author: Mr. Justice Sharswood

text:
    Thoma & Blandy’s Estate. Appeal of Brown et al.

    1. A fund in court arising from a sheriff’s sale was referred to an auditor for distribution to report at the next term; his report was ready for filing, when on application of creditors whose claims had been rejected, the time for reporting was extended. Further testimony was taken generally, on which the auditor made a report different from the first. Held, that by the reference back, the whole ease was re-opened and all the parties were bound to take notice of it.
    2. A furnace on a new plan was built, its air and water-pipes were laid, but the connections not made ; the furnace was put into operation, worked for a time and then blown out on account of defect in its plan and construction. Money was then raised on a mortgage by which all the mechanics’ claims then due except one, were paid. Other work was done, altering the construction, building new kilns, &c. Held, that under the circumstances in the case, the building was finished at the date of the mortgage and the liens for work after that time were postponed to the mortgage.
    3. The lien for the unpaid claim was not entered for more than six months after the first completion of the furnace. At the hearings before the auditor and the court below, it was treated as a lien subsisting before the mortgage and as such was allowed in the distribution ; no exception was taken to its allowance. The Supreme Court treated it as a subsisting lien at the sheriff's sale and prior to the mortgage, and held, that the sheriff's sale therefore divested the mortgage.
    March 17th 1874.
    Before Agnew, 0. J., Sharswood, Mercor and Gordon, JJ. Williams, J., at Nisi Prius.
    Appeal from the Court of Common Pleas of Lehigh county: No. 325, to January Term 1874.
    The proceedings in this case were upon the distribution of the proceeds of the sheriff’s sale of the real estate of Alois Thoma and Graham Blandy.
    George W. Brown obtained judgment December 6th 1872, for $1666.90 against the defendants Thoma and Blandy on a scire facias on a mechanics’ lien. Under a levari facias on this judgment the defendants’ real estate was sold by the sheriff on the 21st of February 1873 for $8600 to W. F. Biddle, who was a mortgagee of the property sold. Of the purchase-money the sheriff paid'into court the sum of $8300.
    On the 19th of April 1873, E. J. More, Esq., was appointed auditor to report distribution.
    The contest in the case was between W. F. Biddle mortgagee and the claimants under mechanics’ liens.
    The auditor reported, that he sat on the 21st of May 1873 for the purpose of hearing the several claimants ; that he had several hearings, and that on the 25th of October “the testimony was considered concluded,” that the report was ready for filing at November court 1873.
    On the 8th of November 1873, on the application of McHose & Ritter and M. C. Fetter, mechanics’ lien creditors, the court extended the time for the auditor to make his report.
    On the 9th of December 1873, McHose & Ritter and M. 0. Fetter produced Walter P. Huber, J. W. Reichárd and Marcus C. Fetter to prove the claims of McHose & Ritter and M. C. Fetter; Biddle the mortgage-creditor produced D. U. Marsteller as a general witness in the case; with his examination the testimony was closed.
    The facts as they appeared before the ease was referred back to the auditor were as follows:—
    “In August or September 1870, Alois Thoma and Graham F. Blandy, associated together as Thoma & Blandy, commenced the erection of an iron furnace in West Bethlehem, Lehigh county. This furnace was distinguished from other iron furnaces erected in this country, by being supplied with a contrivance by which the raw ore was to be subjected to a heating or baking process before smelting it. The object of this heating or baking process seems to have been to free it from impurities, thereby improving the quality of the iron to be produced from it.

