Mr. Justice Woodward
delivered the opinion of the court, October 16th 1876.
The original action between these parties was partition, which resulted in the allotment of the premises involved in it to the defendant. An application was then made for the allowance of the fees of the counsel for the plaintiffs for professional services in the action. An auditor was appointed on this application, and on the 81st of March 1875, he made a report fixing the sum for counsel fees to be taxed as costs in the case at $2500. On the 4th of September 1875, the report was confirmed by the Common Pleas. The plaintiffs appealed on the ground that the allowance was inadequate, the claim on their behalf having been $6000, and the defendant appealed on the ground that the allowance was excessive, claiming that “ the auditor should only have allowed such fee out of the estate as would compensate the attorneys for services rendered in the conduct of the proceedings had there been no contest.”
• The proceeding complained of was under the terms of the Act of the 27th of April 1864, in these words: “ The costs in all cases of partition in the Common Pleas or Orphans’ Court of this Commonwealth, with a reasonable allowance to the plaintiffs or petitioners of counsel fees, to be taxed by the court, or under its direction,' shall be paid by all the parties in proportion to their several interests.” There is no room for doubt as to what the legislature intended by this enactment. While in the ordinary course of practice, a partition was for the benefit of all the owners of the property divided, before the act the entire burden of the compensation of counsel for conducting the formal proceeding Avas throAvn upon the plaintiff in the Common Pleas or the petitioner in the Orphans’ Court. In every case professional aid was indispensable, and the purpose of the statute was ,to divide the cost of the employment of that aid amongst the parties equally benefited by the result of the proceedings." But it Avas indispensable aid only that was contemplated — such usual and accustomed service as the exigencies of each case should render necessary. The compensation of counsel for services in the trial of contested causes Avas not the end in vieAY. It would be a novel and anomalous feature in our legal system to have such compensation “taxed by the court.” It is a settled rule that a successful party cannot be alloAred even by a jury, in the extremest cases, for such expenses: Good v. Mylin, 8 Barr 51; Stopp v. Smith, 21 P. F. Smith 285. The act had relation to costs capable of calculation and ascertainment, and not to such fees as counsel and client are accustomed of themselves to adjust. In its very title, indeed, it was stated to be “relative to costs in cases of partition.” The services for the performance of which the statute was meant to provide Avere searches, formal motions, the preparation of papers and conveyancing — in a word, for such professional duties as would properly [30]*30enter into the bill of costs of an attorney under the English practice. Counsel fees in the ordinary sense — such as are paid to a barrister for a trial in court — were not in contemplation. The distinction is as well settled as any other in the law, and is as well recognised and understood here as if the profession were divided into classes as it is in England. “ Fees of attorneys are considerations allowed them as a recompense for their labor1 Lil. Abr. 598. “Action on the case lies for an attorney for his fees against him that retained him in his cause; and attorneys are not to be dismissed by their clients till their fees are paid1 Lil. Ent. 142. But a counsel can maintain no action for his fees, which are given not as a salary or hire, but as a mere gratuity, which a barrister cannot demand without doing wrong to his reputation: Davis 23. It was said by Bailey, J., in Morris v. Hunt, 1 Chitty 551, that “ the reason why counsel can maintain no action for their fees is, because their compensation is not made to depend on the event of the cause, and for the purpose of promoting the honor and integrity of the bar, it is expected that all their fees should be paid when their briefs, are delivered.” It is true that the rule is different in Pennsylvania, and that suit for counsel fees may be here maintained. But the' authorities quoted exhibit common law distinctions that are well recognised, and serve aptly to illustrate the legislative intent in the passage of the Act of 1864.
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 received. If counsel fees for conducting an expensive contest against him were to be allowed, he would be paying for hostility and attack, and not for aid. It would be straining the law to give it such a scope. ■ Legislative enactments are to be expounded as near to the use and reason of the prior law as may be, when ,this can be done without violation of its obvious meaning; for, say the cases, it is not to be presumed the legislature intended to make any innovation upon the common law further than the case absolutely required: Cadbury v. Duval, 10 Barr 265. Manifestly, this statute was not designed to shoulder upon defendants in partition the expenses incurred by a plaintiff in adversary litigation.
That this construction is accurate would seem clear from the language of the present Chief Justice in Snyder’s Appeal, 4 P. F. Smith 67. He said: “ The design of the law was to place parties upon an equality as to the expenses of effecting partition among them. Owing to minority, coverture and other causes, the proceeding in partition may be indispensable; and yet the party, no matter how small his interest, was 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, but it was [31]*31not designed to pay the fees of mere litigation, so that a litigant should saddle the cost of his litigation on others.”
