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hiring by the year, the right of action to recover would accrue at the end of each year, and the statute of limitations would run from the end of each year.

For plaintiff in error, Messrs. George A. Jenks, John Gilpin, G. C. Orr, George W. Guthrie and J. P. Colter.

After remarking that the plaintiff claimed to recover the value of services for a period of twenty-five years, the court instructed the jury that if he was entitled to recover at all it was for the whole services as a whole, and that the defendants could not take advantage of the statute of limitations because it had not been

Contra, Messrs. Richard H. Johnston and specially pleaded. Had the principle which David Barclay.

determined the case of Horbach v. Huey, supra, been heeded, in absence of evidence that Brown

Opinion by TRUNKEY, J. Filed December had contracted with Golden to pay him the 30, 1882.

One of the members of a partnership, to whom the others have transferred their interest in the partnership property and claims, cannot sue and recover a debt which was owing to the firm in his own name: Horbach v. Huey, 4 Watts, 455. Therefore, when a person brings suit for the value of his services rendered to the defendant, he cannot join and recover in such suit a debt owing to a partnership, of which he was a member, for similar services, although the debt was transferred to him before commencement of the suit.

In this action E. S. Golden is plaintiff, and the only statement of his claim is, that he seeks "to recover for professional services and counsel rendered by him to James E. Brown about his business generally and disbursements therein for a number of years prior to his death." And the answer of the defendants is, that they "are uninformed as to the correctness and legality of such claim, and deny the same." In the agreement for entry of the suit the parties stipulated that the "suit shall be deemed to be depending in like manner as if the said defendants had appeared to a summons." The claim was indefinite, stating no amount of demand, nor date of beginning or end of services. It is neither a declaration nor a statement under the Act of 1806. Prior to the Act of March 14, 1872, P. L., 25, probably the verdict could not have been sustained. That act provides that no verdict shall be set aside for want of a declaration or plea, but the court may at any time direct the filing of a declaration and the entering of a plea which shall make the pleadings and record conform to what was tried before the jury and found by the verdict. A declaration conforming to what was tried would show a claim for services rendered the late James E. Brown by E. S. Golden individually, by Golden & Neale, and by Golden & Patton, together covering a period of twenty-five years. The case must be disposed of as if such declaration had been filed and the pleas entered, under which the defense set up at the trial would have been heard and considered.

debts owing by Brown to Golden & Neale and Golden & Patton, the plaintiff would hardly have claimed to recover said debts in this suit. He cannot join debts which he cannot sue for in his own name with one which he could.

As no declaration had been filed, ground had not been laid for a plea. The record shows no claim for a debt barred by the statute of limitations; hence, there was no reason for specially pleading it. It was well said by the learned judge of the Common Pleas that "the law aims at the settling of men's disputes unencumbered with technicalities." But if the plaintiff set up a claim for services extending over a quarter of a century, the defendants shall have the benefit of a statute of repose and quiet to defeat stale claims against dead men's estates as living men could have when they have lost the evidence of settlement or payment. When parties go to trial without pleadings, this act is not a waiver of a statutory defense to a claim as proved. Such defense is not technical, is not merely formal, it is legally meritorious. Otherwise, this old statute ought to be repealed. It was the duty of the court to hear any competent evidence to rebut that adduced by the plaintiff, and to affirm the legal proposition requested by the defendant, to which they would have been entitled had the cause been put at issue by proper pleadings. If, by reason of surprise, the plaintiff was likely to suffer, he could have taken a nonsuit; and the court has power, when justice demands, to withdraw a juror and continue the cause..

