Kirk's Estate.

express the agreement of the parties made at the time of its execution. Parol evidence is admissible for this purpose. Is the evidence offered before the auditor sufficient to warrant a reformation of the instrument?

The evidence must be clear, precise and indubitable. The testimony must be given by two witnesses, or one witness corroborated by circumstances equivalent to another: Thomas & Sons vs. Loose, 114 Penna. St. R., 45; Phillips vs. Meily, 106 Id., 536.

We have on the one hand Edwin Kirk and his counsel; on the other side, Jacob Kirk and the writing itself. The corroborating circumstances are of little weight. It is claimed that there was but little endorsed paper existing at the time, and that it is unreasonable to suppose so large a judgment would be given to secure it. The evidence shows that something over six hundred dollars in notes of this character existed at the time, and the auditor finds that there were other notes offered; but the evidence is so indefinite that it is not clear when they were first given.

Mr. Bradfield, the counsel for Edwin Kirk, drew the paper after consultation with the parties. The paper was read, and then signed by Edwin Kirk and delivered to Jacob Kirk, who was not represented by counsel. Mr. Bradfield now appears before the auditor and presents claims which can not be allowed, unless his evidence. prevails. He must enlarge the agreement drawn by himself after consultation, and show that the instrument signed in his presence as containing the agreement of the parties is not what it purports to be, before he can recover.

Under all the facts and circumstances in this case we do not see how the two witnesses can overcome the writing and the sworn evidence of Jacob Kirk. In Thomas & Sons vs. Loose, supra, it is intimated that the two witnesses should be disinterested witnesses. But if we are in error as to this point, the exceptants can not succeed for the additional reason that the evidence relied upon is not of that clear, precise and indubitable character necessary to reform the agreement.

What was the mistake and who made it? Mr. Bradfield testifies to the agreement of the parties. He understood it, but he does not say that he failed to reduce it to writing. He says, "The paper was the result of the conversation that took place at the time when

Florey vs. Haverford College et al.

it was drawn." Again he says, "This agreement partially expresses the understanding between the parties."

The distribution by the auditor is approved. His conclusions are well sustained by abundant authority.

We see no objection to the distribution because made in part to a judgment creditor of Jacob Kirk. The money was received by the assignee under an agreement before the Sheriff that the assignee should hold it for the benefit of those entitled to receive it. Anthony Marjorum, the execution creditor of Jacob Kirk, was a party to this agreement. Edwin Kirk had no claim to the sum awarded to Mr. Marjorum. If Edwin Kirk had no title to the fund, his creditors had no standing, for they claimed through him. Jacob Kirk does not complain, for the distribution is made according to his direction. And now, June 3, 1889, the exceptions to the auditor's report are dismissed and the report is confirmed.

JAMES FLOREY VS. HAVERFORD COLLEGE ET AL.

A mechanics' lien regularly filed may be amended in any stage of the proceedings, when such amendment is conducive to justice and a fair trial.

The burden of showing that the materials were furnished on the credit of the contractor alone is on defendant. Hommel vs. Lewis, 8 Out., 465, followed.

MOTION to amend lien.

Henry Pleasants, Esq., for motion.

N. D. Tyson, Esq., contra.

The facts appear from the opinion of the court delivered June 3, 1889, by WEAND, J.

This lien was filed September 19, 1888, against a double stone house. More than six months thereafter it was discovered that it should have been described against the structure as two houses.

The claimant moves to amend his lien by adding the proper description and apportioning his claim, under the act of June 11, 1879, P. L. 122, which provides: "That in case of any mechanics' claim or lien filed according to existing laws, in any county of this commonwealth, the court having jurisdiction in such case is hereby au

National Bank vs. Fulmor.

thorized and required, in any stage of the proceedings, to permit amendments conducive to justice and a fair trial upon the merits," etc. We have here a lien regularly filed and something to amend by. It was a mistake arising from the peculiar construction of the building. We think that this is a case contemplated by the act as necessary to a fair trial upon the merits and conducive to justice. Its effect as against other creditors can not now be considered. The case of Knox vs. Hilty, 3 Crum., 430, 20 W. N. C., 524, does not apply. That was an attempt to introduce a new party after the expiration of the statutory period for filing a lien. Here we have only a proceeding to reform a lien filed in due time. This disposes of the exceptions to the lien except the fourth, which is ruled by Hommel vs. Lewis, 8 Out., 465.

And now, June 3, 1889, motion to strike off lien is overruled and motion to amend allowed by adding a proper description of the structure as two adjoining buildings, and apportioning the claim.

JENKINTOWN NATIONAL BANK VS. T. LLOYD FULMOR.

