The opinion of the court was delivered,
by Sharswood, J.
The first point made is on the constitutionality of the Act of Assembly of April 10th 1867, Pamph. L. 1067, entitled “ An Act to change the venue in certain cases from Allegheny to Jefferson county.” The bill in this case was filed originally in the District Court of Allegheny county, and was there pending when by this act it was directed to be removed to the Court of Common Pleas of Jefferson county. If there was a provision in the constitution that no man should be sued except in the county of his residence, there might be some reason for holding this and all other acts of the same kind unconstitutional. But there certainly is no such provision. It is supposed that the establishment of a Court of Common Pleas for each county by Art. Y., sect. 1, necessarily implies as much. That would be carrying the doctrine of implication to a very extravagant length. *165A prohibition may be implied even in a constitution, but the implication must be very plain and necessary. The legislature possess all legislative power except such as is prohibited by express words or necessary implication. No doubt the object of the institution of a Court of Common Pleas in each county was that the administration of justice might be brought as near as possible to every man’s hearthstone. Of necessity, however, this cannot and ought not to be in all cases. The contention of the appellants would preclude the legislature from ever changing the venue of an action, though the voice of justice might imperatively demand it, and would even prevent the court of one county from entertaining jurisdiction where its process has been duly served on the citizen of another. Business or. necessity might oblige him to be there for a time, and it may be said to be very unjust to subject him thereby to a lawsuit at a distance from his home. The argument proves entirely too much. It is a power which has been frequently exercised by the legislature thus far, at least, without question of its constitutionality.
The second question is as to the effect o'f the judgment in the replevin suit recovered by the defendants against the plaintiff in the District Court of Allegheny county, and which was after-wards on a writ of error affirmed in this court: Corbett v. Lewis, 3 P. F. Smith 322. It is strenuously contended that the judgment in that case settled conclusively that Corbett had not fulfilled his contract by the delivery of lumber to an amount sufficient to vest in him any title to one-third of the land, and that it wrought an estoppel upon him from setting up such a claim in any other .action or proceeding. But it is too well settled to need either argument or authority to maintain it- that the estoppel of a judgment extends only to the question directly involved in the issue, and not to any incidental or collateral matter, though it may have arisen and been passed upon. This is clearly stated in the language of Lord Chief Justice De Grey in The Duchess of Kingston’s Case, 11 Harg. State Trials 261, 20 Howell’s State Trials 538, 2 Smith’s Lead. Cas. 424: “Neither the judgment of a court of concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognisable, nor of any matter to be inferred by argument from the judgment.” This rule, though there may sometimes be .difficulty in applying it, has never since been called in question: Moulton v. Libbe, 15 N. H. 480; Hibshman v. Dulleban, 4 Watts 183" court="Pa." date_filed="1835-05-15" href="https://app.midpage.ai/document/hibshman-v-dulleban-6311444?utm_source=webapp" opinion_id="6311444">4 Watts 183; Lentz v. Wallace, 5 Harris 412; Martin v. Gernandt, 7 Id. 124. The direct issue in the replevin suit was the right of the plaintiff at the time the writ issued to the possession of the lumber described in it. That certainly involved the question whether at that time Corbett had furnished lumber under his agreement sufficient to pay the *166cost of saw-mills and manufactory, when he was to receive an undivided third in the lands, mills, &c. It was required that the jury should go into the accounts so far, and so far only, as was necessary to settle that question. The direct object of that suit was not an account, and the judgment therefore could have been conclusive neither for or against either party in a subsequent proceeding for an account. The case of Campbell v. Conzalus, 25 N.Y. 613" court="NY" date_filed="1862-12-05" href="https://app.midpage.ai/document/campbell-v--consalus-3587666?utm_source=webapp" opinion_id="3587666">25 N. Y. 613, is entirely in point, and well illustrates the doctrine. There had been a proceeding by a mortgagor to compel satisfaction, and upon the report of referees that there was still a balance due on it his bill was dismissed. Upon a subsequent bill by the mortgagee to foreclose, it was contended that the decree in the first case estopped the defendant from setting up that the mortgage was then paid, but the court held the contrary unanimously. “In consequence,” they say, “of the nature of the transaction, it was necessary to take and state an account between them which would show how much was due upon the mortgage, in order to determine whether anything was due; but the evidence and inquiry as to the amount due was merely incidental or collateral to the direct issue whether anything was due.” Give to the judgment in the replevin suit the full force which only can be claimed for it as proving that on the 8th of April 1865, when the writ of replevin was issued, the cost of the saw-mills and manufactory had not been paid for by Corbett, there is no finding or decree here which contradicts that fact. Schedule 6, reported by the master, shows that after crediting the mill with the full amount allowed by the jury in that ease (less the cost of manufacturing and running), $11,115, Lewis & Nelson were only found indebted to the mill, after deducting its full cost, $97.33. Had the lumber been delivered under the writ to the plaintiffs therein instead of having been retained by Corbett on a claim-property bond, it cannot be doubted that it would have been a delivery under the contract to be charged against the cost of .the mill, nor ought it to be any less doubtful that the damages recovered took the place of the lumber, to the extent of its value, and when paid by Corbett were a credit upon his contract.