      “ So far as the manufacture of.iron is concerned, this furnace has proved a failure, and is now standing idle.
    “ The materials for the construction of it appear to have been furnished by Francis E. Luckenbach, George W. Brown, Borhek, Knauss & Miksch, McHose & Ritter, Bernard E. Lehman, Abbott & Bro., Charles F. Beckel, Cole & Heilman and Marcus C. Fetter. These material-men furnished materials for the construction of the furnace from the commencement until the end, with the exception of G. W. Brown, who commenced work on machinery he furnished, on October 13th 1871, and he commenced shipping his goods in January, A. D. 1872. Thoma, one of the partners, seems to have been the principal manager and superintendent of the works until some time prior to August 1st 1871, when John F. Blandy, a brother of Graham F. Blandy, by virtue of a power of attorney became the attorney in fact for his brother, and assumed concurrent authority, and took an active part in the management of the works. At the time that John F. Blandy became connected with these works, which was about August 1st 1871, they had* progressed so far as Thoma seems to have had designed them, though upon a trial they would not work. At this time, also, there was considerable indebtedness on the part of Thoma & Blandy for labor and materials furnished in the construction of the furnace, and Thoma & Blandy executed a mortgage upon these works in favor of Wm. F. Biddle, bearing date August 1st 1871, for $15,000. This mortgage was entered in the office for recording of deeds in the county of Lehigh, on the 2d day of August 1871. This is the only mortgage on record. A large number of judgments and transcripts from justices’ dockets were entered against Thoma & Blandy, in the Court of Common Pleas of Lehigh county, but not until after June 1872. The $15,000 realized from the mortgage were paid into the hands of John F. Blandy, and by him applied to the payment of the claims for labor and materials furnished to Thoma & Blandy in the construction of this furnace, which were contracted at the date of the mortgage. These debts were all paid by John F. Blandy, with the exception of $67.51 due Charles F. Beckel for materials furnished prior to that time. This is the only claim which the auditor can discover which remained unpaid at the time the mortgage spoken of was entered of record.
    “ The contestants for the funds in court are the mortgagees on the one hand, who claim as holding the first lien, and the mechanics’ lien holders, who claim to be prior to the lien of the mortgage by virtue of the Act of Assembly relating to mechanics’ liens. The mechanics’ claims appear to be filed in the following order: F. E. Luckenbach, for $264.94, filed June 4th 1872, for sheet-iron and pipe, furnished between September 29th 1871 and May 10th 1872; George W. Brown, for $1628.76, filed July 17th 1872, for machinery furnished from January 3d 1872 to March 23d 1872; Borhek, Knauss & Miksch, for $313.03, filed September 19th 1872, for lumber furnished from October 19th 1871 to April 24th 1872; McHose & Ritter’s claim, for $394.02, for fire-clay brick furnished from May 8th 1872 to May 10th 1872; Bernard E. Lehman, for $601.67, for materials furnished from to . ; Abbott & Bro., filed October 12th 1872, for $1263.44, for materials furnished from November 30th 1871 to May 31st 1872; Charles F. Beckel, filed October 19th 1872, for balance of $476.77, for material furnished from March 13th 1871 to May 18th 1872; Marcus O. Fetter, for $54.68, for cartage, &c., furnished from to Cole & Heilman, for $650.78, filed November 21st 1872, for goods furnished from January 6th 1872 to May 16th 1872. The materials claimed to have been furnished by the above-named claimants, as well as the cartage of M. C. Fetter, were furnished subsequent to August 2d 1872, with the exception of the claim of C. F. Beckel, whose unpaid claim, to the amount of $67.51, was furnished before the mortgage was put on record. This is a general history of this case. The mechanics’ liens claimants ask to have the several amounts due upon their respective claims distributed to them out of the fund in court. On the other hand, the mortgagees claim the fund in court, on the grouncf that the mechanics’ liens do not take priority of the mortgage, because the work and materials alleged to have been done and furnished, did not go to the original construction of the furnace, but went to mere repairs and alterations. It is not denied that the'work was done and materials furnished which are mentioned in the several claims.
    “It is specifically objected to the allowance of these mechanics’ claims, that the work and materials mentioned in them were all done and furnished after August 2d 1872, which was after the furnace had been completed according to its original design, and were used in repairing and altering the original works, and therefore the liens do not relate back to the commencement of the original building. * * ' *
    “ The testimony produced before the auditor, refers chiefly to the inquiry as to whether this furnace was completed at the time of the execution of the mortgage; and whether what was afterwards done, was merely repairs, alterations or enlargements of the original' works. John F. Blandy took charge of the works on August 1st 1871. At that time he says he found the works all complete, with. the exception of the air and water pipe connections. The air and water pipes had been laid at that time, but the connections with the furnace had not been made. Mr. Blandy had also found that the machine for blowing was not of sufficient capacity for the work required of it. The water supply was also not sufficient, and an additional kiln was required to keep the furnace in constant operation. A water-tank was also required to supply a sufficient quantity of water. In ascertaining the fact whether this was a completed furnace on the 1st of August 1871, the auditor must have recourse to the very meager testimony which was offered upon the subject previous to the reference back for further proof. Was this furnace supplied -with all the appliances which a furnace of. this kind is required to have, on or before August of 1871 ? It appears that before Mr. Blandy took charge of the works, an attempt had been made to blow in the furnace, which failed, because,, as he says, the engine broke and the brick lining of the furnace was burnt through. It must be admitted that the attempt to blow in the furnace is some evidence that the projectors or superintendent must have considered it completed. It is true that other machinery was considered necessary by Mr. Blandy, yet even with this, the furnace proved a failure. If the furnace cannot be said to be finished, until it can be put in successful operation, then this furnace is not completed to-day. Looking at this case, however, in the light of the testimony produced, before the case was first closed, the auditor concludes that this furnace was not fully completed on the 1st of August 1871, and in accordance with this finding the distribution previously made is not disturbed.
