks in very violent language; he said, “I’ll be God damned if I do it;” and then turned round and walked off; I did not hear anything said about my having taken Whitesell out and treating him five or six or any number of times; if I had heard any such thing I would have told respondent at once that it was an infamous lie ; no such thing was said as long as I stood there; I was standing close to the outside of the railing, and respondent and Mr. Linn were standing close to it, inside of the bar, facing each other; so long as I stood there I heard all that was said; I was there till Mr. Linn left the court-room and went out; I made a remark to respondent that Linn was mad, and he had better let him go; I don’t recollect precisely, but I think respondent remarked that Linn was drunk, or something like that.”
    On a question:
    [Mr. Forward desires to ask the witness whether he (witness) did not think the proposition on respondent’s part a jocular one.]
    Witness said: “Respondent met Mr. Linn and was smiling when he made the proposition; this was the manner he acted; I do not remember whether I met Mr. 0. B. M. Smith before the conversation or not I met him afterwards; I don’t remember whether I went with .respondent to the court-house or not; Mr. Linn went into the court-room just before me, and I followed him in; respondent was already in the inside of the court-room; after I followed Mr. Linn out, I met Mr. 0. B. M. Smith; he laughed, and asked me how many times I had Whitesell out to give him a drink, and made fun about it till at last I got mad; that is the only time I met Mr. Smith to the best of my recollection that day; the conversation between respondent and Mr. Linn took place openly; any one who was standing near could hear; I don[t remember what day of the week this was; I know the case was not tried that day; how long afterwards before it was tried I do not recollect. In the morning in the office something was said about treating Mr. Whitesell by respondent; he laughed about it, and said he wanted to have some fun with Whitesell up in court, and we all laughed about it. This was before we went into court that morning. Respondent proposed to me that I should get him and give him a couple of good big horns; I received his proposition as a mere joke, and did not say anything in answer to it; if my recollection is right, respondent said Mr. Whitesell had been drunk the day previous, and he would like to have the case postponed on account of not being ready; this is all that took place in the office.

