WILLARD

'V.

SERPELL.

625

WILLARD v. SERPELL et at (Circuit Court, W. D. Pennsylvania. July 2, 1894.) No.lL
TAXATION OF COSTS IN

The Pennsylvania statute which provides that in the taxation or costs In all cases of partition there shall be included a reasonable allowance to the plaintiff for counsel fees, as expounded by the supreme court of the state, will be followed by the circuit court of the United States.

STATE PRACTICE.

lams & Brock, for complainant. Shiras & Dickey, for defendants. ACHESON, Circuit Judge. This is a motion to include in the taxation of costs "a reasonable allowance to the plaintiff" for counsel fees to be paid (out of the appraised valuation) by all the parties in proportion to their several interests, agreeably to the Pennsylvania act of 27th April, 1864, "relative to costs in cases of partition." In Snyder's Appeal, 54 Pa. St. 67, 70, it was declared: "The design of the law was to place the parties upon an equality as to the expenses of effecting partition among them." The court further said: "Owing to minority, coverture, and other causes, the proceeding in partition may be indispensable; and yet, the party, no matter how small his interest, may be compelled to pay attorney's fees for conducting them to a conclusion as beneficial to others as to himself. The law was intended to remedy this injustice." In Grubb's Appeal, 82 Pa. St. 23, 29, 30, it was said: "In proceedings in partition a common benefit is secured to all the parties. The natural and obvious object of the statute was to enforce a contribution from each, proportioned to his share of the common service rendered to them all. Each of the parties would thus pay for the aid he had reo ceived." There the court laid down the rule of allowance as this: "The services for the performance of which the statute was meant to provide were searches, formal motions, the preparatiop of papers and conveyancing; in a word, for such professional duties as would properly enter into a bill of costs of an attorney under the English practice." To the like effect are the views of the court as expressed in Fidelity Ins., etc., Co.'s Appeal, 108 Pa. St. 339.1 The statute, as thus expounded, adopts a principle analogous to that sanctioned by the supreme court of the United States in Trustees v. Greenough, 105 U. S. 527, and Railroad Co. v. Pettus, 113 U. S. 116, 5 Sup. Ct. 387, where it was held that one jointly interested with others in a common frind, who recovers it for the general benefit, or maintains a suit to save it, and secures its proper application, is entitled in equity to the allowance of costs as between solicitor and client, including reasonable counsel fees. In equity the costs of the commission and of making out the title in partition have always been divided among the parties in proportion to the value of their respective interests. Adams, Eq. 389; Cannon v. Johnson, L. R. 11 Eq. 90. As the Pennsylvania act establishes a just rule applicable to proceedings
11 At!. 233.

v.62E.no./j·-40

FEDERAL

vol. 62.

for partition in all the . cqurts of the !!!tllte, I tPlnk it should be followed by this court, within the limits 'of allowance for counsel fees indicated by the decisions above cited. Motion granted, the amount of the allowance to be fixed by the court.

PORTER v. DA.VIDSON, Sheriff. (Circuit Court, North Carolina. August 4, 1894.)

w.n.

1.

CONFLICTING S1'ATE AND FEDERAL JURISDICTION TAKING PROPER1'Y FROM SHERIFF'S POSSESSION.

CLAIM AND DEMVERY-

Property in possession of a sheriff under process issued by a state court taken out of his possession in au action of claim and delivery In'the federal court. .
. ..'

2.

SAMin-.:.cPAMAGES.

But' the 'Rction of claim and delivery In the federal court may be maintained 'by; a third perS(1nin so far as it seeks to recover damages against sb.eriff for the wrongful· taking.

Tllls was an actioriof claim and delivery by Henry K. Porter againstS. W. Davidson,' .Jr., sheriff of Oherokee county, N. C. Defendant ,moved to set aside the service of summons, and to dismiss the complaint. ' , ' J. W..8;, R. L. Cooper,.for motion. Martin, contra. Before SIMONTON, Circuit Judge, and DICK, District Judge. PER· CURIAM. This is a motion to set aside the service of a summons,rand to dismiss the complaint upon thegronnd that the record discloses a want of jurisdiction in this court. The plaintiff is moHgagee of certain chattels in' the possession of George Porter & ,(30., the mortgagors, after condition broken. The defendant, the'l'lheriff of Chetokee county of North Carolina, had seiied and held ,the chalttels under warrants of attachment issued out of the courts of NorthCa.rolina against the mortgagors, the causes ,of action being debts alleged to be due by the mortgagors to the attaching creditors respectively. Pending the'suits in which the attachments were issued, the present plaintiff mortgagee brought his action of claim and delivery in this court,:setting forth the :fact that he is the owner of the chattels, and entitled to the posSession thereof. Thereupon, pursuing the praotice in North Caro'lina, he executed the proper undertaking, and the marsh8.1 of this :court took the chattels from the possession of the defendant sheriff, 'l1nd delivered them to the, plaintiff. The defendant has ftledhis answer, denying that plaintiff is the owner of the chattels, and settingup the fact that he is in possession of said chattels,under divers warrants of attachment issuing out of proper courts in NorthCaroUna, .said chattels being the·. property of George Porter & Co., the defendants in the said suits in which the attachments were issued. The question is, can thisS1lit of claim and delivery be maintained against the sheriff under these circumstances? It is well to keep in mind the precise question before us. The plaintiff chUms