The statute of limitations does not begin to run against the claim of an attorney for professional services so long as the debt which he seeks to recover for his client remains unpaid: Foster v. Jack, 4 Watts, 334. It runs against such claim as soon as the services are finished, and the relation of attorney in a litigated case will not prevent the claim for services generally from being barred by the statute, though it may for services rendered in and during the progress of a particular case. "Services rendered in any stage of the conduct of a single suit may well be regarded as rendered in pursuance of the same

contract; but advice or services at different statute. Corporations and many natural pertimes, and respecting various matters, cannot.' When an attorney advises or renders services respecting some matters of business, it does not prevent the statute from running against his claim for other finished services: Hale v. Ard, 48 Pa. St., 22. The doctrine of that case accords with Lichty v. Hughs, 55 Id., 434, for Hughs' claim was for services in a single suit.

When the firm of Golden & Neale was constituted, and the relationship of attorney and client between them and Brown began, Golden | had a right of action against Brown for his prior individual services. It is a familiar principle that the statute begins to run when the right of action is complete. That the statute began to run against the individual claim of Golden when the services of the firm commenced, and that it began to run against a debt owing to Golden & Neale, March 31, 1871, is too clear for doubt.

sons employ attorneys to advise and counsel in all their business. For such services the attorney is entitled to payment, when there is no express contract, within a reasonable time; this is implied, and a reasonable time would not exceed a year. The statute bars the claim of an attorney as it does the claims of other persons, when his services may be measured in a similar way as the services of others. It does not begin to run against his claim for conducting a suit until the end of his services in that case; nor would it against his claim for other special services until it was finished. And if any other person be employed to do a specific thing, and a long time elapses in the doing of it, the statute does not begin to run against his claim until the work is completed. An attorney may recover for advice and counsel rendered to the defendant upon the implied contract; so may a man who keeps books, superintends a mill, or does other business for another, and there is no reason why one should be expected out of the operation of the statute by judicial authority, when all alike are within its provisions. The first, third and fourth assignments of error are sustained.

That portion of the charge which is the subject of the third assignment, undoubtedly was, and ought to have been understood by the jury as an instruction that defendant could not have the benefit of the statute of limitations because it had not been pleaded. It follows that the answer to the defendant's fourth, fifth and sixth points was at once an affirmance of the propositions, and an instruction that they should not be applied in the determination of the case. So far as those points are consistent with the principles herein before stated, they should have been affirmed without such instruction.

For services in a large number of suits, and for some other services, the plaintiff was paid in full. He gave receipts, particularly specifying the service, the last bearing date July 9, 1880. In some instances he sent his account with request for immediate settlement; the last is dated June 24, 1878. These receipts tend to show that the parties contemplated prompt payment for any particular services, and should be considered with other evidence respecting the demand in this suit. The plaintiff avers that he "had been the general and legal adviser of Mr. Brown for over twenty-five years; that his employment was not limited nor affected by lapse of time, nor obstructed by the commencement or ending of years." There was no evidence of an express agreement. Mr. Brown's business was large and varied and intricate, and the plaintiff was his trusted legal adviser and counselor. Although the plaintiff disclaims an implied hiring by the year, his witness, called to prove the value of his services, estimated that value by the year. It was quite natural they should. When men are employed without an express contract, and continue in service for a long time, it is commonly understood that the hiring is by the year, unless the circumstances indicate a less period. None would infer, from the fact that an agent, or book-keeper, or sales-charge in districts having similar rules, for the man, had continued in the services of his employer half a lifetime, that he had no right to demand and sue for past services until the end of his employment. In case of such long continued services the statute would bar a claim for all outside six years immediately before commencement of the action, unless there was evidence to take it out of the operation of the

The plaintiff, defendant in error, urged that the first four assignments ought not to be considered, because an exception to the general charge is not allowed by the rules of court in the county of Armstrong. In fact, the court sealed a bill of exceptions to the charge, and this places it in the bill of exceptions, and we are bound to consider the alleged errors. It is frequent that judges seal a bill to the whole

judges are generally willing to aid counsel in their efforts to have a review of any supposed error. And if they were not, counsel would soon avail the statute and bring the whole charge into the record in every case, to the end that it may be reviewed without exception being noted or sealed.