      “ The case was tried by Mr. Kirkpatrick for Commonwealth, and Mr. Smith and respondent tried it for defendant; Mr. Whitesell was there with Mr. Kirkpatrick; I don’t recollect who examined the witnesses, but I think Mr. Kirkpatrick.”
    C. B. M. Smith, Esq., testified: “ Mr. Kirkpatrick was the principal counsel for the Commonwealth in the case of The Commonwealth v. Boyd; Mr. Kirkpatrick and Mr. Whitesell were counsel for the Commonwealth, and respondent and I for the defendant; I examined the witnesses and addressed the jury, but I did not regard the case as mine; I regarded myself rather as assistant to respondent; I do not know whether'I was employed before respondent was or not, but my impression would be that I was not; I don’t know of any serious proposition to treat Mr. White-sell for the purpose of getting him intoxicated; there certainly was none made or thought of on my part, and so far as I know personally there was no serious proposal on the part of respondent to do so. Before the case was tried respondent, Mr. Wiedman, and perhaps some others were in the office; I' think respondent was also there at that time; some one, I don’t know who, remarked that Mr. Whitesell had been drunk or on a spree, or something of the kind, a day or two before; and respondent, Í think, in a laughing way, said it might be a good thing, or something of that sort, for Mr. Wiedman to give him a horn to get him to take a drink; I can’t recollect what was said, as it made no sort of impression on me at the time; nothing further took place there ; I don’t know what Mr. Wiedman’s reply was, but I certainly did not understand it as anything serious; there was a good deal of laughing about the case; afterwards I spoke to Wiedman about it in a joking way, as I certainly did not think he' would attempt to do anything to Mr. Whitesell of that kind; he replied in the same way; I do not remember whether the case was tried that same week or not. Mr. Wiedman and respondent occupied at that time the same office; J\fr. Wiedman was in there at that time. I know his sign had been on there before, and think it was at that time. It was an office with two rooms; I don’t remember the time of day when this conversation occurred; my impression would he that it was the latter part of the day. I understood that Mr. Whitesell was one of the counsel in the case with Kirkpatrick, and that it was' his case; I understood from Mr. Kirkpatrick that Mr. Whitesell was concerned in the case. I had no consultation with Mr. Whitesell about the case at any time; I always spoke to Mr. Kirkpatrick about it.”
    On the return of the testimony by the commissioner, a rule was taken on the respondent to show cause why he should not be stricken from the rolls of the court.
    He put in answer denying the jurisdiction of the court, and also answering as to the facts alleged. As to the Bd specification he said:—
    “The 3d charge is wholly unfounded in fact, and is based upon either a wilful misrepresentation or misunderstanding of some jocular conversation had at the time, and occasioned by the following circumstances:—
    “ In the case of The Commonwealth v. E. P. Boyd, J. Whitesell, Esq., was known to be taking an active part for the prosecution, and on the day previous to the occurrence testified to by William Linn, Esq., the defendant had been ready with all his witnesses, and anxious to have the case tried; and on application of the defendant’s counsel to the district attorney to have the case called, he refused to take it up in the absence of Mr. Whitesell, who was not in court at the time, and in a state unfit to be there. On the succeeding day it happened that one of the defendant’s witnesses could not attend, and when the counsel of defendant were talking over the prospect of obtaining a continuance of the case, some one (not affiant) suggested that if Mr. Whitesell was in the same condition as he had been the day before, there would be no difficulty about the matter, as the district attorney would not try in his absence. It was proposed by some one (not affiant) that Mr. Wiedman, who was present at this conversation, should give him a horn. This was said in a joking manner, and with no real intention of securing the intoxication of Mr. Whitesell, and was so understood, he believes, by all present. Some time afterward, the same morning when he (respondent) and Wiedman were going over to the court-room together, C. B. M. Smith, Esq., met them in the rotunda, when Smith asked Wiedman, ‘ Did you give Whitesell that horn, yet?’ the reply to which he (respondent) does not remember; but a loud laugh followed on the part of Mr. Smith, and respondent passed on into the court-room. It was within a minute or two after this that he met with Mr. Linn, who is certainly mistaken in his version of what occurred, and the intention and meaning of what was said. Linn came up to where respondent was standing, and after the usual recognition respondent, still thinking and smiling over what had occurred in the rotunda, said, J. that dirty case is coming up, and we would like to get rid of it or have it continued ; the proposition is to give Whitesell a horn — won’t you treat ? As respondent said this, Linn made no immediate reply, and looked down upon the floor; when respondent added, have you change, when looking up Linn said, ‘No, I’ll be God damned if I do it,’ and appeared to be excited and insulted. Mr. Wiedman, who was standing by and heard all that was said, remarked, ‘ Linn is mad, let him go’; when respondent replied, ‘ No, he is drunk,’ which he actually thought to be the case from his actions, his appearance and language at the time, and in which belief he is confirmed from his, Linn’s, imperfect recollection, as shown by his testimony of what was said on the occasion.
    January 3d 1871,
    “ The case of Commonwealth v. Boyd was not tried that day, and not until the following week; that respondent did not treat said Whitesell that day, nor the day previous, nor at any subsequent time, nor did any other person for him, or at his instance ; neither was there any intention on his part, or on part of any one, as far as he knows, to do so, or in any way interfere with the due administration of public justice.”
    The court, Mellon, J., delivering the opinion, held that they had jurisdiction of the case, that the charges in the 1st and 3d specifications had been sustained, and ordered the respondent’s name to be stricken from the roll of the attorneys of the court.
    Stowe, J., was of opinion that the court had not jurisdiction as to 1st specification, but concurred as to 3d, and in the order to strike the respondent’s name from the roll.
    A special Act of Assembly was passed, March 15th 1870, allowing the removal of the case to the Supreme Court, and directing that court to hear and determine all questions of law and fact, and make all orders to carry the act into effect.
    A certiorari was accordingly issued, at the instance of the respondent, to the Court of Common Pleas, October 15th 1870; he assigned the order of the Court of Common Pleas for error.

