(108 A.)

death of Mrs. Isett, and acted throughout in delivered instrument. Trough's Estate, 75 good faith. Pa. 115; Pringle v. Pringle, 59 Pa. 281.

After this bill was filed plaintiff brought an action of assumpsit against Mrs. Isett's administrator upon the note, wherein Miss Maclay was permitted to intervene as a defendant. The trial of that case resulted in a verdict in favor of plaintiff for the amount of the note and interest, upon which judgment was later entered against the administrator alone. Before that judgment was entered the record of the case was offered in evidence at this trial for the purpose of identifying the note and to show that its lien had been kept alive, and later the judgment entered therein was also offered in evidence; but there was no claim made in the court below that the judgment entered against the administrator was res judicata of the present case or any branch of it.

The trial court, on a finding of the facts somewhat more at large than above stated, coupled with the conclusion that plaintiff was not a creditor of Mrs. Isett in 1914, when she deeded the farm to defendant, entered a final decree dismissing the bill, from which plaintiff brought this appeal.

Under

[4] As the note was not delivered in the lifetime of the maker, it was not effective as a gift. Clapper v. Frederick, 199 Pa. 609, 49 Atl. 218; Scott v. Lauman, 104 Pa. 593.

The only claim of indebtedness averred in the bill is the $3,500 evidenced by the note. and there is no suggestion of a claim for work done or money advanced. Aside from that, the court below rightly found such claim was not sustained by the evidence. Neither the extent or value of the work done nor the amount of money advanced is shown, so there is nothing upon which to base a recovery; and, as plaintiff stood in place of a son and made no request for payment during a period of 20 years, the trial court properly found that the relation of debter and creditor Iwas not intended.

[5-6] The claim that the judgment against the administrator is res judicata here cannot prevail. It was not raised in the lower court, and therefore will not be considered on appeal. Weiskircher v. Connelly, 256 Pa. 387, 100 Atl. 965; Achenbach v. Stoddard, 253 Pa. 338, 98 Atl. 604; Kistler v. Fidelity Mutual Life Insurance Co., 66 Pa. Super Ct. 273. No such claim is or could have been made in the original bill, nor is it brought upon the record by amendment, and relief in equity must conform to the case made by the pleadings as well as to the proofs. Spangler Brewing Co. v. McHenry, 242 Pa. 522, 89 Atl. 665; Frey v. Stipp, 224 Pa. 390, 73 Atl. 460; Luther v. Luther, 216 Pa. 1, 64 Atl. 868. The other record was properly admitted to show a continuance of the lien of plaintiff's claim, but beyond that was not relevant under the pleading. Plaintiff, having judgment against the administrator, could properly have tested the title to the land in question by a sheriff's sale and ejectment (Hyde v. Baker, 212 Pa. 224, 61 Atl. 823, 108 Am. St. Rep. 865); but, as the bill was rightly dismissed on other grounds, and the question of equity jurisdiction is not raised, we express no opinion thereon.

[1-3] We find no reversible error. the Statute of Elizabeth a conveyance of land as here to secure future maintenance is void as to existing creditors (Houseman v. Crossman et al., 177 Pa. 453, 35 Atl. 736; Heath v. Page, 63 Pa. 108, 121, 3 Am. Rep. 533; Sanders v. Wagonseller, 19 Pa. 248; Chisolm v. Moore, 49 Pa. Super. Ct. 132; Downing v. Gault, 8 Pa. Super. Ct. 52), but otherwise valid (Hennon v. McClane, 88 Pa. 219; Preston v. Jones, 50 Pa. 54). So the real question here is Was plaintiff a creditor of Mrs. Isett in February, 1914? She was not indebted to him upon the note, for he had no knowledge of its existence, and, so far as appears, it was then in her possession and under her control, so she might lawfully have destroyed it. Until actual or constructive delivery a note does not create the relation of debtor and creditor. See McKown's Estate (No. 2), 198 Pa. 102, 47 Atl. 1113; also Negotiable Instruments Act May 16, 1901 (P. L. 197 [3 Stewart's Purdon, p. 3259]). Even the seal does not import a consideration upon an un- appellant.

The appeal is dismissed at the costs of

(265 Pa. 304)

the case without consulting and without conLAPLACCA et al. v. PHILADELPHIA RAP-sent of appellant, who thereupon filed his ID TRANSIT CO. (WERNICK, Intervener).

(Supreme Court of Pennsylvania.

1919.)