James Mosgrove's letter to Neale, and Wil

1882, to the date of the distribution by the auditor. The auditor allowed the claim. Exceptions were taken to this allowance, which were sustained by the court below (FUTHEY, P. J.,) and the report recommitted to the auditor for

This appeal was taken to the final decree of the court.

For appellant, Wm. M. Hayes, Esq.
Contra, A. P. Reid, Esq.

liam Pollock's, entering into the recognizance, evidence that the writ of error was taken out by their authority. They have not discontinued the suit, nor is their certificate, dated October 31, 1882, a motion to quash the writ of error; but is one of the many things in the proceed-correction. ings showing the difficulties in their position. On one hand they are bound to faithfully perform their duties as administrators of the estate; on the other, as is manifest, they believe the plaintiff's demand is just. As the widow and legatees or heirs protested against acquiescence in the result of the trial and urged that a writ of error be purchased, it was at least prudent to comply with their request. A judgment obtained against administrators, in some circumstances, will not protect them in suffering the judgment to stand and paying it out of moneys of the estate. We are of opinion that there is no cause for quashing the writ. Judgment reversed and venire facias de novo sold the real estate for the payment of debts and awarded. legacies.

YEATMAN'S APPEAL.

Where the real estate of a solvent decedent is sold by
order of court for the payment of debts, interest on
liens does not stop at the date of confirmation of the
sale, but when the money is paid to the debtor.
Per GORDON, J.-If the estate were insolvent, the interest
would cease at the date of the confirmation of the sale.
Ramsey's Appeal, 4 W., 71; Brownsville Bank's Appeal,
15 Norris, 347, and Curlisle Bank v. Barnett, 3 W. & S.,
248, discussed and applied.

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Opinion by GORDON, J. Filed February 26, 1883.

The appellant held the bond of Carlton J. Passmore, the testator, for the sum of $5,000, which was secured by a mortgage on certain of the real estate of the obligor. Some time after the death of Carlton J. Passmore, his executor and legatee, Wills Passmore, acting under the authority of an order of the Orphans' Court,

This sale was confirmed December 12, 1881, Iand on the 8th of May, 1882, the executor paid over to Yeatman the full amount of the principal of his bond, but refused to pay the interest accruing between those dates. Before the auditor, who was appointed to make distribution of the money raised from the sale above mentioned, the appellant presented a claim for this interest, $128.90, and had it allowed. To this allowance an exception was taken, which was sustained in the court below, on the ground that the in

Appeal from the decree of the Orphans' Court terest on the bond ceased at the time of the conof Chester county.

Carlton J. Passmore died testate, seized of certain real estate which was sold, on the application of the executor, who was also a legatee, by order of the court, to pay debts. The purchaser was also a legatee. The personal property was sufficient to pay all the debts except a mortgage of $5,000 which was a lien on the real estate sold. The sale was confirmed December 11, 1881. On May 8, 1882, the executor paid the appellant the amount of his mortgage with interest to the date of the confirmation of the sale. A deed to the purchaser was made about April 1, 1882, when the purchase money was to be paid. The account of the executor showed a considerable balance, after payment of all debts, which was payable to legatees under the following provision of the will: "I leave to William's boys all of my property, to be divided between them, share and share alike * * * after all my debts are paid." The appellant presented the bond accompanying this mortgage before the auditor on distribution (John H. Brinton, Esq.,) and claimed interest thereon from December 11,

firmation of the executor's sale. Had the estate of Passmore been insolvent, the doctrine assumed by the court below would have been unexceptionable, for, in that event it would have had the support of all the authorities from Ramsey's Appeal, 4 W., 71, down to the case of the Brownsville Bank, 15 Norris, 347. But Passmore's estate was entirely solvent and the sale was not made on motion of the mortgagee, but upon the motion of the executor and for the purpose of the settlement of the estate. Under these circumstances we cannot understand why the appellant was not entitled to his whole claim, debt and interest. There is a very good reason why a defendant, as in Strohecker v. Farmers' Bank, 6 Watts, 96, should not be charged with interest after the return day of an executor levied upon his property, for the creditor has thereby paid himself by a sale of his debtor's goods or lands, and the money thus made is then in the hands of the sheriff who occupies the position of a trustee or bailiff for the plaintiff. If, however, as is admitted in the case cited, the defendant, by his interference,