      Moreland, Moore & Kerr and Wier & Gibson, for certiorari.
    There was no argument contra.
   The opinion of the court was delivered,

by Agnew, J.

This case comes before us under a special Act of Assembly, approved the 15th day of March 1870, authorizing us to take jurisdiction of it, and to proceed to hear and determine all questions of law and fact arising upon the record and proceedings in the cause. The name of J. Charles Dickens, an attorney of the several courts of Allegheny county, was, on the 26th of September 1864, stricken from the roll of attorneys of the several Courts of Common Pleas, Oyer and Terminer, Quarter Sessions and Orphans’ Court. This resulted from an investigation ordered by the Court of Common Pleas upon the petition of members of the bar, charging Mr. Dickens with misbehavior in his office, as an attorney, upon three specifications, to wit, Participating in the exhibition of “Russell’s Panorama of the Rebellion,” and making pretended gifts at the close of each exhibition of valuables, as an inducement to draw full houses — Acting in bad faith and fraudulently in procuring the extension of the real estate of John F. Perry, under execution, with a view to-hinder and delay his bon& fide creditors — And soliciting a member of the bar to make another member drunk, for the purpose of obtaining an unfair advantage in the postponement of a cause in which Dickens was attorney.

After a careful examination of the records and testimony in the case, we are of opinion that the 3d charge only is sustained. The 1st fails in point of law, and the 2d in point of fact. However unprofessional the conduct of Mr. Dickens was in relation to the exhibition of “Russell’s Panorama,” and we think it indefensible, his conduct on that single occasion ought not to be the ground of expulsion from his office of attorney. The doctrine of Austin’s Case, 6 Rawle 191, is, that the power of the court may be exercised against attorneys at law, either for a contempt which is an offence against the court itself, or for unfitness, which disqualifies the attorney from filling the office properly. In the present case no contempt was committed, and the expulsion rests upon the charge of unfitness to exercise the office of an attorney. If an attorney should by a series of unprofessional acts, disgraceful to him as a man, form a character which unfits him for association with the fair and honorable men of the profession, and disqualifies him from receiving the confidence of men of integrity, bringing reproach upon himself and upon the profession to which he belongs, we will not say such unfitness, the result of habitual practices, cannot be made the subject of inquiry by the court and expulsion from the bar. But certainly an act merely discreditable but not infamous, such as a participation in making pretended gifts as a means of giving notoriety to an exhibition innocent in itself, while it would lose a member of the bar the favor and countenance of the high-minded men of the profession, cannot of itself give jurisdiction to the court to take judicial cognisance of it, and expel him from his office. To admit such a power would expose the members of the bar to the whims, caprice, peculiar views and prejudices of judges. The office of an attorney is too important to him, to those dependent on his efforts, and to the public, to be thus at the mercy of any one. The preparation of years to enable one to practise, and the prospects of a lifetime, ought not to be in the power' of men, however upright, to blast, who, from peculiarity of disposition or habits of thought, may exercise the power unjustly. Austin’s Case is a forcible illustration of the thought just expressed. We are of opinion, therefore, that the 1st specification, though true in fact, was insufficient in law to support the order of expulsion.

The second specification is unsupported by the evidence, and we need take no further notice of it.