1. STATUTES 81-CLASSIFICATION FOR REGULATION OF RIGHTS AND DUTIES OF PROFES

SIONS PROPER.

petition in the court in which the action was brought, pursuant to the act of May 6, 1915 June 21, (P. L. 261), known as the Attorneys' Lien Act, and procured an order from the court for the payment by defendant to him of the sum of $35 for services rendered in the case. On appeal by defendant the Superior Court reversed the order, and upon application au For certain purposes, such as the regula- appeal was allowed to this court. The sintion of their rights and duties, members of par-gle question for our determination is the conticular trades, professions, or occupations may be properly classified, if grouped on a basis stitutionality of the act of 1915. for classification which is reasonable and propSection 1 of the statute in question proer and founded upon a real, and not merely vides: an artificial, distinction between members of that class and the general public, and upon the necessity springing from manifest peculiarities clearly distinguishing those of one class from each of the other classes, and imperatively demanding legislation for each class separately that would be useless and detrimental to the

others.

2. STATUTES 85(1)-LAW CREATING ATTORNEY'S LIEN INVALID AS SPECIAL LEGISLATION.

"That from the commencement of any action or proceeding, either at law, in equity, or otherwise howsoever, or the filing of any counterclaim or any pleading, the attorney who appears of record for a party therein shall have a lien for his compensation for his services upon his client's cause of action, claim, or counterclaim, which shall attach to any award, order, report, decision, compromise, settlement, verdict, or judgment in the client's favor, and the proceeds thereof in whosoever hands they may come; and the said lien shall not be affected or defeated by any compromise or settlement between the parties before or after

Attorney's Lien Act May 6, 1915 (P. L. 261) §§ 1 and 2, giving attorneys of record in legal proceedings a lien on any verdict, judgment, or settlement in favor of client, wheth-judgment: Provided, however, that nothing hereer or not proceeds come to attorney's hands, provides a new method for collection of what was previously merely a debt owing to attorney by client, and is special legislation creating a lien and providing for collection of a debt by only part of a larger class in violation of Const. art. 3, § 7, forbidding any special law creating or extending liens or changing methods for collection of debts.

Appeal from Superior Court.

Action by Petro Laplacca and another against the Philadelphia Rapid Transit Company, with intervention by Abraham Wernick, plaintiff's attorney, under the Attorney's Lien Act, for an order directing defendant's payment of $35 to the attorney for services rendered in the case, on which the municipal court of Philadelphia made an order directing payment, and from a judgment of the Superior Court (68 Pa. Super. Ct. 208) reversing such order, intervener appeals. Affirmed. Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING, and SIMPSON, JJ.

B. D. Oliensis, Abraham Wernick, and Thomas James Meagher, all of Philadelphia, for appellant.

in contained shall prevent the bona fide compromise or settlement of litigation by the parties thereto, subject to the lien of the attorney as provided by this act." Section 2 further provides that "the court in which the cause is brought shall, on the petition of the client or of the attorney, have jurisdiction to determine and enforce the lien."

This act creates a new right in favor of attorneys of record in legal proceedings. Previous to its passage the lien of attorneys for the payment for services was limited to documents or money in their possession belonging to clients in connection with the proceedings in which the services were rendered. McKelvy's Appeal, 108 Pa. 615; Quakertown & Eastern R. R. v. Guarantors' L. Indemnity Co., 209 Pa. 121, 58 Atl. 277; Seybert v. Salem Township, 22 Pa. Super. Ct. 459. That the lien might attach it was necessary the subject-matter should come into actual possession of the attorney. The act in question extends the right of lien to any award, compromise, or verdict in favor of the client "in whosoever hands they may come," regardless of whether the proceeds were at any time in the hands of the attorney. It also confers upon the court in which the action is pending,

Russell Duane and Harry S. Ambler, Jr., on application of the party aggrieved, jurisboth of Philadelphia, for appellee.

diction to "determine and enforce" the lien. We thus have an enactment radically differFRAZER, J. Appellant, an attorney, ent from any law existing before the date of brought suit on behalf of plaintiffs against its passage, providing a remedy different defendant to recover damages for personal from common-law or statutory remedies in injury sustained by one of the plaintiffs. force at that time, or at the time of the adopSubsequently plaintiffs and defendant settled tion of the present Constitution. From a

(108 A.)

