on September 12, 1905, and recorded in 17 in the opinion in Baxter v. Allen. It folO. C. Adm. Docket 310. 7. In her account, so filed and confirmed as aforesaid, the accountant charged herself, inter alia, with the sum of $3,500, part of the proceeds of the "sale of real property in Scottdale borough to S. A. Lowe." lows that the distinction is material or that Moorhead v. McKinney no longer controls. It is hard to understand what difference it can make whether the judgment is without lien through failure to revive or because the real estate was acquired after judgment obtained. Neither was a lien before death of defendant and both became liens by reason of his death. The reasoning of the court in Baxter v. Allen applies as well to the one 8. The said judgment recovered by the plaintiff not having been paid in whole or part, the death of the defendant, S. C. Stevenson, was suggested of record on October 18, 1906, and M. B. Stevenson, admx., sub-class as to the other. Moorhead v. McKinstituted on the record as defendant. Whereupon the same day a writ of scire facias was issued on said judgment to No. 383 November term, 1906, aforesaid, against the said M. B. Stevenson, admx., as aforesaid, with notice to the said Samuel A. Lowe, terretenant, which writ was duly served upon them. ney is cited with approval in Kingmaker v. Brown, 14 Pa. 273, and followed in McMurray v. Hopper, 43 Pa. 472. And in Bresicker v. Cobb, 13 Sup. Ct. 66, it is noticed that in Moorhead v. McKinney "the judgment never was a lien on the land in question, whilst in Baxter v. Allen it was," and suggest that "this is the ground upon. which the cases are to be distinguished." If the court be of the opinion that the said plaintiff, under the law, is entitled to recover The case in hand in its facts is like that of of the lands as aforesaid, so conveyed to the Moorhead v. McKinney in that in each we said Samuel A. Lowe, terre-tenant, as afore- have a judgment inter vivos, after acquired said, then judgment to be entered for the lands and death of defendant. And there is plaintiff against defendant, administratrix, no possible distinction in the case, if the act as aforesaid, de terris, but if the court be not of June 8, 1893, P. L. 392, is to be conof that opinion, judgment to be entered in strued in the same way as was section 2, act favor of the plaintiff and against the defend- of February 24, 1834. At this point the ant alone, and in favor of the terre-tenant; matter becomes more interesting, and, if the costs to follow the judgment, and the possible, more difficult of solution. The parties reserving the right of appeal. language of the two acts is almost identical. Opinion by DoTY, P. J. Filed June 29, The act of 1834 limits the lien of debts of a 1907. The difficulty, if any, in this case is occa sion by an apparent conflict in the authorities. Moorhead v. McKinneg, 9 Pa. 265, expressly holds that a judgment inter vivos is not a lien on after-acquired real estate during the life of the owner, and at his death becomes a lien as a debt merely. Baxter v. Allen, 77 Pa. 468, holds that a judgment, without lien on real estate at the time of defendant's death, does not fall into the class of mere debts whose lien is limited to five years. In the one case the lien was lost by failure to revive in defendant's lifetime; in the other the judgment was no lien on afteracquired real estate. This distinction, which is the only one to distinguish the cases, was not referred to in the later case, and although Moorhead v. McKinney was cited at the argument, no reference is made thereto decedend to five years, "except they be secured by mortgage or judgment." The purpose of the act of 1893 as expressed in its title is "to limit the duration of the lien of the debts of decedents other than those of record on their real estate." It is plain, therefore, that there is nothing in the language of the act of 1893 which justifies a construction different from that given to the act of 1834. In this dilemma what is to be done? The case in hand is very like that of Moorhead v. McKinney. The latter was governed by the act of 1834; and this by the act of 1893. The judgment here became a lien September 14, 1903, by the death of the decedent, but the scire facias to revive was not issued until October 18, 1906, or more than two years after the death. In the meantime the property was sold, to wit, on June 4, 1904. The Book Notice. ANNOTATED. STREET RAILWAY REPORTS Electricity as a motive power has revolutionized the use of the streets and highways for transportation purposes. question is: Was said judgment then a lien on such real estate? Originally the debts of a decedent were liens upon his real estate for an indefinite period. Without considering prior legislation; the act of June 8, 1893, limits the lien of debts of decedents other than those of record to two years. The exact language of the act is: "That no debts of a decedent dying after the passage of this act, except they be secured by mortgage or judgment, shall remain a lien en the real estate of such