delays the payment of the money to the plaintiff, he is chargeable with the accruing interest. So, as in Ramsey's Appeal, 4 W., 71, where the lands of an insolvent estate are sold for the payment of debts, there is also a good reason why the interest upon those debts should stop upon the confirmation of the sale, for the fund then belongs to the creditors, and they are entitled to distribution as of that time; hence, there is no fund left for the payment of subsequently accruing interest. But even this rule, as we find by the Brownsville Bank case, above cited, has its exception, for it was there ruled that when the fund continues to draw interest after the date of the confirmation of the sale, the creditor is entitled to his proportionate share thereof. Nor is the case of the Carlisle Bank v. Barnett, 3 W. & S., 248, without force as authority in the question before us. There Barnett was compelled to pay the accruing interest on the obligation, in which he was surety, though by a previous decree of the court there had been awarded to the bank the full amount of its claim from a fund raised upon a collateral judgment. But, as was said by Mr. Justice SERGEANT in that case, this appropriation would have been payment had it been immediately available, but as it was locked up in court, and was not immediately available, there was no payment until the money came into the possession of the bank; hence the liability of the parties to the original obligation continued.

estate which he represented; hence there is no reason why the appellant should not have had full payment of his claim, debt and interest.

The decree of the court below, so far as it sustains the exception to the auditor's report awarding to the appellant the sum of $128.90, the amount of interest due on his bond after December 12, 1882, is now reversed and set aside at the cost of the appellee, and the auditor's report, as to that amount, is now restored and confirmed.

LYON v. KURTZ.

The findings of fact by a referee under the Act of May 14, 1874, are conclusive, and cannot be reviewed by the Supreme Court upon writ of error.

As to payments on account the general rule is that the law will appropriate in the manner most beneficial to the creditor, to an unsecured or partially secured account rather than to one fully secured, and if there be no such difference, then to the earliest open items of the account.

Where A. made his promissory note to the order of B., who indorsed it, and it was then placed by A. in the hands of C. for negotiation, and C. forwarded it before maturity to D., in Philadelphia, with whom he had a running account, and C. afterwards became insolvent. Held, that (in the absence of notice of outstanding equities between A. and C.) D. could maintain an action upon the note against B., the indorser, to recover a balance due from C., upon the running account.

Error to the Court of Common Pleas, No. 2, of Allegheny county.

1874.

The referee in his opinion says, inter alia: The making, indorsement and protest of the note at maturity are not controverted; the question in the case is whether plaintiff is a bona fide holder.

This was an action by W. W. Kurtz, doing The same language may well be applied to business as W. W. Kurtz & Co., against William the case in hand. By the executor's sale, there M. Lyon upon a promissory note for $5,000, was more than enough money raised to have dated March 12, 1874, payable four months after satisfied Yeatman's lien, and, had it been im- date, made by James B. Lyon & Co. to the order mediately applied to the payment of that lien, of William M. Lyon, and by him indorsed. By there would have been an end to all controversy. agreement of counsel the cause was submitted But it was not so applied; the appellant had to to the decision of George W. Guthrie, Esq., await the motion of the executor, and so it hap-under the Act of Assembly approved May 14, pened that the claim remained unpaid until some six months after the confirmation of the sale. On what principle, then, is Yeatman to be made to forfeit a substantial part of his bond? Or how can his debt be said to have been paid before he got the money for it? It is true this was an official sale, and by it the lien of the mortgage was extinguished, but what of that? It did not extinguish the debt secured by the mortgage; that remained until it was paid, so that, in effect, the sale had no more significance than if it had been made under a power in the will. It was made for the settlement of a solvent estate; the money went to the executor, and it was only through him that Yeatman could receive it. The delay was caused by no act of the appellant, nor by a judicial necessity, but by the executor and for the convenience of the

On March 13, 1874, the note in suit was received by plaintiff from Hill & Co.; at the close of the business that day, Hill & Co.'s account was overdrawn $4,506.77. Between that date and April 2, 1874, the plaintiff advanced to them at various dates, $5,375.42, and Hill & Co. paid on account of their indebtedness to him $3,800.21, leaving a balance due on that day of $6,073.98, which was subsequently reduced by payments on account to $2,623.04, no part of which has ever been paid.

