[Goetter, Weil & Co. v. Head & Co.] Goetter, Weil & Co. v. Head & Co. Action against Partnership, on Promissory Note. 1. When sworn plea is necessary.-In an action against two or more persons as late partners, founded on a promissory note executed in the name of the partnership, the fact of partnership can not be controverted without a sworn plea (Code, §§ 3035-36), denying the execution of the note. APPEAL from the Circuit Court of Pike. Tried before the Hon. H. D. CLAYTON. This action was brought by Goetter, Weil & Co., suing as partners, against J. M. Head, Chabber Head, S. A. Williams, and DeKalb Williams, "late partners under the firm name and style of J. M. Head & Co.;" was founded on a promissory note for $134.16, signed by said J. M. Head & Co. in the partnership name, dated November 7th, 1878, and payable sixty days after date, to the order of Goetter, Weil & Co., at the banking-house of Josiah Morris & Co. in Montgomery; and was commenced on the 26th February, 1879. The judgment entry only states that, "by reason of the ruling of the court, the plaintiffs took a non-suit;" but the bill of exceptions recites that, "on the trial, the following proceedings were had: Defendants pleaded, in short by consent, along with the general issue, that no partnership existed between the defendants under the name of J. M. Head & Co.; but said plea was not sworn to. Plaintiffs demurred to said plea, in short by consent, and moved to strike it from the files, because it was not sworn to. The court overruled said demurrer, and refused to strike said plea from the files; holding that the existence of the partnership could be denied without a sworn plea, and that the burden, under the general issue, would be on the plaintiffs to establish the copartnership." The plaintiffs excepted to this ruling, and they now assign it as error. WM. H. PARKS, for appellants. M. N. CARLISLE, contra. STONE, J.-The Circuit Court erred in allowing the defense relied on in this case to be made, without a sworn plea denying the execution of the note.-Fowlkes v. Baldwin, 2 Ala. 705; Code of 1876, $$ 3035-6. Reversed and remanded. [Collins v. Louisville & Nashville R. R. Co.] Collins v. Louisville & Nashville Railroad Company. 1. Submission of Pending Cause to Arbitration. When appeal lies from award.-When a pending cause is submitted to arbitration (Code, § 3547), the award of the arbitrators can not be revised on writ of error or appeal, until it has been entered up as the judgment of the court, or until that court has rendered judgment setting aside the award; and an appeal lies from the judgment, not from the award. This case is brought up on a certificate of appeal granted by the clerk of the Circuit Court of Morgan, but the record does not show any judgment rendered by that court, and the certificate states that the appeal is taken from the award rendered by arbitrators, to whom was submitted a cause pending in that court. CLARK, WERT & WERT, for appellant. BRICKELL, C. J.-This appeal is prosecuted from the award of arbitrators, to whom the parties to a pending suit submitted the matters in controversy for decision. The record does not show that the award has been entered as the judgment of the court in which the suit was, and, so far as we are now informed, is yet pending. In the absence of a statute authorizing it, an appeal, writ of error, or other revisory remedy, will not lie to any court from the award of arbitrators. The award may be impeached and vacated, whenever the party in whose favor it is rendered relies upon, or seeks its enforcement, if fraud, partiality, or corruption can be imputed to the arbitrators; or if they transcend the submission; or if it is wanting in the elements of finality and conclusiveness, not determining the matters embraced in the submission. These are inquiries which can become the subject of contestation in the courts, only when the award is pleaded as the cause of action, or as matter of defense. The statute (Code of 1876, § 3547) authorizes the courts of primary jurisdiction to enter, under certain circumstances, the award of arbitrators, as the judgment or decree of the court, and implies and involves the power of the court to set aside the award; and, employing the language of the statute, "from the judgment or decree so entered up, or from the judgment set 70 533 98 311 [Grimball v. Cruse.] ting aside the award, an appeal shall lie, as in other cases." It is from the decree or judgment of the court, entering the award as its judgment, or setting the award aside, an appeal is given, and not from the award itself. Until the award is entered as the judgment of the Circuit Court, it does not dispose of the cause therein pending-it is not of injury to the appellant. The statute gives an appeal from that judgment, and not from the award. Until the judgment is entered, the award is merely matter which may or not become of injury to the party against whom it is rendered. The court is without jurisdiction of this appeal, and it must be dismissed. Grimball v. Cruse. Bill in Equity by Trustee, asking Instructions; Decretal 1. Allowance of counsel fees to trustee.-A trustee by appointment for a married woman, to whose property, on her death intestate, conflicting claims are asserted by her surviving husband, her administrator, and her brothers and sisters, may properly file a bill in equity, asking a judicial construction of the will creating the trust, and the directions of the court as to the proper persons to whom he shall deliver the property; but, in such suit, he is merely a stakeholder, of whom strict neutrality and indifference are required, not advocating or espousing the cause of any one of the claimants; and while he is entitled to an allowance for reasonable counsel fees, for services rendered in instituting and prosecuting such suit, this being a proper charge on the trust fund, his counsel can not represent the interest of any of the rival claimants, and charge the trustee or the trust estate on account of such additional services. 2. Compensation of trustee; when allowed for extra services.—The general management, preservation, and investment of the trust funds, and the making of reports and settlements, are among the ordinary duties of a trustee, for which he can not claim extra compensation; and there is no greater reason for increasing his compensation, because a particular investment has developed unusual profits, than there would be for diminishing it if the investment had proved unprofitable; but, if it becomes necessary for the trustee to file a bill in equity to settle the rights of different claimants of the trust property, and extra labor is thereby cast on him, he should have a reasonable allowance for such extra labor. 