
    Laird’s Appeal. [Laird v. Laird.]
    An appeal does not lie from a decree of partition in the common pleas. The facts involved in such a case can only be reviewed by the supreme court on a writ of error.
    Exceptions were filed to the allowance of counsel fees in partition, which were dismissed June 11,1887. On June 20, the court ordered the costs of partition to be paid by the exceptant, except the counsel fees as taxed by the court, “which sum is to remain to abide the judgment of the supreme court, should an appeal or writ of error be taken.” On July 2, the court granted leave to issue execution for the counsel fees. An appeal was taken July 2, and certiorari, tested July 4. It did not appear that execution was issued. Held that the proceedings should be affirmed.
    Oct. 1, 1888.
    Appeal, No. 155, Oct. T. 1887, of H. P. Laird et al., from a decree of O. P. Westmoreland Oo., in an action of partition by Francis Laird against H. P. Laird et al., at Nov. T. 1884, No. 92. Oreen, J., absent.
    The following facts appeared from the record: Summons in partition was issued on Sept. 4, 1884. On Nov. 22, 1886, the couK awarded a writ quod partitio fiat. An inquisition was held and approved, and the real estate was taken by H. P. Laird at a valuation. On May 20, 1887, the court fixed the counsel fee of H. W. Walkinshaw, attorney for plaintiff, at $400. H. P. Laird thereupon filed the following exception:
    “ 1. The item of $400, taxed as an attorney fee, is excepted to, and from the taxation of this attorney fee an appeal is now taken, the same having been taxed without notice to the exceptant; and, also, on the ground that the amount is excessive and unreasonable and entirely disproportionate to the services rendered by Attorney Walkinshaw;”
    Subsequently, the court made the following order: “And now, June 11, 1887, the exceptions to the allowance of counsel, $400, are dismissed.”
    On June 20, 1887, the court made the following order: “ That H. P. Laird pay the costs of the partition and this audit, amounting to $658.05 out of the valuation, except the sum of $400, being tbe amount taxed by tbe court for tbe attorney on the record, wbicb sum has been excepted to, and wbicb sum of $400 is to remain, to abide tbe judgment of tbe supreme court, should an appeal or writ of error upon tbe exception filed be taken.”
    On July 2, 1887, tbe court made a further order as follows: “And now, July 2, 1887, upon application of H. W. "Walkinshaw, attorney for plaintiff, leave given to issue fi. fa. for tbe balance of costs unpaid, to wit, tbe sum of $400.”
    On July 2,1887, this appeal was taken; also a certiorari. It is stated in tbe paper book of tbe appellee that tbe writ was tested July 4. It did not appear that execution bad issued.
    
      The assignments of error specified tbe action of the court, 1, in fixing tbe counsel fee of plaintiff’s attorney at $400, to wbicb order tbe appellants excepted, quoting tbe exception ; 2, in dismissing tbe exception and making the order of June 11, 1887, quoting the order; 3, in awarding an execution for tbe $400 counsel fees, quoting the order of July 2, 1887.
    
      Laird & Keenan, for appellants.
    Tbe allowance for counsel fees contemplated by tbe Act of April 27, 1864, P. L. 641, is not for litigation. Snyder’s Ap., 54 Pa. 67; Grubb’s Ap., 82 Pa. 23; Campbell’s Est., 13 W. N. C. 144; Fidelity Co.’s Ap., 16 W. N. C. 12; Monestier v. Monestier, 17 W. N. C. 255.
    Tbe leave granted to issue a fi. fa. was premature and inconsistent with tbe order of July 2, 1887. It was at least one day too soon, counting from June 11, under tbe Act of March 11, 1809, Purd. 740, § 7, allowing three weeks after judgment. See, also, Act of June 16, 1836, § 8, Purd. 706, § 20. Tbe writ of error was a supersedeas, as execution bad not been issued. Bryan v. Comly, 2 Miles, 271; Adams v. Hindman, 2 Miles, 464; McDonald v. Gifford, 1 Brewster, 278.
    
      H. W. Walkinshaw, p. p., not heard.
    Tbe court below was tbe best judge of tbe services rendered. Totten’s Ap., 40 Pa. 385.
    No appeal bes to tbe supreme court from tbe taxation of costs by tbe court of common pleas. McCauley’s Ap., 86 Pa. 187; Grubb’s Ap., 82 Pa. 23. The latter case was partition.
    Tbe appeal, even if it would lie, was too late, as tbe writ is bested July 4, 1887. In Snyder’s Ap., supra, and Fidelity Co.’s Ap., supra, tbe mistake was that tbe auditor taxed tbe fee instead of tbe court, as required by tbe Act.
    Oct. 29, 1888.
   Per Curiam,

It is a mistake to suppose that an appeal lies from a court of common pleas in an action of partition. Tbe facts involved in such a case can be reviewed in this court only on a writ of error. We must, therefore, disregard the appeal. As on the certiorari we can only pass on the regularity of the record, which in this case seems to be unexceptionable, we can do no otherwise than affirm the action of the court below. An allowance for counsel fees is warranted by the statute, and whether the amount fixed by the, common pleas was or was not too large we have no means of judging, as we are not permitted to pass upon the evidence which induced the action of the court.

The judgment is affirmed.  