as is given for wages by the Act of 1872, the | libel "with costs," yet it does not award costs to case becomes assimilated to that of real estate, respondent, nor direct who shall pay the same. and in cases of dispute the Court will send the Costs do not necessarily follow the entry of a defund to an auditor, to report on the law and cree. 'here must be an express order for costs. the facts. But where there is no reason to supChan. Prac. (Perkins's 1st Am. ed.) 1516 (N). Conable v. Bucklin, 2 Aik. 221. pose that any question can be raised, it is a useless delay and expense that will not be imposed on the parties.

Ꭰ

Travis v. Waters, 12 Johns. 500.

If any one is liable for costs it is the libellant's The mortgage in the present case having been next friend, and the writ should have been, in made more than six months before the sale, it is the first instance, directed against him. Where a clear that its priority of lien is not divested by fact of marriage being undisputed), the husband wife is unsuccessful in obtaining a divorce (the any claim for wages earned within the statutory cannot proceed for costs against her individually. period. The fourth section of the Act of 1872, The law therefore requires the intervention of a expressly saves the lien of the mortgage in such next friend, who may be held responsible to the cases. The mortgage prima facie covered all the property sold, and we see no reason to sup-under circumstances analogous to the present, husband in such a case. And the rulings of courts, pose that there is any question which could be raised before an auditor.

Rule discharged.

Oral opinion by MITCHELL, J.

[See Marble Co. v. Burke, 5 WEEKLY NOTES, 124; Kochenderfer v. Fiegel, Id. 404; Weis v. Weis, 3 Id. 76; Snow v. Hyman, 2 Id. 352.]

seem to establish that the next friend, and not the wife, is in all cases primarily liable for costs. In some States it has been adjudged that the next friend must always be worth at least a certain sum over and above his debts. If the next friend be insolvent, the husband may have proceedings stayed until security be given, or a responsible party be substituted. Likewise Courts will not permit the substitution of another next friend, after the cause has proceeded, unless security is entered, as well for the costs already accrued as for those still to accrue. And when the next Divorce Liability of unsuccessful libellant for friend dies the libellant must procure another in costs Where the libel of the wife is dismissed a reasonable time, or the libel will be dismissed. "with costs," she and not her next friend is responsible in the first instance for the costsAmendment of writ of execution.

C. P. No. I.

Brinckle v. Brinckle.

Rule to set aside fi. fa. for costs.

Sept. 21, 1878.

Libel for divorce, a mensa et thoro, instituted in the name of Angelique Brincklé by her next friend, etc.

On July 6th, 1878, the following decree was entered: "And it is further ordered and decreed that the libel be dismissed, with costs.' On August 5th, 1878, a fi. fa. issued against "Angelique D'henier, calling herself Angelique Brincklé, for costs as per decree." Whereupon the present rule was taken.

Katz and Ferriere, for the rule.

The writ is irregular and should be set aside, because it does not follow the decree. The libel was filed in the name of Angelique Brincklé, and the decree is against her in that name. The name of Angelique D'henier nowhere appears on the record. If the libellant be liable for costs under this decree, her property is available under whatever name it may be held.

Stuckert v. Ellis, 2 Miles, 433.
Black, v. Wistar, 4 Dall. 267.
Brinckle v. Brincklé, 32 Leg. Int. 134; S. C., I
WEEKLY NOTES, 372.

The form of the decree does not authorize the issuing of a writ of execution for costs against any one. Although the decree dismissed the

Lawrence v. Lawrence, 3 Paige Chan. 267.
Halpen v. Halpen, Bunb. 310.

Barlee v. Barlee, I S. & S. 100.

Lindmuth v. Lindmuth, 3 Leg. Opin. 242.
Divorce cases are in the nature of suits in chan-
cery, and the practice is similar, except so far as
it has been changed by statute.

Toone v. Toone, 31 Leg. Int. 397.
Richmond v. Richmond, 10 Yerg. 343.

must be a responsible party, and he alone is an-
In chancery, the next friend of a feme covert

swerable for the costs.

Dan. Chan. Prac. (Perkins's 1st Am. ed.) 144. Nor does the verdict of the jury establishing the fact that the libellant was not married to defendant affect the primary liability of her next friend for costs. The law has declared this to be an incident to the position he has assumed as a legal party to the record.

F. E. and F. C. Brewster, contra.

The property levied on is in the name of Angelique D'henier. There is no dispute as to the identity of the owner and the libellant, and it does not matter to her that the writ does not follow the decree; the judgment is against her and not against her name.

The decree dismissed the libel "with costs;' and the respondent's right to issue execution for his costs necessarily follows from that decree.

