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On this bond suit was brought and judgment recovered against
said Joseph, before the amendment of said decree hereafter men-
tioned.

On the 6th of August 1833, George Byertz stated by affidavit to
the orphans' court, that the said Margaret died intestate in January
or February 1814, before the said real estate was decreed to Joseph



May 1836.] OF PENNSYLVANIA. 177

[Hassler's Appeal.]

Hassler, leaving to survive her a daughter, named Polly, with whom
he is intermarried; that in the decree of the land to Joseph, the name
of Margaret, who was dead, is used, and a share decreed to her in-
stead of her daughter and heir, Polly. Whereupon the court granted
a rule on all. the heirs and all other persons interested in the estate
of Margaret Hassler, to appear on the 17th of September next, to
show cause why the share decreed to Margaret should not be de-
creed to Polly, now Polly Byertz, the only child of Margaret.

April 8th, 1834, in the matter of the rule on those interested in
the estate of Margaret Glatfetter, to show cause why the name of
Polly Byertz should not be inserted in the place of Margaret Hass-
ler, the court, at the instance of John Evans, Esq., direct an issue
to the district court on the petition, to try the facts.

George Byertz v. Frederick Glattfetter. In the district court of
York county, March term 1834, issue directed by the orphans'
court to try the truth of the facts stated in the affidavit of George
Byertz, presented to the orphans' court on the 6th of August 1833.

And now, to wit, November 22d, 1834, a jury of the county
being sworn, do say that they find for the plaintiff, November 26th,
1834, judgment absolute.

In the orphans' court of York county, April 7th, 1835, in the
matter of the estate of Christian Hassler deceased, on motion of John
Evans, Esq. the rule of the 6th of August 1833, is made absolute,
and the decrees on No. 1 and 3 of said estate are directed to be
amended according to the finding of the jury, by inserting in the
place of said Margaret's name, the name of Polly, now Polly By-
ertz, the only child of said Margaret.

At the time of the decree of the orphans' court awarding the in-
quest to make partition, Margaret Hassler was the wife of Freder-^
ick Glattfetter; the said Frederick is still living.

May 8th, 1815, letters of administration were granted to Freder-
ick Glattfetter on the estate of his deceased wife, Margaret, late
Margaret Hassler. To August term 1815, Frederick Glattfetter
brought a suit as administrator of his wife Margaret, on the recogni-
zance in the orphans' court, against Joseph Hassler. On the 8th of
August 1815, Joseph Hassler confessed judgment, and in March 1816
paid the amount of said judgment to Margaret Hassler's administra-^
tor, Frederick Glattfetter.

Errors.

1. That the orphans' court erred in altering the decree of 1814,
twenty years after the money had been paid under it, by Joseph
Hassler.

2. That said decree of the 7th of April 1835, is erroneous even if
the court had power to make it, inasmuch as Frederick Glattfetter
in any state of facts is entitled to the money or its interest during
his life.

3. That Joseph Hassler, or his executors, should have been made

v. x



178 SUPREME COURT [Harrisburg

[Hassler's Appeal.]

a party to the issue granted by the orphans' court and subsequent
proceedings.

Lewis, for appellant.
Evans, contra.

PER CURIAM. The decree had, by relation, become part of the
recognizance; and to alter the one, was to alter the other. To do
that, required a stretch of power as palpable as that which was the
subject of judicial animadversion in Catlin v. Robinson, 3 Watts
373. There, a title was attempted to be destroyed; here, a debt is-
attempted to be fixed on a party by means of a contract into which
he had not entered, and this, too, after the money had been paid to
another under a decree of the same court which attempts to fix him
with payment of it a second time. It certainly ought not to repair
the consequences of its blunders at his expense. But were the mo-
ney still in his hands, nothing in the guise of an amendment could
make him liable on a recognizance he had not acknowledged; and
to alter an instrument is to make it a new one, because the alteration
would give it a new legal effect. For this reason an altered instru-
ment is always laid as a new one in an indictment of forgery, no
notice being taken of it as having existed before in another form.
In a case like the present, to vacate the decree, would render it ne-
cessary to vacate the recognizance and take out a new one conforma-
bly to the alteration introduced; and when that could not involve
the debtor in a mispayment, we see no reason why it might not be
done. Even that, however, was unnecessary. The husband of the
deceased daughter was tenant by the curtesy of the land and conse-
quently tenant by the curtesy of the money into which it was turned;,
so that payment could be rightfully made but to him in the first in-
stance, though in his own right and not as her administrator. All
that remained to be done, therefore, was to exact security of him
that the principal, at his death, should be paid over entire to his
child; and this the court ought to have done. The order to amend
and the amendment made are vacated; and the decree, as originally
pronounced and recorded, is affirmed.