    “ The claim of Cole & Heilman is for a water-tank, an iron wagon, and some smaller items of labor and materials incidentally connected with these articles. It is alleged that the materials mentioned in this claim were furnished under a special contract, and this fact is relied on by counsel, to overcome the objection to it, that it was not filed within the period required by the Act of Assembly relating to mechanics’ claims. It is further alleged that the materials so furnished in pursuance of this contract are not all furnished, and that other work was done in pursuance of it not mentioned in the claim. The only testimony offered in support of this allegation is that of Mr. Cole, one of the claimants. He says: ‘We had a special contract and Thoma made the drawings; they did the ordering and sent me the drawings, and I did the work; in making an estimate of the charge, I took into consideration the amount of the work be done for the furnace; I made a water-tank; a furnace cannot be run without a water-tank or reservoir; the work is not all done yet; they never gave me orders to finish; it never was a completed furnace ; my claim is not paid; the furnace was never completed.’ .This.is .all .the testimony relating to the alleged contract between Cole & Heilman and Thoma & Blandy. The claim does not refer to any contract, as it need not do. The bill of items attached to the claim is a current account of the materials furnished, and work done, with the dates showing when the same were furnished and done, as well as the prices at which the same were delivered and done. It will thus be seen that it does not appear what the terms of the contract were, when it ws-s to be performed, or what was to be done. If the contract ^ was that Cole & Heilman were to furnish certain machinery in a given time, it is probable that the claimant would have six months from the day upon which his contract was to be ended, to file his claim. In the case of a contract for the erection of a building the claimant would have six months after the completion of the same within which to file his claim. Now the contract of Cole & Heilman was not to construct the furnace, but, if anything, it was a contract to furnish machinery to it. The completion of this contract is in no wise connected with or dependent upon the completion of the building: it stands entirely by itself, and in ascertaining the time within which the claimant under it has to file his lien, we are to look only to its terms. * * *
    “ The Act of 14th March 1855 declares that whenever the items of a mechanic or material-man’s bill for work done or materials furnished continuously toward the erection of a new building, are in any part bond fide within six months before the claim therefor, the lien shall be valid for the whole. * * * It follows therefore that in the case of a special contract to furnish materials or labor, to the construction of a new building, the mechanic or material-man in order to continue his lien must file his claim within six months from the last thing done or furnished. The last article, in the bill of Cole & Heilman was furnished on the 16th of May 1872, and the claim was not filed until the 21st of November 1872, which was more than six months after the last article was furnished. It is however argued that the whole of the contract is not yet completed. As already stated the terms of this alleged contract are not made to appear, when it or under what circumstances it was to be completed or what beyond the items in the claimants’ bill are still wanting to complete it. Upon these most material points there is no testimony. Under these circumstances the auditor has come to the conclusion that the claim of Cole & Heilman was not filed within the period fixed by the Act of Assembly to constitute a lien upon these premises.
    “ The claims of McHose & Ritter and M. C. Fetter were proved before the auditor, after the former report had been made out and prepared for filing.
    “ The testimony which has been offered for and against these two claims, is of a character that would in the opinion of the auditor very materially affect the whole case. It is maintained by the counsel representing the claims which were passed upon and allowed before this testimony was produced, that as the case was referred back to the auditor in order that the claims of McHose & Ritter and M. C. Fetter might be proved, this new testimony does not affect them. On the other hand the counsel concerned for the mortgagee insists that the time for filing was merely enlarged and that testimony relates to the whole case. In this conjuncture the auditor has decided to treat this last testimony as if it applied merely to the claims of McHose & Ritter and M. C. Fetter.
    “ The claim of McHose & Ritter is for fire-clay brick furnished from May 8th to 10th of 1872. John W. Reichard, a furnace builder, used one-half of these bricks in relining the furnace-stack which had been burnt through, and the other half he used in the additional kiln that was put up. This witness testifies that the furnace was up and in blast before John F. Blandy came there, the furnace buildings were all up and the machinery was all in that is there now, and everything was there except the roasting-kiln. The furnace had been in operation and wasblowedout before John F. Blandy came there. ‘What was done after John F. Blandy came there was repairing and building that other kiln.’ And again, ‘ The furnace had been in operation before I came there, and what I did was repairing.’ This witness further says that when he said the furnace was not finished he meant that the machinery was too weak, and that it wanted a water-tank, ‘ the manner of supplying the water was not sufficient.’
    “David U. Marsteller, a witness, says he had charge of this ■furnace from the beginning to the end of the work, and that he was there all the time, and when John F. Blandy came there in August 1871. This witness further proves that the furnace was put in blast in February or March 1871, and that it was run about six weeks.
    “ Mr. Thoma made the draughts and plan for this furnace, and this witness says that according to these draughts and plan the furnace was finished before April 1871, with the exception of the water-pipes, &c. Witness says, I considered the furnace finished when John F. Blandy came there. It thus appears that this furnace was put in blast in February or March 1871, and that they ‘ ran it ’ about six weeks. Now these bricks were not furnished until May 1872, more than a year afterwards, and as to one-half . of them there can be no dispute that they were used to repair the furnace-stack by putting a new lining in place of the old one which had been rendered useless by being burnt through or by the chilling of the stack, and this at a period of more than one year after the person having charge of the building of the furnace says it was completed. As to the additional kiln put up the testimony of these witnesses agrees in saying that it was intended to give a greater capacity for baking ore, than the furnace possessed before.

