Taking up the third exception (supra), and Bedell v. McCormick, 23, W. N. C. we find the facts as follows: Upon judg-28, it was held that upon a warrant of ment No. 395, March term, 1915, an ex-attorney containing provision for payecution was issued and the land was sold ment of attorney's commissions, the by the sheriff on March 9, 1918, for plaintiff, being an attorney, can act as $3.800. The judgment itself on the day his own attorney in the collection of his of sale secured $3,500 debt, $80.50 inter-own judgment, and if after demand est, $175 attorney's commission and made and refusal to pay he collects the $182.50 costs, total $3.938, leaving a same by legal proceedings, he is entitled balance on that judgment not provided to attorney's commissions the same as for as the result of sale $138. This bal- if he had employed another attorney. ance with interest from March 9. 1918, The case before us is, however, stronger to June 28, 1919, the date of sale under than either of those cited, as here the No. 252, July term, 1918, ($10.76) right of the plaintiff to issue execution amounted to the aforesaid $148.76. If and proceed to sale was contested on the A. W. Betterly, the defendant in that ground that Warren A. Betterly, the judgment, had been the owner of the transferee of the title subject to the premises on June 28, 1918, when the mortgages, was absent in military serfund now under consideration was real-vice and therefore entitled to have the ized, there might have been some justi- sales postponed until his return. This fication for this distribution. The lien, involved a rather nice legal question. however, of No. 395, March term, 1915, Other objections to proceedings on the it is admitted, had never extended to the mortgage were also made that resulted land covered by the judgment out of in taking depositions, in postponing the which this fund was realized. This land disposition of the rules for stay nearly had been conveyed to Warren A. Better-one year, during which time the rules aply subject to the mortgage accompanying peared upon the argument list several the bond on which judgment No. 252, times, and in consequence of which the July term, 1918, was entered; but he did plaintiff actually employed another atnot take it subject to the debt repre- torney who participated in the taking of sented by judgment No. 395. March the depositions and appeared in court term. 1915, and there was neither law and protested plaintiff's interests by arnor equity in favor of that distribution. guments and otherwise. The exception must therefore be sustained. The attorney's commissions are objected to on several grounds: I. Because the plaintiff is himself the attorney and has therefore been put to no special expense for collection. Besides this it was clearly shown by depositions that although the judgment stood in the name of the plaintiff, the mortgages did not in fact secure money owing to him but to a client for whom he held the mortgages as trustee. In Perkins' App., 108 Pa. 314. it was 2. Because the judgment on the bond held that a trustee may claim compensawas entered after the conveyance to W. [tion for services of a personal character A. Betterly whereby the fund was sub-rendered by him to an estate in addition ject "to distribution to the mortgages on to those which ordinarily pertain to his the certified lists of liens," which had position as trustee, and that he is clearly not been put in judgment and therefore entitled to such reasonable compensation were liens only for principal and interest as he would have paid had he been and not for attorney's commissions. obliged to employ counsel. 3. The commissions have not been 2. The provision for the attorney's included in the judgment but are sepa- commission, whether in the bond or in rately taxed upon the record of the judg- the mortgage, produces an effective lien ment for which irregularity they are un- to the extent to which the court may suscollectible in this proceeding. tain the commissions not however to ex4. The commissions are excessive, ceed the maximum fixed in the docuwherefore the court should exercise its ments. Whether the mortgage was repower of reducing them. I. In Hook v.. Montgomery, 7 C. C. Rep. 268; Beale v. Green, 16 C. C. 607. duced to judgment or not is of no consequence; it contain the provision forin the one case, a five per cent., and in the other case, a ten per cent. commis- that amount the commission in No. 99, sion, and the conveyance to Warren was May term, 1918, should be reduced. subject to that provision which was just (Distribution restated accordingly, in as binding upon him as the covenant detail). for paying the principal and interest. Exceptions sustained as set out in the The distinction between the lien given body of the opinion and distribution by the mortgage and that by the confes-modified in accordance with said opinsion of judgment in the bond after entry, ion; the amended scheme of distribution does not seem to us tenable. to