Some embarrassment arises out of the mode in which this record has been brought up. It is doubtful whether the auditor’s report, which it is assumed sets forth the grounds on which the order of the court was made is legitimately the subject of review. Looking into the report, it is clear that the auditor allowed to the plaintiffs’ counsel fees in what he called “ the litigation of the defendant ”— that is, in the trial of the issues created by the interposition of a defence to the demand made by the plaintiffs for partition. Such an allowance is clearly beyond the scope of the statute and a departure from the construction given to it in Snyder’s Appeal. It is not necessary, however, to decide whether the opinion and reasons of the auditor can be reached or not. The record shows the allowance of counsel fees amounting to $2500. Apart from any grounds for the auditor’s decision disclosed by his report, the amount of the sum allowed affords adequate and conclusive proof in itself that the true meaning of the Act of 1864 was misapprehended. A case warranting the payment of so significant a sum for the services of counsel in conducting the mere formal proceedings in an action of partition, can hardly be conceived. At least clear affirmative evidence of facts to justify it would be required. There is no such evidence here.
Upon the argument objection was made on the part of the plaintiffs to the jurisdiction of this'court.
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Mr. Justice Woodward
delivered the opinion of the court, October 16th 1876.
The original action between these parties was partition, which resulted in the allotment of the premises involved in it to the defendant. An application was then made for the allowance of the fees of the counsel for the plaintiffs for professional services in the action. An auditor was appointed on this application, and on the 81st of March 1875, he made a report fixing the sum for counsel fees to be taxed as costs in the case at $2500. On the 4th of September 1875, the report was confirmed by the Common Pleas. The plaintiffs appealed on the ground that the allowance was inadequate, the claim on their behalf having been $6000, and the defendant appealed on the ground that the allowance was excessive, claiming that “ the auditor should only have allowed such fee out of the estate as would compensate the attorneys for services rendered in the conduct of the proceedings had there been no contest.”
• The proceeding complained of was under the terms of the Act of the 27th of April 1864, in these words: “ The costs in all cases of partition in the Common Pleas or Orphans’ Court of this Commonwealth, with a reasonable allowance to the plaintiffs or petitioners of counsel fees, to be taxed by the court, or under its direction,' shall be paid by all the parties in proportion to their several interests.” There is no room for doubt as to what the legislature intended by this enactment. While in the ordinary course of practice, a partition was for the benefit of all the owners of the property divided, before the act the entire burden of the compensation of counsel for conducting the formal proceeding Avas throAvn upon the plaintiff in the Common Pleas or the petitioner in the Orphans’ Court. In every case professional aid was indispensable, and the purpose of the statute was ,to divide the cost of the employment of that aid amongst the parties equally benefited by the result of the proceedings." But it Avas indispensable aid only that was contemplated — such usual and accustomed service as the exigencies of each case should render necessary. The compensation of counsel for services in the trial of contested causes Avas not the end in vieAY. It would be a novel and anomalous feature in our legal system to have such compensation “taxed by the court.” It is a settled rule that a successful party cannot be alloAred even by a jury, in the extremest cases, for such expenses: Good v. Mylin, 8 Barr 51; Stopp v. Smith, 21 P. F. Smith 285. The act had relation to costs capable of calculation and ascertainment, and not to such fees as counsel and client are accustomed of themselves to adjust. In its very title, indeed, it was stated to be “relative to costs in cases of partition.” The services for the performance of which the statute was meant to provide Avere searches, formal motions, the preparation of papers and conveyancing — in a word, for such professional duties as would properly [30]*30enter into the bill of costs of an attorney under the English practice. Counsel fees in the ordinary sense — such as are paid to a barrister for a trial in court — were not in contemplation. The distinction is as well settled as any other in the law, and is as well recognised and understood here as if the profession were divided into classes as it is in England. “ Fees of attorneys are considerations allowed them as a recompense for their labor1 Lil. Abr. 598. “Action on the case lies for an attorney for his fees against him that retained him in his cause; and attorneys are not to be dismissed by their clients till their fees are paid1 Lil. Ent. 142. But a counsel can maintain no action for his fees, which are given not as a salary or hire, but as a mere gratuity, which a barrister cannot demand without doing wrong to his reputation: Davis 23. It was said by Bailey, J., in Morris v. Hunt, 1 Chitty 551, that “ the reason why counsel can maintain no action for their fees is, because their compensation is not made to depend on the event of the cause, and for the purpose of promoting the honor and integrity of the bar, it is expected that all their fees should be paid when their briefs, are delivered.” It is true that the rule is different in Pennsylvania, and that suit for counsel fees may be here maintained. But the' authorities quoted exhibit common law distinctions that are well recognised, and serve aptly to illustrate the legislative intent in the passage of the Act of 1864.
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 received. If counsel fees for conducting an expensive contest against him were to be allowed, he would be paying for hostility and attack, and not for aid. It would be straining the law to give it such a scope. ■ Legislative enactments are to be expounded as near to the use and reason of the prior law as may be, when ,this can be done without violation of its obvious meaning; for, say the cases, it is not to be presumed the legislature intended to make any innovation upon the common law further than the case absolutely required: Cadbury v. Duval, 10 Barr 265. Manifestly, this statute was not designed to shoulder upon defendants in partition the expenses incurred by a plaintiff in adversary litigation.
That this construction is accurate would seem clear from the language of the present Chief Justice in Snyder’s Appeal, 4 P. F. Smith 67. He said: “ The design of the law was to place parties upon an equality as to the expenses of effecting partition among them. Owing to minority, coverture and other causes, the proceeding in partition may be indispensable; and yet the party, no matter how small his interest, was 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, but it was [31]*31not designed to pay the fees of mere litigation, so that a litigant should saddle the cost of his litigation on others.”