      “After full and deliberate consideration of this testimony in connection with all the facts of this case, the auditor is of the opinion that the materials named in this claim did not enter into the construction of this furnace, but were used for the purpose of repairing and additions. The argument has been made that with the machinery and appointments it was supplied with when it was first blown in, it would not work, and that other and stronger machinery was found necessary, but it is plain that even with the new machinery the furnace cannot be worked and is apparently abandoned. Can it be supposed that if the owners were now to pay all the claims against it, and give a new mortgage, and then proceed to put in other machinery, that mechanics’ liens therefor would take priority of the mortgage ? And yet it could be shown that the furnace with its present appliances would not work, just as it would not work with the machinery with which it was supplied when Mars-teller declared it completed before. The same remarks apply to the claim of M. C. Fetter, with the exception that that claim does not clearly appear to be a proper subject of a mechanics’ lien claim.
    “ Entertaining these views upon the facts, the auditor considers it proper that these liens should not have priority of the lien of the mortgage, and that therefore they should not be paid out of the fund in court.
    “If the testimony of Marsteller and Reichard had been produced before me before the distribution had been made in the first instance, it is probable that none of the mechanics’ lien claims, with the exception perhaps of Mr. Beckel’s, would have been allowed. A portion of Mr. Beckel’s claim is prior to the date of the mortgage. If it were not for this fact the sheriff’s sale would not divest the lien of the mortgage at all, for otherwise the mortgage would have been the first lien.
    “ Under all the circumstances, the auditor deems it proper to report two distributions, one in accordance with the facts as they appeared before Marsteller and Reichard were examined, and the other in accordance with the facts as they now present themselves, so that if the court should be of opinion that this later testimony does or does not apply to the whole case, they can adopt either one or the other, and thus obviate a reference back to the auditor, as to them may seem proper.”
    By the first distribution the auditor awarded to the mechanics’ lien creditors the amount of their claims, and $3287.31, the remainder of the fund in court, to W. F. Biddle, tho mortgagee. By the second distribution he awarded $398.22 to Charles F. Beckel, a mechanics’ lien creditor, whose lien preceded the mortgage, and to W. F. Biddle $7532.73, the balance of the fund, after deducting expenses, &c.
    The findings of facts by the auditor having been approved by the court below, and the Supreme Court having taken his findings as conclusive, none of the evidence taken before the auditor has been given.
    Exceptions to the report were filed by Biddle, the mortgagee, amongst others, that the auditor had allowed Beckel’s whole claim, when he should have allowed but $67.51.
    The lien-creditors whose claims were disallowed by the auditor’s second distribution, filed exceptions, viz.:—
    1. The testimony of Reichard and Marsteller, submitted after the adjudication of the claims of Brown, Lehman, Abbott & Bro., Luckenbach, Borhek, Knauss & Mikseh, Beckel, and Cole & Heilman, does not apply to them or any one of them.
    2. The report of the auditor upon the claims of Brown, Lehman, Abbott & Bro., Luckenbach, Borhek, Knauss & Mikseh, Beckel, and Cole & Heilman, which was “made out and ready for filing,” was final, so far as their claims were concerned.
    3. The auditor erred and did a gross injustice to the mechanics’ lien claimants in not filing his first report as it “ had been made out and prepared for filing” before the testimony of Reichard and Marsteller was submitted before him, hut rewriting it after that testimony was submitted, and thus rewritten, filing it.
    4. The auditor erred in not filing his report as it “ was ready for filing during the sitting of the court in November” last.
    12. In not awarding to the mechanics’ lien creditors the amount of their claims respectively. -
    The other exceptions related to the findings of facts.
    Exceptions were filed by other parties to the report, covering substantially the same grounds, and also other grounds not involved in the decision by the Supreme Court.
    The following are extracts from the opinion of-Longaker, P. J., delivered in deciding upon the exceptions:—
    * * * “ The leading exception is to the finding of fact by the commissioner, that the work done and materials furnished were subsequent to the completion of the works and buildings, except as to the claim of C. E. Beckel. Bearing upon this question it is found that the commissioner cuts the testimony in two, and considers one series of it as regards all the claims, except as to McHose & Ritter’s, and as to this latter claim applies the whole testimony. The reason assigned for it is that the testimony was considered closed, and a report consummated which rejected the claim of McHose & Ritter, as well as the claim of the mortgagees; but subsequently, on the application of McHose & Ritter, the time for filing the report was extended and new testimony then admitted.
    “ This extension of time was made by an order of court, dated November 8th 1873; a reference to it will show that no limitation was then made as to the nature and character of the testimony to be thereafter taken, nor as regards its application after it should be obtained. No such order having been made, all that is material to an intelligent adjudication should be admitted. The proceedings before auditors, masters and commissioners are conducted usually with great liberality. The history of this case forms no exception to the general practice, but develops a most liberal and accommodating spirit towards all the claimants. Even if the testimony had been treated as closed, prior to the extension of November 8th 1873, there is no good reason assigned why it should not be opened so as to let in all testimony which may be relevant to the whole case. * * * There can be invoked no legal principle to exclude the testimony from operating upon all the claims, and much less is there any merit in the objections by these claimants, based as it is upon a mere technicality at best. The whole testimony must therefore be considered as applicable to all the claims.