But the third we regret to believe is well supported. The testimony of C. B. M. Smith, Esq., a highly respectable member of the bar, does not apply to the same time and place testified to by Mr. Linn. The conversation between Dickens and Linn, in which the former told the latter of his purpose to make Mr. Whitesell, his opposing attorney, drunk, in order to beat him in the next cause coming on, and proposed to him to take Whitesell out and give him another drink, occurred in the court-room, and while the court was sitting. The conversation to which Mr. Smith refers took place in Dickens’ office. No doubt Mr. Smith thought at the time it was a joke on part of Dickens; but the testimony of Mr. Linn, as to the occurrence in the court-room, leaves a very different impression on our minds; and the facts stated by him are corroborated by Wiedman, while the opinion of the latter does not cleanse the facts of their real color. We are compelled to conclude that Mr. Dickens was “playing a sharp game” as he expressed it, in earnest; and that he was engaged in the unwarrantable and highly censurable attempt to make his opponent drunk in order to take an advantage of him. This was a wicked act, as well as one which struck directly at the due administration of justice. In its effect and criminal purpose it differs none from tampering with a juror, corrupting a witness or bribing a judge. It strikes directly at the interests of the opposite party, with as great force as if he lost his cause from the misconduct of juror, witness or judge. The man who can do this thing is unfit to practise in a court where justice is administered, and should be expelled from its bar; or at least should be suspended from the practice until he has shown by sincere amendment, that his offence is thoroughly purged. The office of an attorney at law is a highly honorable one, as well as one of great importance to society. The necessities of men, in a state of high civilization, require the profession of the law as a distinct calling; one to be exercised by men trained to it by a long course of study, and qualified by skill and learning to understand, protect and assert the rights of others, who by reason of the state of society, or their own inability, cannot act for themselves. As property increases and new forms of it are developed, new institutions are created for its management; and as the business of society multiplies, interweaves and expands, and wealth and luxury follow in the train of commerce and the arts, the relations of men become more and more complicated and render the profession of the lawyer indispensable and important. Integrity, as well as skill and learning, is essential to the character of the profession, and it becomes the duty of the bench, as well as of the bar itself, to preserve that character in its highest state, as a means of usefulness, and of answering the true end of a profession so honorable and at the same time so needful. Notwithstanding the prejudices of some, the ignorance of others, and even the discredit occasionally brought upon the office by unworthy members, we are glad to know that the bar is filled with many worthy men, and that a trust and confidence almost unlimited is iustly reposed in it by the public. In the present case the three judges of the court below agreed in opinion in finding the third specification to be true, and. in this we find no error. We are compelled, therefore, to affirm the order of the court under that specification, leaving the appellant to make his application to the judges of that court for readmission, should they think his offence sufficiently atoned for by six years’ exclusion from the practice of his profession in the courts from which he was expelled, and that he has retrieved his character by good conduct so as to warrant his return to practice there.

Order affirmed upon the third specification of the complaint, with costs.


author: by Read, J.