Decree accordingly.



May 1836.] OF PENNSYLVANIA. 179



Hain against Martin.

In an action of ejectment, it is not a valid objection to the competency of a witness
called by the plaintiff that he is one of the defendants, if he was merely made a defend-
ant because he lived on the land.

In an action of ejectment brought by a vendor to compel the payment of purchase
money by the vendee, it is not competent for the defendant to give evidence of the pay-
ment of a sum of money by him to counsel to defend his possession of the land in an
action of ejectment which had been brought against him.

ERROR to the common pleas of Dauphin county.

This was an action of ejectment by Marcus Martin's executor
against Daniel Hain and others, to compel the payment of purchase
money. The facts are sufficiently stated in the opinion of the court.

J. Jl. Fisher, for'plaintiffin error.

M'Clure and M'Cormick, contra, whom the court declined to
hear.

SERGEANT, J. Ejectment for two separate tracts of land, one of
one hundred and sixteen acres arable land, the other ninety-eight
acres mountain land. General appearance and plea of not guilty.

The plaintiff' deduced title from the commonwealth down to his
intestate Marcus Martin. The defendants set up title to the one
hundred and sixteen acre tract under an article of agreement of the
31st of December 1808, between Marcus Martin and John Foustfor
the sale of the two tracts to Foust, and the purchase of Foust's right
in the one hundred and sixteen acre tract by Daniel Hain (whose
heir was John Hain the defendant^at sheriff's sale, as the property
of Foust, on the 21st of November 1822, in consideration of 2600
dollars. By the agreement Foust was to have possession of the
land, but was to pay for it by a certain time, and to render services
and deliver certain articles to Martin and his wife during their lives
and the life of the survivor. The plaintiff alleged that this agree-
ment had not been complied with; that the services were not per-
formed, and the purchase money not paid ; and it appeared in
evidence that nine bonds, amounting to 800 pounds of the purchase
money, remained unpaid. As to the performance of the services and
the amount due on account of them, there was a dispute between the
parties, and it was left as a fact to the jury.

It further appeared that in 1823, Foust left the premises, and
Martin took possession and refused to surrender to Hain ; but in
1829, Hain's heirs recovered from Foust's representatives, one hun-
dred and four acres of the one hundred and sixteen acre tract; twelve
.scares having been reserved by Martin in his agreement with Foust,



180 SUPREME COURT [Harrisburg

[Hain v. Martin.]

during the lives of Martin and his wife. Martin died in 1825, and
his wife in 1826. For the value of these twelve acres from the time
of the wife's death, the jury were directed to credit the defendant
in account, and also for the value of the one hundred and four acres
while in possession of Martin, and for any injury the land had sus-
tained by the neglect or misconduct of Martin while in his posses-
sion.

One defence taken by the defendant, (see the points) was that the
taking possession of the one hundred and sixteen acres by Martin,
and the retention of them by him and his representatives till recov-
ered in ejectment by Hain's representatives, rescinded the agree-
ment of 1808, and barred the plaintiff's recovery. Another was,
that Hain never was in possession of the ninety-eight acre tract, but
that it had continued in the possession of Martin and his adminis-
trator, the plaintiff. The evidence as to the ninety-eight acre tract
was clear, that Hain's administrators, after recovering in 1829,
placed tenants on the land recovered, and directed them to get their
firewood and rails on the ninety-eight acres, and they did so. This
was sworn to by Frank, the tenant, and not contradicted by Fox
when called in reply, and was evidence of possession. As to the
other point, namely, the taking possession of the one hundred and
sixteen acres by Martin, its effect was done away by the recovery
in Hain's ejectment, which affirmed the original agreement, and re-
stored the parties to their former rights. We are of opinion there
was no error in the answers of the court to the defendant's points.