      “ The question then recurs, shall the finding of the commissioner be reversed as regards the completion of the original design of these structures prior to the time of the execution of the mortgage — the 1st day of August, A. D. 1871 ? To disturb this finding it should be made to appear that it is founded upon mistake, or that it is so clearly against the weight of the evidence as not to warrant such a conclusion.”
    The court then discussed the evidence in the case, and proceeded :—
    “ Marsteller says he was there from the beginning, and that he considered the furnace finished when John F. Blandy came there. But a reiteration of this testimony in detail is not necessary; the commissioner has found the fact of a completion substantially before the execution of the mortgage, and in this finding has our concurrence. It therefore follows that the distribution of the commissioner awarding this fund to the Beckel claim, and the balance to the mortgagees, must be confirmed.”
    The mechanics’ lien creditors, to whom none of the fund was awarded, appealed to the Supreme Court and assigned the following errors: — •
    1. The court erred in distributing the fund in court to the mortgagee, William F. Biddle.
    2. The court erred in not distributing to the mechanics’ lien holders, to wit: B. E. Lehman, Abbott & Bro., Gr. W. Brown, Borhek, Knauss & Miksch, F. E. Luckenbach, C. F. Beckel, Mellóse & Ritter, and M. C. Fetter.
    3. The court erred in confirming and adopting auditor’s distribution No. 2, in so far as it gives the fund to the mortgagee.
    4. The court erred in not confirming auditor’s distribution No. 1.
    5. The court erred in finding as a fact that the iron-works were completed in August 1st 1871.