The evidence shows that the note in suit was

indorsed by William M. Lyon, for the accoinmodation of James B. Lyon & Co.; that the latter delivered it to George B. Hill & Co. to be sold for them, and that they have received only $1,000 on account of it, which sum was advanced by George B. Hill and Co. when the note was delivered to them.

Clearly this would be a good defense to a suit on the note for all except the sum of $1,000 so advanced, with interest, unless the plaintiff is a bona fide holder of the same.

After the receipt of the note, the plaintiff, as already stated, advanced to George B. Hill & Co. $5,375.42, and the evidence shows that these advances were made on the faith of the securities left with him by the said George B. Hill & ❘ Co., including the note in suit, and that he would not have made these advances but for these securities.

It is true that after the receipt of the note, George B. Hill & Co. paid plaintiff more money than he advanced, but these were general payments on account, without any appropriation being made by either party; in such cases, the general rule is that the law will appropriate in the manner most beneficial to the creditor, to an unsecured or partially secured account, rather than to one fully secured, and if there be no such difference, then to the earliest open items of the account. On both grounds, the payments made by George B. Hill & Co., after the delivery of the note in suit, should be appropriated to the advances made before, for the plaintiff holds no security of any value for those advances, and they are the earliest open items in the account; and the surplus only to the reduction of the advances made after the receipt of the note. The plaintiff, therefore, is a holder for value to the extent of the balance of the advances so made.

The note is in the form of an ordinary negotiable note; there is nothing on its face to excite suspicion, and the plaintiff received it before maturity and paid value for it.

The burden is therefore on the defendant to make out his defense; this, in the opinion of the referee, he has failed to do.

Defendant's counsel requested the referee to find, as matter of fact, from the evidence, inter alia, (5) That Kurtz & Co. were aware that these notes, including the one in suit, were the property of James B. Lyon & Co., and not the property of George B. Hill & Co. Answer.— This point is refused.

Defendant's counsel also requested the referee to find, as matter of law, (1) That Kurtz & Co. had no right to appropriate said note or its proceeds to the account of George B. Hill. Answer.-Refused.

2. If the referee refuses to find as requested in the previous point, then the referee is requested to find that Kurtz & Co. can only recover on said note the amount shown to have been paid by Hill to J. B. Lyon on partial account thereof, viz., $1,000. Answer.-Refused.

The findings of the referee were as follows: 1. That the note in suit was indorsed by Wm. M. Lyon for the accommodation of James B. Lyon & Co.

2. That said note was delivered by said James B. Lyon & Co. to George B. Hill & Co., bankers and brokers, doing a business in the city of Pittsburgh, for the purpose of procuring the same to be discounted for them, and that they received from said George B. Hill & Co., on account of said note, the sum of $1,000, and no

more.

3. That said George B. Hill & Co. sent said note to W. W. Kurtz, the plaintiff, a banker and broker, in the city of Philadelphia, doing business under the firm name of W. W. Kurtz & Co., for sale and credit for account of said George B. Hill & Co.

4. That the plaintiff received said note from George B. Hill & Co. for sale and credit as aforesaid, in good faith, in the ordinary course of business and without notice that they were not the owners thereof, and on the faith of said note and before its maturity, made advances to said George B. Hill & Co., of which there still remains due and unpaid the sum of $2,623.04, which advances were also made in good faith and without notice as aforesaid.

And the referee finds, as matter of law, that

said plaintiff is entitled to retain said note for the balance of the advances made by him on

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