mere statement of the provisions of the act [who labor for their daily bread. No adequate it is apparent a lien is created where none reason appears for placing an attorney of recpreviously existed and a new method is pro- ord in a favored class, not only as against vided for the collection of what theretofore persons in other professions or occupations, was merely a debt owing by the client to the but also against other members of his proattorney (Thompson v. Boyle, 85 Pa. 477; fession who render services, but do not apSeybert v. Township, supra,) within the mean-pear of record in a court proceeding, and proing of article 3, § 7, of the Constitution, for- vide him with a special means of collecting bidding the passage of any local or special his debt different from a method heretofore law authorizing "the creation, extension or known to the law. He has a right, the same impairing of liens * * or providing or as a physician, or person in another profeschanging methods for the collection of debts." sion, or occupation or business, to sue and All legislation, however, relating to the cre- recover for his services. Although an attorating of liens, or providing new methods for ney is also an officer of the court, and a law the collection of debts, is not prohibited by regulating his duties as such would be conthe Constitution, but only such as comes with- sidered proper classification, this fact furin the definition of local or special laws. nishes no valid reason for conferring special The act in question applies generally to the benefits upon him in the way of providing a entire state; hence is not local. We must lien for services rendered his client or a therefore determine whether its provisions new method of collecting compensation for are special within the meaning of the word as his services. Classification for this purpose is used in the Constitution. The answer to this as unwarrantable as classification of sheriffs question must, in turn, depend upon whether and prothonotaries, with respect to the cola statute affecting only lawyers and extend-lection of their fees. Strine v. Foltz, 113 Pa. ing to them rights and privileges in the col- 349, 6 Atl. 206. lection of their fees, not accorded to members of other professions, contains a proper classification.

[1] It may be conceded that for certain purposes, such, for example, as regulation of their rights and duties, members of particular trades, professions, or occupations, may be properly classified. Wheeler v. Phila., 77 Pa. 338, 349; Garrett v. Turner, 235 Pa. 383, 84 Atl. 354; 12 Corpus Juris, 1136, 1137. Such grouping is subject, however, to the Qualification that the basis for classification must be reasonable and proper and founded upon a real, and not merely artificial, distinction between the members of the class and the general public, and based upon "a necessity springing from manifest peculiarities, clearly distinguishing those of one class from each of the other classes, and imperatively demanding legislation for each class separately that would be useless and detrimental to the others." Ayars' Appeal, 122 Pa. 266, 281, 16 Atl. 356, 363 (2 L. R. A. 577), quoted with approval in Com. v. Puder, 261 Pa. 129, 135, 104 Atl. 505. The latter case, where the constitutionality of an act regulating the business of loaning money in small amounts was upheld, contains a general discussion of the principles governing the classification of trades or businesses.

Illustrative of the construction and application of the constitutional clause in question are the numerous cases decided under the Mechanics' Lien Acts, wherein it has been held uniformly that a statute extending the law relating to mechanics' liens as it existed at the time of the adoption of the Constitution of 1874, provides a new method for the collection of debts due a particular class of creditors, and consequently is void. Sax v. School District, 237 Pa. 68, 85 Atl. 91; Smith's Appeal, 241 Pa. 336, 88 Atl. 491, and

numerous cases therein cited. In the former

case this court held the act of May 6, 1909 (P. L. 441), providing for the collection of money due subcontractors for materials and labor furnished in the construction of municipal improvements, was unconstitutional as a new system by which a particular class of creditors were permitted to collect a special class of debts. In the latter case it was held that the act of April 22, 1903 (P. L. 255), amending the Mechanics' Lien Law of June 4, 1901 (P. L. 431), providing a means of recovery for labor and materials furnished a structure for purely public purposes in lieu of the lien given by the general Mechanics' Lien Law was void as being a new method for the collection of debts.

We find in the present case nothing to justify classification of attorneys for the purposes included within the scope of the statute, and must therefore hold the act to be a special law creating liens and providing a new method of collecting debts within the constitutional inhibition.

[2] Tested by the foregoing principles, the act in question cannot be sustained as one where classification can be upheld on the ground of necessity. Attorneys do not differ materially from other classes. The desire, and presumably the need, to collect compensation for services, whether physical or mental, is not peculiar to attorneys, but is shared in common by all other members of society affirmed.

The judgment of the Superior Court is

(265 Pa. 202)

In re SEITER'S ESTATE.

Appeal of SCHAFF.

(Supreme Court of Pennsylvania.

1919.)

and declare the following to be my last will and testament, hereby revoking all former wills by me at any time heretofore made.

"First. I direct that all my just debts and June 21, funeral expenses be paid as soon as may be after my decease."

1. WILLS 78, 79-ON ISSUE AS TO REVOCATION OR CANCELLATION OF WILL EXISTENCE OF VALID WILL MUST BE SHOWN.

Under Act April 8, 1833 (P. L. 249) § 13, re-enacted by Act June 7, 1917 (P. L. 409), the question of revocation or cancellation of a will cannot come up until it appears that a perfect will was in existence upon which such question may be founded.