be entered upon the docket as part of Allegheny Co. Arnold v. Hachmeister 3. An examination of the docket en- this decree. try shows that the prothonotary was directed to enter judgment for the princi- C. P. of pal, interest and attorney's commission, and the entry was accordingly made although the attorney's commission was separately stated upon the margin and so appears upon the execution. In Schmidt and Friday's App., 82 Pa. 524, it was held that a judgment entered by the prothonotary in pursuance of the terms of a judgment note for real debt with costs of suit and attorney's commission and execution issued for real debt, interest and attorneys' commission of five per cent. separately endorsed on the back of the writ, the attorney's commission was held to be part of the judgment. The endorsement upon the writ while informal was not material and the commissions should therefore be paid out of the proceeds of the sale. V. To the same effect is Clarkson States, 13 C. C. 56, and Lemon v. Longabaugh, 4 C. C. Rep. 546. Pleading and practice-Rule for judgment-Parties plaintiff - Silent part ner. A rule for judgment for want of a sufficient affidavit of defense was discharged where only one of the parties plaintiff, doing business as a partnership, was disclosed by the statement of claim. All parties interested in an action on a contract should be named as a party plaintiff. Rule for judgment. Refused. Morse J. Keller, for plaintiff. Dunn & Moorhead, for defendant. December 11, 1920, Reid, J.-This is a rule for judgment for want of a sufficient affidavit of defense. 4. It is of course well understood One of the allegations in the affidavit that an attorney's commission is not nec-of defense is that— essarily payable to the full amount and "Defendants aver that the said conthat the courts have the power and the tract was not entered into with Joseph duty to limit the compensation provided Arnold alone, but with Joseph Arnold for in attorney's commissions to a rea- et al., he claiming to have a silent partsonable, adequate, but not excessive, fig-ner whose name he would not divulge, ure. If we were to deal only with the but who he claimed was his financial aid commissions in No. 99, May term, 1918, and who is not made a party to this suit." we would not, after taking into consid- Such averment is more than an ateration the delay and obstruction placed tempt to vary a written contract by pain the way of this collection, have rol; it is supported by the instrument itdeemed a ten per cent. commission upon self. An examination of the instrument the $2,000 mortgage as excessive; but sued on sustains defendants' position. It taking it in connection with the pro-is between "Dr. Joseph Arnold et al." of ceedings in No. 252, July term, 1918, the first part, and the defendants, parties which provided for a five per cent. at- of the second part. It is clear that if torney's commission, and bearing in there be another who is interested with mind that the entire litigation though in- plaintiff in the recovery of the contract volving both judgments was practically price, he should be named as a party. a single proceeding, we are of the opin- We have not considered the merits of ion that the uniform five per cent. attor- any other part of the affidavit of defense, ney's commission would be reasonable but discharge the rule for judgment for and that to the extent of the excess above the reason above stated. Q. S. of Commonwealth v. Ryan Statutes-Local law-Repeal of-Act of Carbon Co. for costs or for damages to which any The local Act of April 9th, 1868, P. L. 776. provided that all fines, &c., should be paid to the Carbon County Law Library. Held, that this act was not repealed by any of the acts regulating the practice of dentistry, and providing that fines imposed for violations of its provisions should be paid to the Pennsyl vania State Dental Society. Hearing by the court upon the dispo-provided: "That all fines collected shall sition of a fine. Amount awarded the inure to the poor fund of the county in Carbon County Law Library Committee. Benjamin Branch, District Attorney. J. C. Loose, F. P. Sharkey, E. M. Mulhearn, for the Carbon County Law Library. which the prosecution occurs." That act was amended by the act of April 20th, 1883, P. L. 129, and by the fourth section of that act the fines were to be paid to the county. That act contained the general repealing words, "All acts or parts of acts inconsistent herewith are N. M. Balliet, for the County of Car-hereby repealed." By the act of June bon. 10th, 1893, P. L. 441, the subject was further legislated upon, but this act conFebruary 26, 1921, Stewart, P. J., spe-tains no provision as to the application of cially presiding; Judge Barber being a the penalties. The whole subject was member of the Carbon County Law Li-again made the subject of legislation by brary. The defendant plead guilty to a the act of May 7th, 1907, P. L. 161. In charge of practicing dentistry without the eighth section