The first and second bills of exceptions have not been much urged
by the counsel for the plaintiffs in error, and we see nothing improper
in the admission of the evidence.

The third bill was to the admission of Jacob Grove as a witness
for the plaintiff. It is true, he was a defendant on the record, but
he had no interest in supporting the plaintiff's recovery against him-
self and the other defendants. Whether he was the plaintiff's tenant
or not, was a fact in dispute. According to his own testimony, he
was not; he went in of his own accord, and the plaintiff told him he
would have nothing to do with him.

The fourth bill of exceptions is to the rejection of the evidence
offered by the defendant of the fees paid to counsel in the ejectment
brought by Hain against Martin, and the question is on the proprie-
ty of rejecting that evidence. No case has been referred to by the
counsel for the plaintiff in error which justifies its admission. The
case of Penn v. Preston, 2 Rawle 14, cited as authority for it, by no
means supports the principle. In Fulweiler v. Baugher, 15 Serg.
Sf Rawle 45, an action was brought by the vendor of land on bonds
given for the consideration money: the title of the plaintiff was ori-
ginally defective for part of the land sold, but was perfected at the
time of trial. The defendant claimed a deduction from the purchase
money, amongst other things of certain expenses, distinct from the
costs of suit, which had been incurred in defending ejectments



May 1836.] OF PENNSYLVANIA. 181

[Hain v. Martin.]

brought for the defective part. But they were not allowed; the de-
fendant not having given the plaintiff notice of the suits. The legal
costs and fees of suit would seem in general to constitute the stand-
ard by which the liability of parties in this respect is to be measured.
They furnish something precise and definite, and reimburse all that
is legally ascertained to have been expended or incurred. The sums
paid to counsel are usually matters between the party and his counsel,
depending chiefly on their own agreements, in some cases more, in
some less. There may be rases in which it would be right to allow
a reasonable sum, but here the circumstances relating to the mutual
performance of the agreement and the conduct of the suit, are not
set forth on the record : and besides the question was on the admis-
sion of evidence of the moneys actually paid, and not on the pro-
priety of allowing a reasonable sum for expenses. We therefore
think this exception not sustained; and that upon the whole case
there is no error.
Judgment affirmed.



Stoebler against Knerr.

// '/ asifl i



An estate conveyed to a husband, for the joint benefit of himself and wife, without
words limiting a trust for the separate use of the wife, but excluding the husband
from power to sell, may be sold under execution as the estate of the husband.

ERROR to the common pleas of Dauphin county.

This was originally a proceeding before two justices of the peace,
by John Knerr against George Stoebler, to obtain possession of a
tract of land, purchased by him at sheriff's sale. The cause depended
upon the construction of a deed and article of agreement between
Michael Redel and George Weidel. The deed was in common
form, conveying the estate in fee to George Weidel, " subject, ne-
vertheless, to the true performance of certain clauses and conditions
contained in a certain instrument of writing, dated herewith, any
thing to the contrary in this deed in any wise notwithstanding;' 7
and the said agreement contained these provisions.

"Whereas the said Michael Redel, and Margaret his wife, by
indenture under their hands and seals, bearing even date herewith,
have conveyed unto the said George Weidel, a certain tract or piece
of land, situate in said township of Mifflin, containing twenty-seven
acres and nine perches, strict measure, and now in possession and
occupation of the said George Weidel, under and subject to the same
restriction and reservation hereafter mentioned, that is to say, the
said Michael Redel, for himself, his heirs, executors and adminis-
trators, doth hereby covenant, promise and agree to and with the



182 SUPREME COURT [Harrisburg

[Stoebler v. Knerr.]

said George Weidel, and his heirs by these presents, that he the
said George Weidel, shall and may during his coverture with Mary
his wife, the daughter of said Michael Redel, and after her decease
during his natural life, have, hold, occupy and keep the said premises
as their or either of their own property, or, in case of the decease of
the said George Weidel, then the said Mary to have, hold, occupy
and keep the said premises, as, and for her own property, during
her natural life, in all cases, without the least molestation, interrup-
tion or denial of the said Michael Redel, his heirs, executors and
administrators. And further, it is agreed by and between said
parties, that after the decease of the said George Weidel, and Mary
his wife, the heirs or children of the said George Weidel, and Mary
his wife, of her the said Mary begotten, shall inherit the before
mentioned and described premises, or their just and rightful inherit-
ance, without any other interruption of any person or persons what-
soever.

