
    JOHNSON VS. MARSH.
    Wl'ere there has been no demand for payment before issuing an vZRüCS** lion upon a judgment note, and defendant pays debt, interest and oosta into court, an Attorney’s Commission for collection will not be allowed.
    No. 259 January Term 1884. Error to. Common Pleas of Union County. Marsh gave judgment notes for debt with an attorney’s commission of six per cent for collection, dated February 8, 1883. The notes were entered up on April 6, 1883, and execution issued. Defendant paid debt, interest and costs into Court on April 30, 1883, and petitioned the Court to be relieved of the payment of the attorney’s commission. The Court directed the attorney’s commission to be repaid to defendant on December 17th, 1883, in the following opinion, per
    Bucher, P. J.:.
    The allegation of the defendant, .James S. Marsh, is that the judgment upon which the Fi-fas issued, were given with the distinct promise and agreement on the part of the plaintiff that he wanted them simply for security, and that the execution should not issue for their collection until a reasonable time had elapsed after the defendant had procured a re-conveyance of his property, which had been assigned by him for creditors. The notes were executed February 8th, 1883, at 30 days. On the one note James S. Marsh was surety for Charles I£. Marsh, the debtor. James S. Marsh did not receive a re-conveyance of his property that had been assigned until the 19th day of March, A. D. 1883. Then on the 6th of April, 1883 (less than 30 days after the re-conveyance) executions were issued on the judgments, and on the "30th of the same month, when defendant had notice of them, he paid into Court the debt, interest, attorney’s commission at. 6 per cent, and the costs, and a rule was granted on the defendant to show cause why the attorney’s commission should not be p>aid to the plaintiff.
    The attorney’s commissions are large and we think that under all the circumstances of the case as disclosed by the! evidence that plaintiff should at least have demanded pay-, ment before issuing execution. I am mindful of the fact that ¡ plaintiff swears that he did write the defendant to pay, but defendant swears that no demand was ever made by plaintiff before the writ issued.
    Under all the evidence I think that it would be unjust to require the defendant to pay the commissions.
    And now, 17th December. A. D. 1873, the rule is discharged, and it is ordered that the attorney’s commissions in Court be paid to the defendant, James S. Marsh.
    Johnson then took this writ of error, complaining of the repayment of the commission to the defendant.
    J. Merrill Linn, Esq., for plaintiff
    argued that commissions were specified in the note, and its terms could not be altered by parol testimony; Restein vs. Graff Bros., 41 L. I. 134, and also cited Imler vs. Imler, 94 Pa. 375.
    Messrs. Dill and Beale, contra,
    cited Landis vs. Aldrich, 9 W. N. C. 192; Reed vs. Worthington, ibid; Imler vs. Imler, 94 Pa. 372; Lewis vs. Germania Saving Bank, 96 Pa. 86; Daly vs. Maitland, 88 Pa. 384: McCann vs. Farley, 26 Pa. 173; Loomis vs. Lane, 29 Pa. 242; Irwin vs. Shoemaker, 8 W. & S. 75; Cowden’s Estate, 1 Pa. 279; Nailer vs. Stanley, 10 S. & R. 450; Mevey’s Appeal, 4 Pa. 80.
   The Supreme Court affirmed the judgment of the Common Pleas on May 26, 1884, in the following opinion by

Green, J.:

There is no question in these records between the plaintiff’s attorney and the defendants. The controversy is solely between the parties themselves. We agree with the learned court below in holding that there should be a demand made upon the defendant for the payment of the money due on the judgement before the defendant can be required to pay the attorney’s commissions stipulated for in the single bills. If such demand had been made, it is quite possible there would have been no occasion to nv’ke the services of an attorney necessary. As soon as the writs of Fi. Fa. were issued the defendants paid the money in full, and they testify that no demand was ever made upon them prior to the issuing of the writs. The plaintiff testifies that he wrote to James S. Marsh “in regard to the payment” after the notes became due, but does not say when he wrote, or whether he demanded that payment should be made, or whether his letters were properly mailed. The notes were dated February, 8, 1883, payable at thirty days after date. Judgments were entered on them on April 6, 1883, and execution issued the same day. In the absence of satisfactory evidence of a demand for payment before entering the judgments and issuing the executions, we think the necessity of resorting to the services of an attorney for collecting the money does not appear, and without proof of such necessity the defendants ought not to be subjected to the payment of the commissions. There is no objection to such a stipulation in an obligation for the payment of the money, but it should not be abused.

The judgments are affirmed.  