decedent longer than two years after the decease of such debtor." If at liberty to follow the plain language of the act, the matter is readily solved. The title shows the purpose of the act is to limit the duration of the lien of debts of decedents other than those of record, and in section 1 there is an express exception of debts secured by mortgage or judgment. In this case there was a debt of record, a debt se-negligence have a special application to the cured by judgment, and by the plain terms of the act the limitation provided does not apply. No elaboration could make the language more clear. In plain and unambigu ous terms it is delared that the act has no application to a debt in judgment. Although we confess inability to discover any substantial difference in the language of the two acts, and cannot appreciate the distinction which it has been said may possibly distinguish Baxter v. Allen from Moorhead v. McKinney, at this juncture our course is a clear one. We are constrained to hold that the act of 1893 does not apply because such is the unmistakable language of the act itself, and because such construction is declared in Bresecker v. Cobb, 13 Sup. Ct. 56. And with this act eliminated there is plain sailing, as the act of 1834 has no application because the action to revive was brought within five years from the death of the debtor. And now, June 29, 1907, judgment in favor of the plaintiff and against the defendant, M. B. Stevenson, administratrix of S. C. Stevenson, deceased, de terris with notice to Samuel A. Lowe, terre-tenant. For plaintiff, Williams, Sloan & Wegley. (From Wm. S. Rial, Esq., Greensburg, Pa.) Along with this great development there has grown up a well-defined and distinct street railway law. This law comprises fixed principles governing the rights and duties of street railways as carriers of passengers materially differing from those of other com mon carriers. The rules and doctrines of the law of liabilities of street railway companies for injuries to pedestrians and drivers of vehicles upon the streets and highways owing to the peculiar rights of such companies to a use thereof. Many other special principles have arisen determining the rights, duties and liabilities of such companies, the traveling public, abutting owners and municipalities. The Annotations and Notes have been carefully and exhaustively made and contain a discussion of the principles involved, and cites many earlier cases upon kindred subjects. About 2 volumes a year, price $5.00 per volume. MATTHEW BENDER & COMPANY, Law Publishers, Albany, N. Y. Where, upon petition for the appointassets of the alleged bankrupt except those ment of a receiver, the creditors show no directly involved in a foreclosure suit, the case of Matter of Mckane, 18 Am. B. R. 594, holds that they will be required to furnish a bond to pay the expenses of the receivership if sufficient assets applicable to that purpose are not discovered. It has been held, In re Kehler, 18 Am. B. R. 596, that where an alleged bankrupt is judicially adjudged insane after the filing of the petition in bankruptcy, court has jurisdiction to administer his estate where its jurisdiction is based upon acts of bankruptcy alleged to have been committed while he was sane. Pittsburgh Legal Journal The case was stubbornly contested, and it ESTABLISHED 1853. EDWARD B. VAILL, N S. Vol. XXXVII. 0. S. Vol. LIV. EDITORS was only by the exercise of more than ordinary professional skill that a verdict in favor of the plaintiff was secured, the counsel engaged fully earning all that was stipuNo. 28. lated for. PITTSBURGH, PA., JANUARY 22, 1908. It appears, however, that on October 16, 1903, a fraudulent debtor attachment, under the Pennsylvania act of 1869, was issued by Circuit Court, United States, the Kittanning Safe Deposit Company in the WESTERN DISTRICT OF PENNA. CAIN v. THE HOCKENSMITH Attorneys' fees-Privity of payment—Money paid into court-Attachment. A claim for counsel fees in favor of plaintiff's at torneys, upon a judgment recovered by them for thelr client, cannot be preferred over a prior attachment levied on the money in the hands of the defendant as garnishees. No. 35 November Term, 1904. Common Pleas of Westmoreland Co., Pa., against the plaintiff here, in which the Hockensmith Wheel & Car Co. were named as garnishees. There was no service of the writ upon Cain, who was a resident of Ohio, and as to him it was returned not found. But a service was effected on the garnishees on October 17, 1903, and after certain interlocutory proceedings, not necessary to notice, a verdict and judgment having been recovered in this court, as stated above, and a judgment by default having also been entered against Cain in the attachment proceedings, the garnishees admitted being in Opinion by ARCHBALD, D. J. Filed De- debted to him and having moneys of his in cember 19, 1907. The question to be disposed of upon this motion is whether a claim for counsel fees in favor of plaintiff's attorneys, upon a judgment recovered by them for their client, is to be preferred