      W. R. Luckenbach, R. R. Roper, R. Albright and R. R. Wright Son, for appellants.

      H. Gfreen and J. R. Stiles, for appellee.
   Mr. Justice Sharswood

delivered the opinion of the court, May 11th 1874.

As to the main questions in these appeals — which is one-of fact merely — according to the well-settled principles upon which this court has always acted, we must consider the finding of the auditor upon all the evidence — after the second reference to him — to be conclusive, unless very plain mistake is shown. More particularly must that be so when his finding in that respect has been approved by the court below. We agree with the learned judge, that upon the reference back to the auditor, the whole case was necessarily reopened, and all parties before the auditor were bound to take notice of it. It would present a very strange anomaly if, as to some claimants upon a fund, a fact should be found one way, and in regard to other claimants on the same fund there should be a contrary finding, and a distribution awarded to some and denied to others, according to this double result, when it is manifest that in law and equity all stand upon the same platform. We hold, then, that the furnace in question was finished on the 1st of August 1871, when the mortgage of the premises to William E. Biddle was executed and recorded the next day. It is true that the weight of the evidence seems to be that the air and water-connections were not then made, though the pipes were all laid ready for the connection. Yet on the other hand the testimony of Reichard-, who laid the fire brick in the furnace in May 1872, —and it is not easy to see how he could be mistaken — is very positive and distinct. ■ “ The furnace had been in operation and was Mowed out before John E. Blandy came there; what was done after John E. Blandy was repairing and building that other kiln; the furnace had been in operation before I came there, and what I did was repairing; furnaces do sometimes chill when they are first started and require to be repaired.” It is not a point in dispute that John E. Blandy did take charge of the work on the 1st of August 1871, the date of the execution of the mortgage. Indeed, it can hardly be disputed that the furnace was started and run a short time before that day. The only contention is that it was for an experiment with the roasting kiln and not for the purpose of making iron. In either event we think the auditor and court below justified in coming to the conclusion, that the furnace was then finished according to its original plan, though that may have been defective, and repairs and alterations were afterwards made in order to remedy the defect.

Thus far upon the exceptions in the court below and the assignments of error in this court, nothing would remain but to affirm the decree and dismiss the appeals. But a point has been very ingeniously started here by the able counsel of the appellants, which requires to be noticed. It relates to the finding, both by the auditor and the court, of the existence of the lien of Charles F. Beckel. It -is clear that though when the mortgage was executed, Beckel 'had a claim to the extent of $67.51 for work and materials then done, and which was left unpaid; yet if the furnace was finished August 1st 1871, since his claim was not filed until October 1872, at the time of the sheriff’s sale, upon the judgment of the claimant, Brown, he had no lien. The logical consequence follows, that the mortgage being then the first lien, the sale would be subject to the mortgage, and the mortgagee have no right to come on the fund. Hence it is argued, the contention by the mortgagee, that the furnace was finished August 1st 1871, is felo de se. It shows that he has no standing in court, and his objection to the award of the money, or.any part of it, to the mechanics, ought to be disregarded as coming from an entire stranger. But it is to be remarked that no objection or exception in the court below appears to the claim of Beckel as a lien prior to August 1871. The mortgagee indeed did except, but only to so much as was for work done subsequently. His appeal to this. court has been withdrawn. There was good rea'son for this course. As we have seen, an objection- to Beckel’s claim by the mortgagee would have been fatal to his right to come on the fund. In like manner an objection by the mechanics, if successful, would have been equally fatal to them, for if Beckel had no lien on the ground that the furnace was finished August 1871, so neither had any of them. What then is the consequence as far as our duty to the cause is concerned ? Without exception and without assignment of error here we are bound to regard the claim of Beckel as a valid subsisting lien, which was so at the time of the sheriff’s sale. We are not called upon to take notice of the fact that it was not filed until October 1872. No injustice is done' by the decree. The furnace was to all outward appearance finished. The mortgagee advanced his money in good faith to pay off all existing mechanics’ claims. The money was so applied except as to this small amount due to Beckel, which seems to have been overlooked by mistake. The work subsequently done was evidently in the nature of mere alterations and repairs; though undoubtedly if the furnace had not been before finished, they would, within the principle of Norris’s Appeal, 6 Casey 122, be entitled to be considered as a part of the original erection and to relate back to the date of its commencement.