2. WILLS 98-ADOPTION OF EXISTING PAPER CANNOT BE SHOWN BY EXTRINSIC EVIDENCE.

A will may adopt an existing paper by reference, but it must be so identified by the instrument as not to admit of a contrary conclusion, and the order of connection must appear upon the face of the will, and cannot be established by extrinsic evidence, and it must be a will executed as directed by statute.

3. WILLS 97-SEPARATE PAPERS NOT REFERRING TO EACH OTHER NOT SO CONNECTED AS TO CONSTITUTE A VALID WILL.

Four separate. pieces of paper, the first starting in the usual phraseology, directing payment of debts, etc., the second disposing of the residue of the estate, the third in the form of an attestation clause, and the fourth signed in the form of a will, delivered to a niece of testator with the declaration that it was his will, inclosed in an envelope bearing the name of an attorney, and containing a sealed envelope indorsed "Will," etc., each part not referring to the other, was not entitled to probate under Act June 7, 1917 (P. L. 409) $ 19.

4. WILLS 111(2)-EVIDENCE INSUFFICIENT TO SHOW "SIGNING AT THE END THEREOF."

Where none of four separate papers of apparent testamentary character was signed at the end thereof, the fourth having the testator's name written thereon with the names of two other persons, one of whom admitted that the signature was his, as required by Act April 8, 1833 (P. L. 249) § 6, there was no "signing at the end thereof," as contemplated by that act.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, End.] Appeal from Orphans' Court, Erie County. Proceeding for the probate of the will of John H. Seiter, deceased. From a decree sustaining a decision of the register of wills, refusing to admit the will to probate, Elizabeth Schaff appeals. Affirmed.

The four pieces of paper alleged to constitute the will of the deceased were in the following form:

On one page:

"I, John Seiter, of 311 French street, in the city of Erie, county of Erie and state of Pennsylvania, being of sound and disposing mind, memory and understanding, do make, publish

On another page:

"Eighth. As to the rest, residue and remaingive, devise and bequeath the same to my hereder of my estate, real, personal and mixed, I inafter named executors, in trust to sell and dispose of the same at public or private sale and to the best advantage and to divide the proceeds thereof between my niece, Marie Seiter, of Olean, New York, and my deceased wife's niece, Elizabeth Schaff, Erie, Pennsylvania, share and share alike. My said real estate is to be sold and converted by my said executors within a reasonable time after my decease." On another page:

"Signed, sealed, published and declared by the above named John Seiter, as and for his last will and testament in the presence of us, who at his request and in his presence, and in the presence of each other, have hereunto subscribed our names as witnesses hereto."

On another page:

"John Seiter. [Seal.]

"John R. Haughney, 519 Myrtle St.
"Adelaide Markley, St. Vincent's Hospital."
Indorsed on the back of the envelope:

"Will of
"John Seiter

"Dated January 29, 1915.
"Law Office of

"J. R. Haughney,
"604-605 Masonic Temple,
"Erie, Pa."

The court sustained the decision of the register. Elizabeth Schaff appealed.

Argued before BROWN, C. J., and FRAZER, WALLING, SIMPSON, and KEPHART, JJ.

L. E. Torry, of Erie, for appellant.

John R. Haughney, of Erie, for appellee.

KEPHART, J. This is an appeal from a decree made in a proceeding under section 19 of the act of June 7, 1917 (P. L. 409). The register of wills certified to the court below that the four pieces of paper, not physically connected and only one of which was signed, offered for probate as the last will and testament of John H. Seiter, presented a disputable and difficult question, which the court was asked to determine. A caveat had been filed against the probate of the will. The court, after hearing testimony, decided the papers did not constitute a will, and decreed that they should not be admitted to probate.

John H. Seiter, a year and a half before his death, gave to the niece of his deceased wife an envelope, saying:

(108 A.)

"Here, Lizzie, is my will; you keep this will [ed, they were connected by their internal until I ask you for it. If I don't ask you for it, you keep it until I am dead, and then take it to a lawyer and have him read it to you."

“J. R. Haughney, Attorney at Law, 604 Ma-ence or adaptation of parts," to constitute a sonic Temple, Erie, Penna."

Mrs. Schaff took the envelope to her home, and put it in a cupboard, where it remained until shortly before Seiter's death. Two days after his death, she, in company with two others, took the envelope to a member of the bar, who opened both envelopes, and found inside the inner envelope four pieces of paper, hereinafter referred to. One of the per-ency to connect the papers; nor is there anysons, claimed to have been a subscribing witness, admitted that the signature on one of the papers was his; the other person whose name appeared theeron could not be found. It was stated that sections or paragraphs had been cut from a complete will by the testator, who adopted this means of canceling the sections or paragraphs thus cut out.