3. Apportionment of allowance for costs and compensation.—When the trust estate involved in the litigation consists of both real and personal property, the former descending to the heirs at law, and the latter devolving on the personal representative, whatever allowance is made to the trustee, for counsel fees and compensation, should be apportioned between the two funds, or kinds of property. 4. Attorney's fees for services rendered in litigation about trust estate; when chargeable against trust fund. The principle which governs in the case of a creditors' bill, or other bill of similar character, and which re [Grimball v. Cruse.] quires that all persons who come in and partake of the fruits of the litigation shall contribute to the costs and expenses, including reasonable counsel fees, has no application to a bill filed by a trustee, asking a judicial construction of the will creating the trust, and instructions as to the rights of the rival claimants; and there is no principle of law or equity, which authorizes the court, under such a bill, to charge either the trust funds, or the interest therein of any of the successful parties, with reasonable counsel fees for services rendered under a retainer by other parties having similar or identical interests. APPEAL from the Chancery Court of Madison. Heard before the Hon. N. S. GRAHAM. This is a branch of the case of Grimball v. Patton, reported in this volume. The original bill in the cause was filed on the 8th December, 1877, by Samuel R. Cruse, as trustee of the estate of Mrs. Kate Grimball, deceased, held by her under the provisions of the will of her deceased father, Dr. David Moore, against her surviving husband, John Grimball, who had taken out letters of administration on her estate in the proper court in New York city, where she died; and against John L. Rison, as administrator of her estate by appointment of the Probate Court of Madison, Samuel II. Moore and others, her surviving brothers and sisters, who claimed the property under the provisions of the will, Mrs. Grimball having died intestate, and without children. The object of the bill was to obtain a judicial construction of the testator's will, and instructions to the trustee as to the rights of the respective claimants of the property. The report of the case shows the principal matters in controversy between the parties, and the decision of this court as to their respective rights. The present appeal brings up for revision the rulings of chancellor under a decretal order made in January, 1881, after the opinion of this court on the former appeal was delivered, and relates to the allowance of compensation and counsel fees to the trustee, and of compensation to Humes & Gordon and Walker & Shelby, solicitors in the cause. On the coming in of the special register's report under this order, to which exceptions were reserved by several of the parties, the chancellor rendered a decree allowing Humes & Gordon, as solicitors of the trustee, the sum of $3,500; to Humes & Gordon and Walker & Shelby, $4,000, or $2,000 to each firm, "as reasonable compensation for their services as solicitors of all the parties defendants (except John Grimball);" and $6,000 to the trustee, as extra compensation for his services, in addition to his annual salary of $1,000. From this decree an appeal is now taken by Grimball and Samuel H. Moore. There is no assignment of errors on the transcript, as it has come to the hands of the reporter. D. P. LEWIS, and R. B. TUNTSTALL, for appellants.-1. The [Grimball v. Cruse.] chancellor erred in the allowance of $6,000 to the trustee, as extra compensation, or compensation for extra services. It is shown that the trustee accepted the position at an agreed annual salary of $1,000; that he has always charged himself with this amount as salary, in his accounts passed and approved by the court; and if he ever expressed any dissatisfaction with the amount, or complaimed of any extra labor devolved upon him, the record does not show it. An agreement for a stipulated compensation precludes a greater allowance.-2 White & Tudor's Lead. Cases in Equity, 4th Amer. ed., 599-600; 3 Porter, 124; 1 Johns. Ch. 529. The agreement was not terminated by the death of Mrs. Grimball; and if it were, it has been ratified and confirmed since her death, and the parties in interest having continued to act under it, it has become conclusive on them.-De Peyster v. Ferrers, 11 Paige, 13; Ross v. Hardin, 79 N. Y. 92; Huntingdon v. Claflin, 38 N. Y. 182. If the trustee was dissatisfied with his agreed compensation, he could at any time have resigned; and if he had expressed his dissatisfaction, the beneficiaries of the trust would have had an opportunity to agree to an increase, or to employ some other person. Besides, under the evidence adduced, $1,000 per annum was ample compensation. Nor were any extra services performed by the trustee.-Allen v. Martin, 36 Ala. 580; Holman v. Sims, 39 Ala. 712. Most of the investments were made by consent of the parties, and under the orders of the court; and if any of them have proved very profitable, as is claimed of the railroad bonds, it must be remembered that this is a very fluctuating investment, and the apparent profit of to-day may prove a loss to-morrow. If the trustee were held accountable for legal interest on the funds in his hands, and annual investments thereof, the fund would have accumulated at least as much as it appears to have done from the investments in bonds, &c. And the general principle applies in all such cases, "that care should be taken in fixing the amount [of compensation], that trusts of this character should not become money-making occupations."-Gould v. Hayes, 25 Ala. 432. 2. The chancellor erred, also, in the allowance of $3,500 to Humes & Gordon, as the solicitors of the complainant. It is shown that they filed the bill, at a stipulated fee of $500, as fixed by agreement between them and the trustee; and Cruse testifies as to this, "My understanding of the contract with them was, that they were bound to attend to the case through for the $500." It is shown, also, that in addition to the $500, they have received from the trustee over $2,400 in this case. An attorney or solicitor can not recover greater compensation than he agreed to receive, though his services were worth more; nor can he lawfully contract with his client, while the relation |