it was provided as folbeing licensed by the State Board of Den-lows: "All fines recovered under this act tal Examiners. He was sentenced to pay from convictions resulting from infora fine of fifty dollars. The question now mation instituted at the instance of the before the court is whether this money Pennsylvania State Dental Society, shall belongs to the Law Library of Carbon be paid to the said Society." In the ninth County or to the Pennsylvania State section there was the general repealing Dental Society. By the Act of April clause quoted above. In 1915, by the act 9th, 1868, P. L. 776, it was enacted: of May 3d, P. L. 219, an amendment to "That all fines, amercements and penal- the last act was passed. It provided as ties imposed by the courts of Carbon follows: "All fines received under this county, and all recognizances declared act, from convictions resulting from inforfeited by said courts, which under the formation instituted at the instance of existing laws are not payable to the com- the Pennsylvania State Dental Society, monwealth of Pennsylvania for its own shall be paid to the said society." That use, are hereby directed to be paid to the amending act had no repealing clause. committee hereinafter named, for the es-The act of 1868, supra, is a special local tablishment and maintenance of a law li- law, confined in its operation, to Carbon brary, to be kept in the court house of county. Has any of the above acts resaid county, for the use of the court and pealed it? In Philadelphia v. Miller, 42 bar thereof: Provided, however, That Pa. Super. Ct., 471, Judge Beaver said: the provisions of this act shall not ex- "Calling to mind a few of the simple tend to any moneys which under existing canons of construction of statutes, sollaws are payable to the public school idly buttressed by abundant authority, fund, or funds for school purposes: And we have no difficulty in construing the provided further, That this act shall not acts herein referred to in entire harmony be construed to impair or affect any claim with each other and with the general scheme of legislation relating to this and the statutes before us. It is against reacognate subjects. The legislature is pre-son to suppose that the legislature in sumed to know the law and to be con- framing a general system for the state. sistent. A repealing clause, because of intended to repeal a special act which the repugnancy, has no greater effect than an local circumstances of one county had implied repeal because of repugnancy. made necessary." In Seifried v. ComTo justify a repeal, whether because of monwealth, 101 Pa. St., 200, the syllaa repealing clause or by implication on bus is: "A general affirmative statute. the ground of repugnancy, that repug- does not repeal a prior local one upon the nancy must be real and substantial and same subject, unless the repugnancy benot fanciful and visionary. Repeal by tween them be strong, or the inconsisimplication is not favored." In Common-tency irreconcilable." In Malloy et al. wealth ex rel. v. Brown, 210 Pa. St., 29, v. Commonwealth ex rel. Reinhard, 115 the syllabus is: "A local act is not re- Pa. St., 25, the syllabus is: "A local statpealed by a general act on the same sub-ute enacted for a particular municipality. ject, even with different or inconsistent for reasons satisfactory to the legislaprovisions; but this rule being founded ture, is intended to be exceptional and on a presumption of legislative intent for the benefits of such municipality, it will not apply when a contrary intent is is against reason to suppose that the legclearly apparent. Where the clear gen-islature in framing a general system for eral intent of the legislature is to estab- the state intended to repeal a special or lish a uniform and mandatory system, as local act which the local circumstances in the municipal classification acts, the made necessary. The legislature, not the presumption must be that the local acts courts, judge of the necessity." It is. are intended to be repealed.". Note the however, said that because the act of distinction as to municipal acts which is 1907, supra, section nine, provides, “All pointed out by Mr. Chief Justice Mitch-acts and parts of acts inconsistent with ell in the cases cited in his opinion. In the provisions of this act are hereby rethe leading case of Brown v. County pealed." that, therefore, the local act Commissioners, 21 Pa. St., 37, on page must fall. Those words are frequently 43, Mr. Chief Justice Black said: "That called in the cases, a general repealing the law does not favor repeals by impli- clause. Of themselves they do not recation, is a very old rule. Lord Coke peal a local statute. That has been desays, it has ever been confined to re- cided in many cases. In re Opening of pealing as little as possible of preceding Parkway, 249 Pa. St., 367, Mr. Justice statutes. (11 Rep. 63.) The principle Mestrezat, referring to the act of June prevails even where the statutes are 8th, 1907, P. L. 