Nor do we perceive any evidence of such fraud or violation of contract on the part of the plaintiff as ought to preclude him from the relief which he seeks by his bill in a court of equity. That he did wrong in withholding the lumber, which was the subject of the replevin, the jury in that suit decided, and he paid for it in costs and damages not allowed in this account. It is not every unfounded claim which a man may make or unfounded defence which he may set up, which will bar him from proceeding in a court of equity. The rule that he who comes into equity must come with clean hands must be understood to refer to wilful misconduct in regard to the matter in litigation: Snell’s Principles 35. All the *167illustrations given in Francis, p. 5, under the maxim, as he states it, “He that hath committed iniquity shall not have equity,” show this. There is nothing in the evidence to evince that Corbett did not believe that the lumber which he had ready to deliver at the time the replevin was issued would more than balance the account, and that he had a right to a settlement before delivery. The master has reported that down to the sale to Hill & Jackson it is not even alleged that Corbett did not perform his part of the contract. That sale certainly was a waiver by Lewis & Nelson of any further performance by him, for it put it out of his power by delivery of possession to the purchasers.
We come now to the 3d error assigned, which is that the court below erred in overruling the exceptions to the master’s report. These exceptions are not numbered, but the first five and the 11th have been already considered. The 6th and 9th take exception to the credit to Corbett for the 200,000 feet claimed by him in the replevin as his own separate property and of the nine hundred dollars for hauling the same. As to these matters, however, the verdict and judgment in that suit must be regarded as conclusive on both parties. It found Lewis & Nelson to be entitled to the possession of the whole, and that under their agreement with Corbett. It mattered not, therefore, upon what ground this decir sion was arrived at — whether that the two hundred thousand feet were bought with funds advanced by Lewis & Nelson, Or were improperly mixed by Corbet with the other lumber to the possession of which for sale they were entitled. The mixture could only have the effect of confounding these boards with those deliverable under the contract, and making them a part thereof. It could not create a new original and independent title to them. They must necessarily partake of the character of the title of Lewis & Nelson to those with which they were confused. Thus a mortgagee suing for the possession of the hypothecated property with which other property of the mortgagor had been so intermixed as not to be distinguishable, must take and hold the whole subject to redemption and account. So here Lewis & Nelson receiving the order of the whole on the title arising from Corbett’s agreement, must be held to have received the whole subject to account.
The 7th and 8th exceptions we think should have been sustained. The master charged Lewis & Nelson with the whole amount of the value of the lumber for which they contracted to sell the property to Newton Taylor, although it was an unquestionable fact in the cause that a large amount of it had not been received by them at the time to which the account was made up. By claiming what may for brevity’s sake be called the price or purchase-money of the fee simple contracted to be sold to Taylor, Corbett necessarily affirms that sale. The master says: “Viewing the contract of sale as a conversion by Lewis & Nelson of the *168real and personal estate, equity would charge them with the actual money value of the personalty thus substituted for the realty, at the time receivable under the provisions of the contract.” But it is not easy to perceive on what principle a tenant in common having made a contract to sell the common property with the consent, or, what amounts to the same thing, the subsequent ratification or affirmance of the other tenant, is in equity liable to account for more than he has actually received, when there is no fraud or bad faith, neither of which is imputed here. Had they actually parted with the legal title to a purchaser without notice so that Corbett was thereby divested entirely of his clajm to the land, there would perhaps be some plausible reason for holding them to account for the full value at the time of the sale, and assuming the agreed consideration in the deed, whether paid or not, as evidence of that value. But by the terms of the agreement witb Taylor, dated December 26th 1865, no conveyance of the legal title is to be made to bim until all the requirements of the article are complied with. Lewis & Nelson still hold the legal title as security for the balance of the purchase-money yet unpaid. That balance never may be paid. They may be compelled to proceed upon their legal title to collect it. The vendee may not be able to comply with the terms of a conditional verdict, and the land may have to be resumed or sold by tbe sheriff. At all events they may be subjected to costs, expenses and delay before the amount shall be fully realized. By the decree made on the master’s report, Lewis & Nelson are in effect compelled to become purchasers of Corbett’s interest. The plaintiff does not appear to have insisted upon a conveyance to him from Lewis & Nelson of the legal title to one-third, subject of course to Taylors equity. He is willing to accept his personal recourse against them for the purchase-money of the property contracted to be sold: but he cannot in equity, as it appears to us, call upon them to pay over to him any portion of that purchase-money, before it has been actually received. As the record must be remitted, and the account sent back to the master to be re-adjusted according to this opinion, it may be proper to observe that if any of the purchase-money has been received since this account was made up, it should be charged so as to bring up the settlement to the date of the final account.
As to the 10th exception, which includes several items, we may say that we think that the master ought to have allowed Lewis & Nelson a credit for the $250 paid to Thomas Hill for damages for the non-delivery of the lumber contracted to be sold to him, as well as for the $1200 paid by them to Hill & Jackson for money which they spent on the property in making boards; but we see no reason for allowing them for the fees paid to their counsel for the trial of the replevin suit. In an account as *169between tenants in common, which this is, all disbursements by either for the recovery, defence or protection of the joint property are legitimate matters of, discharge, but not the law expenses of any adverse suits between the tenants in common themselves. Such cases must follow the ordinary rule which punishes the losing party with the legal costs. Had Corbett succeeded in that suit he could not have charged Lewis & Nelson with the fees paid to his counsel. He might with as good reason claim to charge them with the fees paid by him in this case. The right must be a mutual one if it exists at all. As to the two receipts of October 14th 1863 and November 4th 1863, said to be marked F and Gr, we have not been furnished with copies, and see no reason to dissent from the conclusion which the master reached in regard to them.
We have thus considered and disposed of all the exceptions to the master’s report, under the 3d, assignment, from a desire to decide all the questions of importance in the cause. But we have not overlooked the fact that this assignment is in violation of Bule YI. (6 Harris 578), that “if any specification embrace more than one point, or raise more than one distinct question, it shall be considered a waiver of all the errors so alleged.”
Decree reversed, and record remitted for further proceedings.