Decree affirmed, and appeals dismissed at the costs of the appellants.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Fraley’s Appeal.
    1. S. made a note with warrant of attorney to J. on which judgment was entered ; J. borrowed money from F. and delivered him the note as collateral security ; the judgment was not marked to F.’s use on the record. J. after-wards borrowed money from N. and by writing assigned the judgment to him ; the assignment was noted on the record of the judgment. In the dis-tribution of the proceeds of sale by the sheriff of the property of S., Held, that N. was entitled to the amount of the judgment.

      2. An Instrument on which judgment has been entered by the prothonotary under the Act of February 24th 1806, should not be delivered to the plaintiff; the practice should be abolished.
    3. Campbell’s Appeal, 5 Casey 401; Fisher v. Knox, 1 Harris 626, followed.
    March 19th 1874.
    Before Agnew, 0. J., Sharswood, Merour and Gordon, JJ. Williams, J., at Nisi Prius.
    Appeal from the Court of Common Pleas of Northampton county: No. 308, to January Term 1874. In the distribution of the proceeds of the sheriff’s sale of the real estate of Jacob Schweitzer.
    The facts in this case were as follows:—
    On the 25th of April 1871, judgment was entered in the Court of Common Pleas of Northampton county in favor of Jefferson Schweitzer against Jacob Schweitzer for $575.02, on a note dated April 1st 1871, with short warrant of attorney to confess judgment written under the note, so that it could not be detached from it. Neither the note nor warrant of attorney was filed in the prothonotary’s office, but in accordance with the uniform practice in Northampton county after judgment had been entered, an endorsement of the entry was made on the note and it ivas re-delivered to the obligee.
    On the 12th of May 1871, George E. Schweitzer and Jefferson Schweitzer made a note payable in ninety days to Abraham Fraley for $400, being for money then lent to George C. Schweitzer by Fraley, and as collateral security for this note, Jefferson Schweitzer gave Fraley the judgment note of Jacob Schweitzer in his favor; the judgment note was not transferred by any writing, but was handed to Fraley to be held as collateral security. No entry was made on the record that the judgment on the note was for the use of Fraley, or that the note was held by him as collateral security.
    On the 2d of August 1871, Christian Nagle made a loan to Jefferson Schweitzer, who at the same time executed a writing assigning the judgment against Jacob Schweitzer as collateral security for the money so lent, the note with the warrant still being in possession of Fraley. On the 17th of January 1872, this assignment was noted on the record of the judgment in the prothonotary’s office as follows:—
    “And now January 17th 1872, as per instrument in writing under the hand and seal of the plaintiff produced here this day the above judgment is assigned, transferred and set over unto Christian Nagle as collateral security.”
    The real estate of Jacob Schweitzer was sold by th'e sheriff; out of the proceeds a sum sufficient to pay his note to Jefferson Schweitzer was paid into court and William Mutchler, Esq., was appointed auditor to report distribution. He reported awarding the fund in court to Christian Nagle. The Court of Common Pleas (Longaker, P. J.) having confirmed his report and decreed the fund to Nagle, Fraley appealed to the Supreme Court and assigned the decree for ei'ror

      W. W. Schuyler, for appellants.
    The note and warrant not having been delivered to Nagle at the time of the loan, there was sufficient to put him upon inquiry as to whether Jefferson Schweitzer owned it, and he could have protected himself by retaining his money till the note was produced: Mott v. Clark, 9 Barr 405. If Fraley was negligent in not having the assignment noted on the record, Nagle was equally so in not requiring the warrant, Fraley being prior in time and with equal equity had the better right: 1 Story’s Eq. Jur., sect. 64, c. d.; Adams Eq. 158.

      O. II. Meyers, for appellee.
    Before notice of the assignment to Nagle, payment by Jacob to Jefferson Schweitzer would have been satisfaction of the judgment: Bury v. Hartman, 4 S. & B. 175; Brindle v. McIlvaine, 9 Id. 74. In order to give Fraley a right to the fund as against Nagle, he should have had the assignment noted on the record before Nagle took his assignment: Fisher v. Knox, 1 Harris 625; Campbell’s Appeal, 5 Casey 401.
   Judgment was entered- in the Supreme Court March 30th 1874.