Some embarrassment arises out of the mode in which this record has been brought up. It is doubtful whether the auditor’s report, which it is assumed sets forth the grounds on which the order of the court was made is legitimately the subject of review. Looking into the report, it is clear that the auditor allowed to the plaintiffs’ counsel fees in what he called “ the litigation of the defendant ”— that is, in the trial of the issues created by the interposition of a defence to the demand made by the plaintiffs for partition. Such an allowance is clearly beyond the scope of the statute and a departure from the construction given to it in Snyder’s Appeal. It is not necessary, however, to decide whether the opinion and reasons of the auditor can be reached or not. The record shows the allowance of counsel fees amounting to $2500. Apart from any grounds for the auditor’s decision disclosed by his report, the amount of the sum allowed affords adequate and conclusive proof in itself that the true meaning of the Act of 1864 was misapprehended. A case warranting the payment of so significant a sum for the services of counsel in conducting the mere formal proceedings in an action of partition, can hardly be conceived. At least clear affirmative evidence of facts to justify it would be required. There is no such evidence here.
Upon the argument objection was made on the part of the plaintiffs to the jurisdiction of this'court. That the subject-matter of the controversy is open to review in a proper form, is regarded as free from doubt. The Common Pleas made an order in the nature of a definitive judgment for the payment of the fees of the counsel for the plaintiffs. To the extent of his interest in the land, the defendant was a party affected, and so far as it was erroneous he was a party aggrieved by the entry of this order. A writ of error lies in all cases in which a court of record has given a final judgment, or made an award in the nature of a judgment: Commonwealth v. Judges of Common Pleas, 3 Binn. 273. In this state, practice having made costs so far a matter of record as to enable the court to judge whether the items in the bill are such as the law allows, a writ of error will lie upon an execution for them; and the Supreme Court will inquire into the legality of the charges, though they will not take cognisance of an exception which depends on matter of fact: Barnet v. Ihrie, 1 Rawle 44. A multitude of authorities, such as Horner v. Harrington, 6 Watts 331, McMasters v. Rupp, 10 Harris 298, and King v. Boyles, 7 Casey 424, prove that when a legal principle has been involved, a judgment for costs entered by the Common Pleas, whatever the particular form of the proceeding may have been, has been held to be properly the subject of review.
Whether an appeal is the proper form for this review is a graver question. The 6th section of the Act of the 11th of March 1809, [32]*32does not give the option to a party of entering an appeal or taking out a writ of error, as the error below is on the record or dehors the record; but the law means that causes shall be removed according to the course of proceedings in the respective courts — an appeal from the Orphans’ and Register’s Court, and a writ of error to the Common Pleas and Quarter Sessions : McClemmons v. Graham, 3 Binn. 88; Commonwealth v. Haas, 7 P. F. Smith 443. An'appeal is the proper form of review of equitable remedies: Springer v. Springer, 7 Wright 518; Aurentz v. Porter, 12 Id. 335. Clear, therefore, as the rights of the defendant are believed to be, his appeal, as such, cannot be sustained. It is not the form in which the action of the Common Pleas can be reviewed, and it can only be dismissed.
But while the plaintiffs trusted simply to their appeal, a certiorari was issued on behalf of the defendant. This writ brings up the record. In a proper case, where the equity of the party who seeks relief is clearly made out, where no intervening adversary rights can be impaired, and where it affords the only means of averting an injustice, all the effect of a writ of error may be given to a certiorari. Thus, in Cooke v. Reinhart, 1 Rawle 317, while it was held that a writ of error, and not a certiorari, was the proper remedy for the correction of errors in the Common Pleas in a case brought into that court on a certiorari to remove the proceedings of two aldermen or justices of the peace under the Act of the 6th of April 1802, yet after the lapse of two terms, this court refused to quash a certiorari improvidently issued, and after argument reversed the judgment. Both parties appealed in this case, and its merits have been fully disclosed. Treating the certiorari as a writ of error, all embarrassment would be removed, for the report of the auditor would be brought directly into view. And this would be done if the justice of the case could be reached in no other way. A general dismissal now, to be followed by a fresh proceeding hereafter, would involve cost, inconvenience and delay that would be wasted in securing an end that may be at once attained. But such a course is not necessary, for the certiorari has brought up the record showing the nature of the application made on behalf of the plaintiffs, and the judgment in pursuance of it that was entered. As has been already stated, the amount of the judgment is evidence that all due and reasonable discretion was transcended by the Common Pleas, and it is a familiar principle that the possession of discretionary power does not justify its improvident and excessive use.
Both appeals are dismissed; and upon the certiorari issued on behalf of the defendant, it is ordered and • adjudged that the judgment of the Court of Common Pleas of the 4th of September 1875, fixing the counsel fees of plaintiffs to be taxed as costs at $2500, be reversed at the costs of the plaintiffs, and that a procedendo be awarded.