text:
    Ballantine’s Appeal.
    T. held real estate in fee in trust for his children or the survivors at his death. He had nine children, two died leaving issue, he then died, and one-seventh passed to each surviving child. Under the belief amongst the children that the issue of the deceased children took their parents’ shares, D., one of the children, conveyed to B. one-ninth of a portion of the trust estate, describing the portion, “being the same premises of which the late T. died seised and from whom D. inherited as one of the heirs at law of said T., also all the right, &c., of said D. of, &c., all the real estate of his late father T. to which he is in any manner entitled and wheresoever situate * * * to have and to hold the said undivided one-ninth part of said described land, &c., hereby granted, &c., or intended so to be,” &c. Held, that only one-ninth passed to B.
    November 21st 1870.
    Before Thompson, C. J., Read, Asnew, Sharswood and Williams, JJ.
    Appeal from the District Court of Allegheny county; In Equity: No. 209, to October and November Term 1870.
    The proceedings in this case commenced May 9th 1868, by bill for partition by Addison Reno and Hannah his wife against Nathaniel Ballantine, David J. Perkins and others.
    The land of which partition was demanded was situate in Chartiers township, Allegheny county, and was designated in a diagram accompanying the bill as four adjoining lots, marked A, B, C and D. The court confirming the report of the master, decreed (amongst other things) that David J. Perkins, a defendant, was “ entitled to one undivided seventh part of B and two-ninths of one undivided seventh part of C.” Ballantine claimed that Perkins was not entitled to any part of those lots, but that they should have been assigned to himself. The appeal in this case is by Ballantine from that part of the decree. The dispute is confined to lots B and C, although the other lots are referred to in the case.
    By deeds from Michael Fitzgerald and Charles Quigley, dated in 1834, 1835, 1836 and 1842, B, C and D had been conveyed in fee to Thomas Perkins the elder, each lot being under a trust as follows (with an exception as to D hereafter mentioned):—
    “ In trust, nevertheless, to pay over the net proceeds of the rents, &c., thereof, received by him from time to time, in equal portions (after deducting therefrom all the expenses he may deem proper to incur in making improvements and repairs on the said premises) to and between his children, James Perkins, grandson of said Michael Fitzgerald, Sarah Perkins, Eliza Perkins, William Perkins, Harriet Perkins and Thomas Perkins, or the survivor or survivors of them, and also amongst any other children of said Thomas Perkins and Rachel his wife, the daughter of said Michael, that may hereafter be born; and also to grant, bargain and sell said tract or piece of land in fee simple, or for any lesser estate, at such time as he may deem most expedient, and for such price and to such person as he may think proper; and to account for, pay over and divide the proceeds of the purchase-money to and amongst said children of said Thomas Perkins as are now living, or may hereafter be born, or the survivor or survivors of them, deducting therefrom any expenses incurred by him in improving or repairing the same, beyond the rents, issues and profits by him previously received from the same; with full power and authority to sell and convey the same absolutely, free and discharged of the trust hereby created on said land; and also with the same power and authority to receive the purchase-money arising from the same, and full acquittance to give to the purchaser therefor.”
    In the conveyance of D, after “ survivor or survivors of them,” the words, “ and their lawful issue” occur.
    In 1834 and 1849, Thomas Perkins the elder became the owner in fee in his own right of the lot designated as A, and also a lot in the town of McKeesport, in the same county.
    After the conveyance in trust to T. Perkins the elder, he had two other children, Hannah, one of the plaintiffs, and David, one of the defendants.
    On the 22d of September 1849, Thomas Perkins the elder, in consideration' of “ one dollar and natural love and affection,” made a deed to his son William, one of the cestui que trusts in fee, of lot B. Thomas Perkins died in 1855, intestate, leaving to survive.him seven children, of whom David was one, and children of his two daughters Sarah and Eliza, named in the' deeds of trust, they having died in his lifetime. In 1860, all William’s interest in the trust land was sold by the sheriff under judgments against him and conveyed to Ballantine. The opinion of the parties interested was that the conveyance of B:- by his father to William was a good execution of the trus^t, and that the remaining trust estate passed to the surviving children and the children of the deceased daughters in ninths. Such being the belief, on the 18 th of November 1864 David J. Perkins made a conveyance to Ballantine. The parts of the deed material to the question are as follows:—