466, passed at the same penal, and where the humanity of the law session of the legislature as the act now would plead for another construction. under discussion, and containing iden(6 Rep. 19.) With much stronger rea- tically the same words, said on page 375: son it applies to statutes which give "Nor will the general repealing clause of powers to different persons. If the pow-the act of 1907 have that effect; it simply ers can subsist together, the grant of one repeals former acts inconsistent with or is not a withdrawal of the other. (15 repugnant to its own provisions and adds East 377.) These authorities have al- no repealing force to an affirmative ways been followed in Pennsylvania. statute: Hickory Tree Road, 43 Pa. 139. One act of Assembly is held to repeal 142." A number of cases might be cited another by implication only in cases of where local acts or particular statutes very strong repugnancy, (6 W. & S. were held not to be repealed where the 209.) or irreconcilable inconsistency. same clause was in the general act, such (10 Barr 442.)" Again he said: "Be-as Safe Deposit & Trust Co., Adm'r. v. sides all this, it seems to be well settled Fricke, 152 Pa. St. 231; Commonwealth that a general statute without negative v. Phila. & Erie R. R., 165 Pa. St., 252. words, cannot repeal a previous statute where it was said: "There are no rewhich is particular, even though the pro- pealing words in the act of 1879, of the visions of one be different from the act of 1852, and there is nothing but the other. (6 Rep. 19.) Precisely such are usual clause repealing laws or parts of plaintiff in this case has filed his statement, claiming to recover from the defendant the sum of $65.80, with legal interest thereon from July 29, 1920, being the amount due for merchandise sold and delivered by the plaintiff to the defendant at the latter's special order and request. laws inconsistent with the act;" then follow a number of cases to the same effect: Flemming v. Bush, 43 Pa. Super. Ct., 405, and Commonwealth v. Connell, 65 Pa. Super. Ct., 100. The syllabus of the last case is as follows: "A local act will not be repealed by a later general act where it appears that the local act was broader than the general act and conThe affidavit of defence does not deny tained regulations to which the later the purchase of the merchandise, but statute had no application." The opin- suggests that it is not of the character ions of President Judge King and Judge represented by plaintiff's salesman; he Porter of the Superior Court, are well claims that the merchandise was guaranworth reading, as they contain a refer-teed to be marketable and of first-class ence to all the law on the subject. That quality, and it was expressly represented the legislature was the best judge of the that the paint used on the trunks ordered necessity of giving fines, amercements was to be of good quality and so applied and penalties, &c., to the law library can- as to make the merchandise purchased not be doubted, and that the terms of the marketable; that the merchandise shipspecial act are broader than any of the ped was not marketable, but was wholly general acts above referred to cannot be valueless to the defendant; that the disputed. The legislature has the power merchandise purchased consisted to repeal the special act, but until it does trunks, the linings of which were to be of so by specific legislation, the local act good quality of linen, but the trunks as received were lined with a cheap quality of paper and were wholly valueless and unmarketable, and that the defendant is indebted to the plaintiff in no sum what must stand. And now, February 26th, 1921, it is hereby ordered, adjudged and decreed that the fine of fifty dollars ($50.00) imposed on the above defendant, be paid to the Carbon County Law Library Committee. C. P. of Lercher v. Levin ever. of It does not appear from the affidavit of defence that the defendant offered to return the trunks or did return them, or Dauphin Co. that the defendant was compelled to sell them at a loss, and how much that loss was. In the absence of such averment, we are forced to conclude that the defendant at least still retains the merch Practice Act of 1915-Sufficiency of af- andise purchased, even if he has not al ready sold the same. There is an attempt made on the part of the defendant to set forth a warranty, but a warranty cannot be presumed; the affidavit of defence must disclose whether it was express or implied, set forth its terms, and state when, by whom and by what authority it was made. In the absence of an averment that the defendant rescinded, or offered to rescind, the contract within a reasonable time after the merchandise purchased was delivered, and in the absence of a concise statement in the affidavit of defence as to the nature of the warranty, we do not think that the affidavit of defence is sufficient; we regard it as fatally defective and as furnishing no basis whatever for assessing the damages suf |