It is inequitable to make the next friend liable in the first instance. The libellant is the real

The facts alleged in the special pleas could be proved under the short pleas and the notice which has been given thereunder; therefore the evil which the above rule is intended to remedy, viz. unnecessary multiplication of pleas, is preRule on defendant to enter security for dam-sented in the special pleas now objected to. ages and costs, which plaintiff may recover in his action of ejectment.

June 13, 1836, §§ 79 and 85 (Purd. Dig. 55, pl. privilege of pleading more than one plea, subject, however, to the discretion of the Court, which 1; and 56, pl. 9), viz.:— Act is in force in Pennsylvania.

where notice must be ioined with the single plea, | issue. The general issue, if there be such in an to let in the proofs.

The statute of amendments should not be construed to repeal the statute of Anne. The Court certainly have the right to say, we will not be so controlled as to permit the cumbering of the record by a multitude of useless pleas, whether they amount to the general issue or not.

J. J. Doran and S. Dickson, contra.

There is no case in Pennsylvania which holds that a special plea by way of confession and avoidance will be stricken off, although or because the matter might be given in evidence under the short pleas with notice. These special pleas do not amount, in effect, to the general |

Orphans' Court.

October 21, 1878.

tra.

McKinney v. Reader, 7 Watts, 123.
Negley v. Morgan, 10 Wr. 284.
Borland's Appeal, 16 Sm. 470.

Woodward (with whom was M' Grath), con

C. A. V. November 2, 1878. THE COURT. The liaWiley's Estate. bility of an assignee of a lease depends wholly Assignment by parol of instrument under seal-upon privity of estate, and ceases if he assigns Liability of assignee of a lease-Statute of to another. It is very different from that of the Frauds.

Sur exceptions to adjudication.

The following facts appeared at the adjudication of the account of the executor of John H. Wiley, deceased.

original lessee, which, being created by contract, continues for the entire term, notwithstanding he may, with the assent of the lessor, have assigned his interest, and for this reason his surety is also held responsible, under the same circumstances. (Frank v. Maguire, 6 Wright, 77.) But the liability of a surety never can exceed that of the principal, and when the latter ends the former ends with it.

In the case before us the decedent became surety, not for the lessee, but for Graver and Ritsey, who were mere assignees, and the rent was regularly paid during their joint occupancy. Ritsey assigned his interest to a brother of Graver, who paid him $1500 for it, and entered and retained possession, the lessor recognizing his tenancy, and giving receipts for rent to Graver & Brother, instead of, as formerly, to Graver and Ritsey. Graver & Brother paid the rent for ten years, when the brother assigned to Graver, who thereafter became in arrear, and for this it is now sought to hold the estate of the decedent, under his contract of suretyship.

We think it clear that the claim could not be sustained against Ritsey, and that it must fail against his surety,

John Carnahan, surviving executor of Jane Watson, deceased, presented a claim before the Auditing Judge of $795, against the said estate, for arrears of rent of premises, at Southeast corner of Tenth and Sansom Streets, which was founded upon an agreement under seal, dated April 24, 1875, whereby the decedent became surety to Jane Watson for the payment of the rent mentioned in a lease from William Watson, lessor, to David Giltinan, dated March 28, 1870, for three years and five months from March 25, 1870, at a rental of $1400 per annum, payable in monthly instalments, and at the expiration thereof for a further period of five years, at the rent of $1500 per annum, payable monthly. This agreement recited that the lessee (Giltinan) had assigned his interest to John H. Wiley, who in turn had assigned to Charles Graver and David Ritsey, for whom Wiley became surety. David Ritsey, in the month of May, 1875, agreed verbally to sell his interest in the lease to Stephen Graver for $1500. Mr. Walker, the co-executor, with Mr. Carnahan, It is true that the agreement was for the acts of and who was also agent of the property, promised both assignees, and that one only of them asto draw up an assignment to Graver, but he died signed his interest; but the surety had the right before doing so, and no assignment was ever to look to both for indemnity, and the discharge drawn up. However, Stephen Graver took pos- of one is so material a change of the original session under the agreement, paid the purchase-contract as to release the surety also. money, and continued in possession up to July That notice of the change of tenancy was 1, 1877, when he sold out to his brother, Charles given to the surety is not material, in the abGraver, who became sole lessee of the premises. After the sale by Ritsey, Mr. Walker gave the receipts in the name of Graver Brothers, and after his death Mr. Carnahan, the surviving executor, gave the receipts in a similar manner. June, 1877, Mr. Carnahan agreed with Charles Graver, in consideration of the agreement of the latter to go out on thirty days' notice, to reduce the rent $25 per month thereafter. The Auditing Judge allowed the whole claim, and to this ruling exceptions were filed by the accountant.

sence of proof that he agreed to remain bound in spite of it, or unless he has done some act which estops him from making defence. But the evidence shows nothing of the kind. In It is true that the Statute of Frauds requires an assignment of a lease to be in writing, irrespective of the duration of the term; but this cannot apply where the contract has been fully executed by the payment of the consideration on the one side, and the delivery and retention of possession for over ten years on the other. The lessor, who has recognized its validity, which the parties themselves have never questioned, cannot now set up the statute as against Ritsey, and still less as against his surety.