    “ All the one undivided ninth part of that certain piece of land situate, &c., containing 45 acres (describing it by adjoiners), and being the same premises of which the late Thoma3 Perkins died seised, and from whom David J. Perkins inherited as one of the heirs at law of the said Thomas Perkins. Also, all the right, 'title, interest and claim of the said David, of, in and to all the real estate late of his father, Thomas Perkins, deceased, to which he is in any manner entitled and wheresoever the same may be situate.” The habendum of this deed is “to have and to hold the said undivided ninth part of said described land, hereditaments and premises hereby granted or mentioned, and intended so to be, with the appertenances, unto the said party of the second part, his heirs and assigns, to and for the only proper use and behoof of the said party of the second part, his heirs and assigns for ever.”
    In 1866, in actions of ejectment brought in the District Court of Allegheny county, in relation to lot B, it was determined that the deed from the father to William was not a due execution of the trust, and that lots B and 0, under the trust deeds, passed on the father’s death to his seven surviving children, and that the children of those deceased took no interest in the lots as had been before supposed. From this it resulted that David’s interest at the time he made the deed to Ballantine was an undivided one-seventh in each of lots B and C.
    The bill set out the title of the parties under the trust deeds, the conveyances above mentioned and others which do not bear on the controversy; it also set out the respective rights of the parties, and averred amongst other things, that David J. Perkins was entitled to oneseventh part of nine sixty-third parts of lot B and two-ninths of one-seventh or two sixty-third parts of lot C. The prayer was for partition of the lands according to the rights set out in the bill, &c., and for the appointment of a master and commissioners to make and report partition, valuation and assessment of owelties, &c.
    Ballantine answered admitting most of the averments of the bill; he denied that David J. Perkins was entitled to one-seventh of lot B, or two sixty-thirds of lot C, and averred that he himself was entitled to those parts together with other interests set out in the bill as belonging to him. He joined in the prayer for partition, but prayed that it might be made according to the rights as above averred by him.
    A replication was filed, and S. H. Greyer, Esq., was appointed master.
    The contention before him was, whether the description in the deed from David to Ballantine covered B, and -whether it conveyed all David’s interest in C, that is, nine sixty-third parts equal to one-seventh or seven sixty-third parts equal to one-ninth. The master, under objection by David, heard testimony on behalf of Ballantine from Robert Robb, Esq. He said :—
    “ This deed of David J. Perkins to Nathaniel Ballantine was written in Robb k McConnell’s office, by Eugene Snowden, who was a student of Robb & McConnell. I think David J. Perkins and N. Ballantine were both* in the office at the time the deed was written. I know they were both there when the instructions were given to- write -the deed. My impression is, and it is but an impression, that after the description of the property was blocked out in rough, Mr. Ballantine wanted it drawn so as to contain all the interest this young man had in the property, making some suggestions that there might be something outside of the one-ninth part to which it was alleged that this young man was entitled. I think a deed had been written in our office for one of the heirs some time previous to the writing of this deed. I refer to the deed from Charles P. Quigley to N. Ballantine. Mr. Ballantine suggested that the Quigley deed was not quite strong enough, and he wanted the deed from David J. Perkins to cover everything, that is, all his. interest as one of the heirs of Thomas Perkins. I wrote off the clause in the deed, beginning with ‘ also,’ after the description of the property in the deed, and instructed Mr. Snowden to incorporate that in the deed. That clause was put in for the purpose of covering all his interest in the property as heir of his father, Thomas Perkins. I could not state anything at all in regard to the habendum. I have no recollection whatever of giving Mr. Snowden any instructions -in regard to the habendum. My impression is that both David J. Perkins and Mr. Ballantine were there when the deed was drawn, and remained there until it was drawn.”
    The master found that David’s deed included lots A, C and D, but did not include B; he also found the deed by its terms conveyed only the one-ninth of C, and that the testimony of Mr. Robb was not sufficient to authorize a change. He reported accordingly, and the report was confirmed by the court, as is above stated.
    The errors assigned were:—
    1. That the court had not jurisdiction in partition to settle the conflicting claims of Ballantine and David J. Perkins.
    2. David J. Perkins not having asserted upon record any claim to the property in conflict with that set up by Ballantine, was not entitled to a decree against Ballantine.
    3. The case having been referred without anything from David J. Perkins, the answer should have been taken as true.
    4 and 5. The decree was error.