" And further, that the said George Weidel shall not have power
nor authority to sell or dispose of said premises, nor any part thereof,
without the voluntary consent and approbation of the said Mary his
wife ; but the same to be and remain whole and entire, during their
natural lives, as before mentioned."

The property was levied upon and sold by the sheriff, as the proper-
ty of George Weidel, and this was a proceeding to obtain possession
by the purchaser. The question was, whether Weidel had such an
estate as might be sold, and divest the interest of his wife during his
life.

The court below (Blythe, President) charged the jury that the
plaintiff was entitled to recover.

M'Cormick, for plaintiff in error, cited 3 Mk. 399; 1 P. Wms
125; 2 P. Wms 316; 4 Cruise's Dig. 252, pi. 67; 1 Madd. Chan.
470 ; Dennison v. Nigh, 2 Watts 90 ; Rogers v. Benson, 5 Johns.
Chan. 431; Jackson v. Cairus, 20 Johns. Rep. 301; Jaques v. Me-
thod. Episc. Church, 11 Johns. Rep. 548 ; 1 Cruise's Dig. 321 ; 2
Vern. 67.

Johnston, for defendant in error.

PER CURIAM. The intent of the donor was, to give the estate
jointly to his daughter and her husband, in special tail; but there
are no words to limit a trust for the separate use of the daughter: on
the contrary, the husband is expressly authorized to hold for their
joint benefit. The object was doubtless to provide for the daughter
and her issue ; but there are no words restrictive of marital rights.
The clause restrictive of the husband's rights to sell, has respect to
voluntary alienation, and not to alienation by process of law. If
more was intended, all that can be said is, that the donor was unfor-
tunate in his choice of a scrivener ; but that is not a cause to violate



May 1836.] OF PENNSYLVANIA. 183

[Stoebler v. Knerr.]

rules of construction, in order to give effect to what is, at best, but
obscurely intimated. The coverture continuing, therefore, the hus-
band's freehold in the whole, was a legitimate subject of execution.
Judgment affirmed.



Newbaker against Alricks.

An attorney at law, who conducts the proceeding in partition in the orphans' court
to a confirmation of sale of the land by the administrator, has no such lien or claim
upon the proceeds of such sale as will enable him to maintain an action against the
administrator, for compensation for his professional services, unless he were employed
by him, and entitled to recover upon a contract, or quantum meruit.

It is error if the court refer a matter of fact to the determination of a jury, of which
there was no evidence.

ERROR to the common pleas of Dauphin county.

This was an action on the case, by Herman Alricks and Benjamin
Parke, Esqrs., against Philip Newbaker, administrator of Jacob
Newbaker deceased, to recover compensation for professional ser-
vices, rendered in a proceeding in the orphans' court, in partition of
the real estate of Jacob Newbaker deceased. The evidence was,
that the plaintiffs, at the instance of some of the heirs of the de-
ceased, applied for, and obtained a writ of partition, and valuation
of the real estate, and the matter was proceeded in to an order of
sale, and a sale by the administrator, the defendant, which was con-
firmed, and that the proceeds were in the hands of the defendant.
The objection to the plaintiff's recovery was, that they had not been
employed by the defendant. The only evidence which tended to
show that the defendant had employed the plaintiffs was, that a
return to an order of sale, signed by the defendant, was in the hand-
writing of one of the plaintiffs, and another return to second order
was in the handwriting of the other plaintiff.

The defendant's counsel submitted the following points to the
court, upon which they were requested to charge the jury.

1. That the plaintiffs cannot, in law or equity, recover the fees
claimed from the estate of Jacob Newbaker, because there is no pri-
vity of contract between them and the estate, and because there
exists no statutory provision for the payment of attorneys' fees in
such cases.

2. That the defendant cannot be made personally liable to the
plaintiffs for these fees, because they have distinctly admitted that
he did not employ them or request, them to perform the services;
because he has personally derived no benefit from them ; because he
has made no promise to pay for them; because no consideration



184 SUPREME COURT [Harrisburg

[Newbaker v. Alricks.]

whatever has resulted to him upon which an assumpsit against
him personally can be founded.