over a prior attachment levied on the money in the hands of the defendants as garnishees. The facts are not in dispute and are as follows: their hands, to the amount so recovered, upon which judgment therefor was accordingly entered against them. Being notified, however, of the claim of Mr. Thompson to counsel fees and the assignment made to him, and being thus between two fires, the garnishees asked leave to pay into court here what was found to be due from them, and this having been allowed, it is now to be determined, as stated above, whether the claim for counsel fees is to prevail over the attachment, reducing by so much the amount which the attaching creditors would otherwise be entitled to take out of court, the entire fund being required to satisfy the judgment which they held. It is manifest that, in the consideration of this question, the formal assignment of counsel, to secure compensation for their services, of a certain portion of the plaintiff's claim, adds nothing to their standing here. With On June 25, 1904, the plaintiff, W. A. Cain, having a disputed claim against the Hockensmith Wheel & Car Co. for construction work done in the winter and spring of 1903, employed Benjamin H. Thompson, Esq., an attorney-at-law of Pittsburg, Pa., to prosecute it, agreeing to pay him 10 per cent in case of a settlement without trial, or 25 per cent of the amount recovered in the event that a jury trial was necessary; and in order to secure Mr. Thompson, an assignment of so much of the claim as would cover the fees and costs was executed. There-out it, an agreement for a contingent fee to upon, no settlement having been effected, suit was brought in this court on September 8, 1904, and was so proceeded with that a verdict in favor of the plaintiff was recovered on May 25, 1906, on which a judgment for $2,447.12 was subsequently entered. be paid out of the amount recovered would of itself have constituted an equitable assignment which the courts would recognize and enforce. Patten v. Wilson, 34 Pa. 297. While, on the other hand, if the attachment was effective, as supposed, to bind the money in the hands of the garnishees from the date of service, an assignment afterwards, legal or equitable, would not retroact and overcome this advantage. Without regard to the assignment, therefore, the right of counsel to have their fees paid out of the fund depends on whether they have a lien upon it because of their services, and it is to that that the case comes down. other parties-an arrangement, which while good as to the grantor herself was bad as to creditors, and was claimed by counsel by whose professional services it was recovered back from a party to whom it had been improperly paid by the trustee, pending litigation over it, as well as by a creditor who had attached the money in such party's hands. The fund having been paid into This is a matter of local law, and is not to court was awarded to the attaching creditor. be disposed of on any independent views en- "It is true," says Smith, J., "that in equity tertained by the Federal courts. Gregory v. a chancellor has power to direct the payPike, 67 Fed. 837. Turning then to the ment of reasonable counsel fees, out of Pennsylvania decisions, no lien for counsel moneys for distribution, when the fund is fees is there recognized, the right of counsel the product of the attorney's labors, and he to be paid out of a fund in hand being has agreed to look to it solely for his comone of deduction or defalcation only. It at-pensation. McKelvy's Appeal, 108 Pa. 615. taches in favor of counsel, in other words, * * * But there is no warrant for the to that which he has in his actual possess- proposition that at law an attorney's claim ion. If he has papers, he may retain them for services, for a sum not judicially asceruntil paid for his services in the particular tained nor assented to by other claimants, is case to which they belong; or if he has col- a lien upon the fund attached, as against lected money, he may deduct his fee before such claimants. To hold that an attorney's being compelled to turn it over. Dubois' fee is a lien on the money in court, because Appeal, 38 Pa. 231; McKelvy's Appeal, 108 it was recovered through his services, would Pa. 618. Indeed, in Patten v. Wilson, 34 be to ignore the doctrine of Dubois' Appeal, Pa. 279, upon which some reliance seems to 38 Pa. 321, the principles of which are disbe placed to support the claim for counsel tinctly recognized in McKelvy's Appeal, fees, it is expressly declared that the at- supra, although the cases differ materially in torney there had no lien on the fund at- their facts. However desirable it may be to tached by virtue of his professional relation, allow claims of counsel for services out of the case being ruled in his favor solely on funds which those services secured it canthe ground that the agreement between him- not be done in the absence of legislation perself and his client amounted to an equitable mitting it, to the prejudice of other creditors assignment, and that, being prior, it was who