      May 18th 1871,

      T. MacConnell, for appellant,
    as to the jurisdiction, cited McMasters v. Carothers, 1 Barr 324; McMahan v. McMahan, 1 Harris 383; Law v. Patterson, 1 W. & S. 184; Clapp v. Bromaghen, 9 Cow. 530; Morris v. Vanderen, 1 Dallas 67; 1 Kent’s Com. 364; Brightly’s Eq. § 169. The averments in the answer are to be taken as true: Buckenhoff v. Brown, 7 Johns. Ch. R. 217; Lanning v. Smith, 1 Pars. R. 17; Peirce v. West, 1 Peters C. C. R. 351; Story’s Eq. Pl. 877; 2 Story’s Eq. Jur. § 1528.

      J. Veech, for appellee,
    as to jurisdiction, cited McCallum v. Germantown Water Co., 4 P. F. Smith 40. As to the construction of the deed: Co. Litt. 6 a; Shep. Touch. 475; 4 Kent’s Com. 468; 2 Washb. on Real Prop. 641, 642.
   The opinion of the court was delivered,

by Read, J.

This is a bill in equity filed by the plaintiffs against N. Ballantine and others, for the partition of certain real estate in Chartiers township, Allegheny county. N. Ballantine filed an answer admitting all the averments in the bill, with the exception of a part of those contained in the 15th and 18th paragraphs. On the 26th of September 1868, replication was filed, and on motion of plaintiffs’ attorney by consent, S. H. Geyer, Esq., appointed master and examiner on the issues raised by the answer of N. Ballantine. On the hearing before the master, Robert Robb, Esq., was examined as a witness on behalf of Mr. Ballantine. The claim made by Mr. Ballantine in the 4th paragraph of his answer for the interest of Charles P. Quigley in the Mc-Keesport lot, was abandoned by his counsel, there being no evidence to support it.

The 2d and 3d' paragraphs of the answer deny that David J. Perkins is the owner of one-seventh part of parcel B, and two-ninths of one-seventh (two sixty-third parts of parcel C), and aver that they were conveyed by said Perkins to said defendant Ballantine by deed dated the 18th of November 1864. This deed conveys in! the premises and habendum one undivided ninth part of land, which the master finds is neither parcel B nor parcel C, and that the general language used does not in any manner describe the interest of Perkins in those parcels. The testimony of Mr. Robb, if admissible, proves no mistake in the deed to be corrected. The master therefore, for reasons in which we agree with the court below to be correct, finds that there is no conflict of title, but that the averments in the bill are true, and the statements in the 2d and 3d paragraphs of the answer entirely unsupported by the deed and other evidence produced on the part of the defendant Ballantine, and we therefore affirm the decree and dismiss the, appeal at the costs of the appellant. In doing this, we express no opinion as to whether this is such a final decree as that an appeal lies from it, the point not being made, and we presume it to be the object of both parties to have the question finally settled at this time.


author: by Williams, J.

text:
    McClintock versus Criswell.
    1. A landlord in writing extended the lease of his tenants in consideration that they would make certain improvements ‘‘ at their own cost.” The improvements were made. The material-man entered a lien against the building under the Acts of May 1st 1861 and February 16th 1865, authorizing liens for alterations, with the proviso, that there shall be no lien where the alteration has been made by the lessee “ without the written consent of the owner.” Held, that the premises were not liable to the lien.
    2. The consent to repair in the agreement was only upon the condition of payment by the lessees and was not within the acts.
    3. The consent intended by the acts is an absolute consent, consistent with the right to do the work on the credit of the building.
    November 21st 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 211, to October and November Term 1870.
    This was scire facias on a mechanic’s lien, issued July 15th 1869, by William J. Criswell against Henderson Wilson, James Robinson and Washington McClintock, for materials in tbe repair or additions to a store-house belonging to McClintock, tbe other defendants being bis lessees. Tbe amount of tbe claim was $100. McClintock filed an affidavit of defence in which be averred:—
    “ That be is not indebted to tbe plaintiff in this case, and that tbe building described in tbe plaintiff’s lien is not subject to said lien. He further says that be is tbe sole owner of said bouse, and that tbe said Henderson Wilson and James Robinson, who are made defendants with him in this case, were bis tenants under a written lease, a copy of which is herewith filed. He further says that tbe work done by tbe plaintiff was not done for him (tbe said McClintock) by bis order or consent, or by tbe order or consent of any person authorized to act for him as bis agent; but that, by tbe terms of tbe said lease, tbe said tenants were required to make tbe improvement, for which this lien is filed, at their own expense, and no authority was given to them to contract any debt for which tbe building would be liable.”
    By tbe lease filed with tbe affidavit, McClintock on tbe 29th of January 1868 leased a store-room to Wilson and Robinson for one. year, from tbe 1st of April next ensuing. There was a stipulation for extending tbe lease. On tbe 15th of February 1869, the parties agreed, in writing, that tbe lease should be extended from April 1st 1870 to April 1st 1871. There was in this agreement tbe following covenant>