3. That the plaintiffs, not being partners in the practice and pro-
fession of the law, cannot recover against the defendant in any cha-
racter, inasmuch as no express promise to pay them has been shown,
and inasmuch as they have shown no joint consideration from them
to the defendant, which is necessary to support an implied promise,
where the plaintiffs are not partners.

4. That the plaintiffs having declared for professional services
rendered by them to the defendant, and upon his retainer, cannot
recover in this suit, because no retainer of them by the defendant
has been proved, nor has any advantage resulted to the defendant
from said services, which will authorize the jury to imply or infer a
retainer.

5. That the plainliff cannot recover upon the first count in the
narr.j which is against the defendant as administrator, because there
is no law making the estate of decedent liable for these charges; nor
is he liable as administrator, for he is declared against personally ;
nor can they recover on the second count, for money had and re-
ceived, not having shown that defendant has received money, which,
by law, they are entitled to; nor can they recover on the third count,
because they rendered no services for defendant, at his request, nor
has he availed himself of any advantages from their services, which
are a consideration entitling them to recover against him personally,
as they must if at all on this count.

6. That the plaintiffs cannot, at law or in equity, recover against
the defendant, under the pleadings and testimony in this cause.

The court referred the facts to the jury, to determine whether the
plaintiffs had been employed by the defendant, with instructions to
find accordingly.

The j'.iry found for the plaintiffs.

JRawn, for plaintiff in error, cited Whitehill v. Wilson, 3 Penns.
Rep. 405; Stouffer v. Latshaw, 2 Watts 165; to show that the tes-
timony should not have been admitted, because it did not tend to
establish the plaintiffs' claim.

Parke, for defendants in error.

The opinion of the Court was delivered by

KENNEDY, J. The plaintiffs below seem to have entertained the
opinion that they had a claim upon the fund or money in the hands
of the defendant below, for their compensation on account of services
rendered in the line of their profession. In this, however, we think
that they were entirely mistaken. The clerk of the court, and the
sheriff of the county, in such cases, have certain specific fees allowed
by act of assembly for their respective services; and the administra-
tor of the intestate, making the sale in pursuance of the decree of the



May 1836.] OF PENNSYLVANIA. 185

[Newbaker v. Alricks.]

court, may, with great propriety, pay their fees, so provided for, out
of the moneys arising from the sale, because they are made charge-
able by the act of assembly, which authorizes the proceeding, to the
parties entitled to receive the money, and among whom it is to be dis-
tributed; but there are no fees, provided by any law, for attorneys at
law, or gentlemen of the bar, acting in such cases, and performing
the like services, for which fees or compensation is claimed here. It
is Only, therefore, in virtue of a contract made with the party, to
whom they look for compensation, or their having performed the
services at his special instance and request, that they can have a right
to recover from him. The mere fact of the plaintiffs below having
performed the services connected with the proceedings which led to
the sale of the land, and under which it was made, created no lien
whatever in their favour, upon the money arising therefrom, which
could entitle them to claim out of it remuneration for their services.
Unless, then, the evidence mentioned in the bills of exception tended
to prove that the defendant below had employed them to perform
the services charged for, or that he had derived a benefit from them,
and had promised to make the plaintiffs below compensation there-
for, it is clear that the evidence ought to have been rejected by the
court, as irrelevant, and not pertinent to the issue. But the evi-
dence, so far from showing that the services were performed at the
instance or request of the defendant below, or that he ever promised
them payment for the same, went to show, very distinctly, that
they were employed and retained by another person interested in
the estate, and that they did not even act in conformity to the wishes
of the defendant below, but rather in opposition to them, and that he
never could, with any probability, have promised them payment of
any compensation whatever for their services. The court below,
therefore, erred in admitting the evidence.

In regard to the instruction of the court to the jury after the evi-
dence was heard, we also think there was error, in leaving it, as, a
matter of dubious fact to the jury, to be decided by them, whether
the defendant below had employed the plaintiffs or not, and that if
he did, they might recover. This, we think, was wrong, because
there was really no evidence given in the cause, which tended, in
the slightest degree, to prove the affirmative of this question. Whe-



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