Where an issue is awarded to determine "what if anything is due upon a judgment," the defendant should pay no part of the costs of such issue if the jury sustains every allegation made by him.

Where the plaintiff holds another judgment against the same defendant, he may set off such costs as are payable to the defendant.

RULE on plaintiff to pay costs.

Larzelere & Gibson, Esqs., for rule.

B. E. Chain, Esq., contra.

The facts of the case appear in the opinion of the court delivered June 3, 1889, by SWARTZ, P. J.

The costs in this case as computed by the Prothonotary amount to $163.41. No objection is made by either party to the respective items in the bill of costs as taxed by the Prothonotary.

The plaintiff contends, first, that these costs should be paid by the defendant. The plaintiff held a judgment against the defendant. An issue was awarded to determine what if anything was still

National Bank vs. Fulmor.

due on the judgment. Every allegation made by the defendant was sustained by the verdict of the jury. The bank lost, and there is no reason given for charging the costs against the successful party. The plaintiff should pay them.

An analysis of the costs discloses the following items: On the execution issued before the rule was taken to set aside the judgment-to Prothonotary and crier $8.28; to Sheriff $10, total $18.28; on the issue awarded-attorney fee $3, Prothonotary $19.05, verdict fee $4, defendant's bill of costs $97.08, costs in Supreme Court $22, total $145.13.

The defendant can not collect the costs on the execution unless he advances them to the officers. These costs are still due to the officers, and are payable to them by the plaintiff. A receipt from the defendant would not protect the plaintiff in a suit by the officers: Ellsbre vs. Ellsbre, 28 Penna. St. R., 172; Beal vs. Commonwealth, 7 Watts, 186. The same is true of the Prothonotary's fees under the issue.

The attorney's fee of $3 can not be collected by the defendant. The fee belongs to the attorney, not to the client: Pontius vs. Commonwealth, 4 W. & S., 53.

The defendant paid the verdict fee and the costs in the Supreme Court. The officers received these fees from the defendant, and the plaintiff must now pay them to the defendant: Commonwealth vs. McCoy, 8 Watts, 153.

There is due, therefore, to defendant from plaintiff a verdict fee $4, Supreme Court costs $22, and defendant's bill for witness fees. $97.08, total $123.08. All other costs on the taxed bill are payable by the plaintiff to the officers, amounting to $40.33.

The plaintiff for further answer to the rule says that the bank holds a judgment against the defendant for $9,810, and that this sum was due by the defendant before any of the aforesaid costs accrued. Is the bank entitled to use this judgment as a set-off against the costs due?

We decided that the plaintiff must pay these costs. The defendant is therefore entitled to judgment for his costs, and the inquiry is resolved to the simple question whether one judgment may be set off against another.

Pratt et al. vs. Keith, Executrix.

It is well established that where both judgments are in the same right one may be set off against the other: Metzgar vs. Metzgar, 1 Rawle, 227; Ramsey's Appeal, 2 Watts, 228.

A judgment for costs may be set off against another judgment: Miles vs. Morse, 4 Law Times, 5; McWilliams vs. Hopkins, 1 Whar., 275. In the latter case the set-off was not allowed because the judgments were not in the same right; the principle contended for was recognized. See also Brightly on Costs, pages 302–304, where the doctrine of set-off as to costs against a judgment is supported by numerous authorities.

Because some of the costs paid by the defendant were advanced to him by others, can not alter the standing of the parties to the suit. They must look to the defendant as their debtor for the money loaned to him.

And now, June 3, 1889, it is ordered and decreed that the plaintiff pay the costs in the above entitled cause as taxed by the Prothonotary; and it is further ordered that upon the plaintiff paying the sum of $40.33 to the court officers as their fees remaining unpaid, and upon entering satisfaction of record for the sum of $123.08 on the judgment of $9,810 held against the defendant, entered April 29, 1884, he shall be released and discharged from all liability for the costs adjudged against him in said suit No. 141, October Term, 1886.

E. N. PRATT Et al. vs. HannAH KEITH, EXECUTRIX, ETC. W. leased a property covered by a mortgage, and converted the same into an opera-house, placing therein opera-chairs fastened to the floor. Held, in a contest between the purchaser under the mortgage and judgment creditors of W., that these chairs did not pass under a sale of the realty.

In determining what are removable fixtures, the criterion is the intention to annex, not the character of the physical annexation to the realty; and when from the character of the business it is apparent that the fixtures are introduced to carry it on, the law in favor of trade will presume an intention to remove rather than a presumption of a gift to the landlord.

CASE stated.

Childs & Evans, Esqs., for plaintiff.

N. D. Tyson, Esq., for defendant.

The facts appear from the opinion of the court delivered May 20, 1889, by WEAND, J.