have liens upon the money." therefore superior to the attachment. In the present instance, however, the attachment is first, and so apparently entitled to priority; and while it may be that if the fund were actually in the hands of counsel, who represent the plaintiff, they would not be required to part with it without deducting their fees, yet in order to avail themselves of this privilege it would have to be in their positive control, in this way, and it is not the same, that it has been paid, as it has, into court. But the question is set at rest beyond peradventure by the decision in Patrick v. Bingaman, 2 Pa. Sup. Ct. 113. The fund there in controversy was part of an estate which had been conveyed in trust for the benefit of the grantor for life, with remainder over to Nor is this ruling weakened by anything which appears in Mann v. Wakefield, 11 Pa. Sup. Ct. 18, when the facts of that case are considered. The fund there belonged to an insolvent estate, and had been produced as the direct result of litigation instituted to have it so established. And it was under these circumstances that counsel, by whose services this was brought about, were allowed compensation out of it in preference to certain attaching creditors, who, while the liti gation was in progress and before it had finally been disposed of, secured judgments and issued execution attachments, summoning the party in whose hands the moneys were as garnishee. "The evidence clearly shows," says Orlady, J., "that the fund was produced largely, if not entirely, through was ALLEGHENY COUNTY. KEIFNER v. PITTSBURGH C. c. & ST. L. RY. CO. the professional services of the counsel Court of Common Pleas No. 1, named. The litigation was tedious and complicated, and was resisted until the entering of a judgment by the Supreme Court. The amount claimed (by counsel) found by the auditor and court to be fair and reasonable. His services were instrumental in creating a fund which inured to the benefit of all, and it was proper that his claim should be paid first." Action for death of husband-Verdict for plain- A (widow) recovered a verdict for the death of B The distinction to be observed with regard to that case is manifest. The fund there was the immediate outcome of litigation prosecuted for the benefit of all parties interested, without which there would have been no fund at all for any of them. The conditions under which it was distributed were also such as to permit equitable considerations to have play. By contract, however, in the present case, as in Patrick v. Bingaman, supra, the parties stand strictly on their legal rights, beyond which the court is not at liberty to go. And while the money widow and children of John Keifner, deMuch as we deplore the sad loss to the for distribution at this time was no doubt widow and children of John Keifner, deforced out of the garnishees, as the result of ceased, the undisputed facts of the case and the verdict recovered here, yet it cannot be the well settled rules of law prevent a resaid, in any real sense, to have been pro-ment be entered for the defendant non obcovery of damages and require that judgduced or created thereby. The plaintiff's ment be entered for the defendant non obclaim, which was thus made good, existed stante veredicto. without regard to the action which was instituted upon it, however it may have been so brought to a head, all that was done by counsel being to prosecute it to a successful conclusion. But this could just as well have been done in the attachment proceedings as here, and in either instance the counsel respectively engaged would have acted therein, not for the benefit of others concerned, although possibly resulting in that, but solely in the interest and for the advantage of the client by whom he was specially employed. This does not make out a case for compensation out of a fund produced by services rendered, and the money must, therefore, go to the attaching creditors, the claim of plaintiff's counsel being denied. Let a formal order to that effect be entered. For plaintiff, Harry H. Fisher. For defendant, J. M. Shields. The right of the owner of a dog to maintain an action against one who wantonly and maliciously kills or injures it is sustained in Columbus Railroad Co. v. Woolfolk (Ga.) 10 L. R. A. (N.S.) 1136. On December 3, 1901, Mr. Keifner purchased a ticket at Carnegie station for a station three miles west. To reach the westbound track upon which his train would arrive it was necessary to cross the eastbound track-and his view along the trackway was clear and unobstructed for 500 yards. Although the coming of his train had been announced by the ticket agent, it had not arrived, but was approaching the station when he started to cross the eastbound track upon which he was run down and killed by a train running at a high speed. Briefly, the story of the accident appears in the testimony of eye witnesses-Miss Mack, Mr. Lee and Mr. Black. MISS MACK TESTIFIES. Q. Were you at the station at Carnegie on the morning of the third day of December, 1901? A. Yes sir. |