      January 5th 1871,
    “ It is agreed, also, in consideration of the party of the first part extending this lease as above, the party of the second part is to have a new front, with glass windows and door, put in at their own cost, the same to be done in good, workmanlike manner, and of the modern style.”
    The Act of May 1st 1861, § 1 (Pamph. L. 550), authorizes a lien to be filed for repairs, alterations or additions, in certain counties, and by the Act of February 16th 1865, § 1 (Pamph. L. 150), it was extended to Allegheny county. “Provided, That nothing in this act shall render property liable to liens for repairs, alterations or additions, where the same has been altered by any lessee or tenant, without the written consent of the owner or owners, or reputed owners, or his or her duly authorized agent.”
    The lien was filed under these acts.
    Judgment was entered for the plaintiff, October 5th 1869, for $101.50, for want of a sufficient affidavit of defence.
    This was assigned for error by the defendant, McClintock, on the removal of the case to the Supreme Court.

      J. A. Lowrie, for plaintiff in error.
    Mechanics’ liens depend entirely upon statute, beyond the terms of which they should not be extended: Bolton v. Johns, 5 Barr 149; McCay’s Appeal, 1 Wright 128. The building not being the contractor.’s the plaintiff should have secured himself in the bargain. Here by the lease, if he saw it, he knew the work was to be done at the lessees’ cost: Bruner v. Sheik, 9 W. & S. 119.

      L. B. Duff, for defendant in error,
    cited Leiby v. Wilson, 4 Wright 63.
   The opinion of the court was delivered,

by Williams, J.

This was a scire facias sur mechanic’s lien, in which the court below directed judgment to be entered for plaintiff against the defendants for want of a sufficient affidavit of defence. The plaintiff’s claim was for work done and materials furnished, at the request of the lessees and occupants of the building, in and for the construction of “ a new front, with glass windows and door,” which they had covenanted “ to put in at their own cost,” in consideration of the lessor’s extension of the lease for another year. Is the plaintiff’s claim a lien on the building as against the lessor and owner of the property ? It is, if the work was done with the written consent of the owner, as required by the act under which the claim is filed, otherwise it is no lien. The only consent which the lessor gave is that which is evidenced by his covenant with the lessees binding them to make the improvement at their own cost. Undoubtedly, as between the parties to the covenant, this was a consent on the part of the lessor that the lessees might make the improvement.

But was it such a consent as is required by the act in order to entitle the plaintiff to a lien for the work which he did, and the materials which he furnished, at their instance, in making the improvement ? The consent which he gave, if the covenant can be regarded as such, was not absolute but qualified and conditional. By its very terms it amounted to no more than a consent that the lessees might make the improvement at their own cost. Speaking through the covenant the lessor said to the plaintiff: “I consent that the lessees may put a new front in the building demised to them, provided they do it at their own cost, but not otherwise.” What right, then, had the plaintiff, or what right have we to treat the consent as absolute — to take the consent without the qualification annexed to it ? It seems to us that the consent intended by the act, under which the claim in this case was filed, is an absolute consent — such a consent as is consistent with the right to do the work on the credit of the building, though it may not expressly authorize it. It must not be clogged with any such condition or qualification as is inconsistent with the right to charge the building with the cost of the work, or which impliedly forbids it. For these reasons we are of the opinion that the consent evidenced by the covenant in this case is not such as the law requires. And in so deciding we do no injustice to the plaintiff. If he did the work without reference to the covenant, then he did it on the personal responsibility of the lessees, and is not entitled to charge the building for the price of the work and materials. If he looked at the covenant he had notice that the work was to be done at the cost of the lessees, and that the lessor did not intend to incur any responsibility for it whatever. What right, then, had he to do the work on the credit of the building ? If he was not willing to do it on the terms assented to by the owner, he should have declined the job or exacted security for its payment. He had no right to do the work and charge the building. It follows that under the facts set forth in the affidavit of defence he was not entitled to recover, and the judgment must be reversed.

Judgment reversed, and a procedendo awarded.

Thompson, C. J., dissented.