Barger and Gross, for the exceptant. If the assignments were made by parol they are void by the Statute of Frauds.

Act of March 21, 1772, Purd. Dig. 724, pl. 2. As to the effect of the transactions on the transfer of Ritsey's interest to Stephen Graver

see

The first exception must therefore be sustained, and the adjudication modified accordingly. Opinion by PENRose, J.

WEEKLY NOTES OF CASES.

VOL. VI.] THURSDAY, NOV. 28, 1878.

Supreme Court.

May, '78, 148.

Durborrow's Appeal.

Musser v. Durborrow.

[No. 16.

book. In his statement and opinion he said, inter alia: "The items in the bill of costs for drawing the demurrer, answer and interrogatories, are stricken out because there is no rule of this Court, and no rule among the equity rules of the Supreme Court, allowing it. And further, it is the opinion of the prothonotary, on examination of the authorities and old equity fee-bill cited, that the right of the defendant to costs for drawing his demurrer, if it ever existed under May 29, 1878. the practice in this county, has been abrogated by the adoption of the new rules in equity practice of May 27, 1865. Prior to adoption of these rules, as I understand it, the pleadings were filed in writing, and the party was allowed his costs for drawing them; but now the answer, etc., are required by the new rules to be printed, and the party is to be allowed his costs for printing, instead of drawing answer, etc. If this view of the case is correct, he would not be allowed for both printing and drawing his papers. Rule No. 14, mentioned, allows the cost of printing, and, therefore, costs taxed for drawing are stricken off.

Equity practice-Fees and costs-Practice in counties other than Philadelphia-Equity feebill, adopted in 1844, in Philadelphia County

Not extended to other counties in the State.

The equity fee-bill, adopted in 1844 by the Supreme Court at Nisi Prius, and the Court of Common Pleas of Philadelphia County, has never been extended by any law to the other parts of the State.

The Act of Feb. 14, 1857, which extended to the Courts of Common Pleas throughout the State the "same chancery powers and jurisdictions" then vested in the Common Pleas of Philadelphia County, did not carry the rules of equity practice adopted by the latter Court, but vested in each court the power to make rules.

The equity rules adopted in 1865 by the Supreme Court

govern in the several courts of the State.

The several Courts of Common Pleas have express power, under the Act of May 4, 1864, to establish for their respective courts a tariff of fees and costs in equity cases.

Appeal from the Common Pleas of Huntingdon County.

The following were the material facts:— On a former appeal in this case the Supreme Court reversed the decree of the Court below, and directed: "The costs, including those collected upon the writ of assistance, to be paid by the appellee." (See Durborrow's Appeal, 4 WEEKLY NOTES, 569.) After the record had been remitted, the appellant, Durborrow, who was defendant below, filed the following bill of costs, which was taxed, and allowed by the prothonotary.

109 00 $194 06

"The item of $109 for paper-book is not allowed. No rule or authority under which it could be allowed was brought to the attention of the prothonotary, and it was principally claimed by defendant's counsel, before prothonotary, as an item allowable, not under any rule or authority, but in the discretion of the Court, which discretion the prothonotary does not think he has the right to exercise."

Durborrow having appealed to the Common Pleas from the decision of the prothonotary, the Court (DEAN, P. J.) dismissed the appeal, and confirmed the taxation. Whereupon he took this appeal, assigning for error the above action of the Court.

R. Bruce Petrikin (with whom was Geo. B. Orlady), for appellant.

66

Under the Act of June 16, 1836 (P. L. 10), costs in equity were wholly within the discretion of the Court. The Act of July 26, 1842 (Purd. Dig. 592, pl. 9) provided that the Court of Nisi Prius should make and establish a tariff of fees and costs in equity cases, and all other cases in said Court, for services not provided for by existing Acts of Assembly." In pursuance thereof the Supreme Court, and the Court of Common Pleas of Philadelphia County, appointed a committee of the bar to report an equity fee-bill; and subsequently, in or about the year 1844, adopted the fee-bill reported by them.

See Brightly's Equity Jur. 735.

Exceptions being filed thereto by Musser, the Walker's Court Rules, 147 (ed. Phila. 1853). prothonotary, upon a retaxation of the bill, This fee-bill allows, inter alia: "Party's costs.. allowed the items for printing demurrer, answer -For drawing bill, answer, or other pleading, and interrogatories, and disallowed the items for demurrer, exceptions, interrogatories, and any drawing" the same, and for printing paper-decree or order of the Court, for every page of

VOL. VI.-14