Per Curiam.

We think this case is governed by the same principle which ruled the cases of Fisher v. Knox, 1 Harris 626, and Campbell’s Appeal, 5 Casey 402. The practice of delivering a note or bond, upon which judgment is entered by the prothonotary under the Act of 1806, back to the plaintiff is bad and malus usus abolendus est. It should remain on file as the evidence of authority for the judgment and the protection of the defendant.

Judgment affirmed.


text:
    Leonard versus Dillon et al.

    1. Judgment was recovered before a justice and appealed from ; he after-wards issued an execution which was regular on its face. Held, that the constable was protected in executing it, although he had notice of the appeal.
    2. The constable could not be affected by the illegal act of the justice; he could know nothing but what he saw on the writ.
    3. The only notice the officer is bound to regard, is one proceeding from the authority issuing the writ.
    4. It is for the justice to determine whether the appeal is regularly taken and to countermand the execution if issued.
    5. O’Donnell v. Mullin, 3 Casey 199, followed.
    March 25th 1874.
    Before Agnew, C. J., Sharswood, Mm. cur and Gordon, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Qlearfield county: Of January Term'1873, No. 135.
    This was an action of trespass d. b. a., brought October 9th 1858, by John M. Leonard against George R. Dillon, John Davis and others, for seizing and selling five colts, the property of the plaintiff.
    The facts in the case were as follows :—
    • Davis, one of the defendants, on the 15th of October 1856, recovered a judgment by default before O. P. Wilder, a justice of the peace, against Leonard, the plaintiff, for $72. Leonard appealed from this judgment and duly entered his appeal in the Court of Common Pleas. In October 1858, the appeal then pending, an execution was issued by the justice and delivered to the defendant Dillon a constable. He, with Davis, the plaintiff in the execution, and the other defendants, by authority of the execution, went to the premises of Leonard to levy on his personal property. Dillon levied on the five colts and sold them under the execution.
    The ease was tried November 13th 1872, before Mayer, P. J. Besides the facts as above stated there was evidence, that at the time of the levy and seizure Leonard notified both Davis and Dillon of the appeal. After the levy, he obtained a certiorari to the justice, which he served on the justice and Wilder. The constable was indemnified by Davis and sold the colts under the execution.
    There was evidence as to the value of the property and also as to other matters connected with the seizure and sale.
    After referring to the evidence Judge Mayer charged:—
    * * * “ Under this state of facts, which seem to bo without dispute, it is contended on the part of plaintiff that as the judgment on which the execution was issued had been appealed from, prior to the issuing of said execution, the justice had no jurisdiction to issue the writ,-and that in consequence it furnished no protection to the constable in the execution of it; that he was a trespasser and liable to respond to tbe plaintiff for all damages sustained by tbe levy and sale of the colts.
    A constable is a ministerial officer, whose duty it is to execute all legal process committed to him, issued by a magistrate having jurisdiction of the subject-matter, and who would be liable for any neglect or omission of duty in the execution of such process. And where want of jurisdiction does not appear upon the face of the writ, we are of the opinion that the officer is not bound to examine into the validity of the proceedings or the regularity of the process. In this case, although the judgment was appealed from, and the justice issued the execution without authority, yet as the writ was regular, and nothing appeared on its face to indicate a want of jurisdiction, we think ’the constable can claim the benefit of the execution under which he acted, and justify himself in making the levy and selling the property of the plaintiff. [Neither was he bound to regard the notice given to him by the defendant in the execution that the appeal had been taken.] Had notice been received from the justice that the judgment was appealed from, and the execution revoked or superseded, and the constable had then proceeded with the execution of the writ, he would have rendered himself liable as a trespasser. Nor was the liability of the constable affected by the service of the writ of certiorari upon him. The writ was not directed to the constable, but to the justice who issued the execution. The service of it upon the constable was a nullity. If service of it was made upon the justice, it would have been his duty to notify the constable, and to revoke or supersede the execution in his hands. In the absence of such revocation or supersedeas from the justice, it was the duty of the constable to proceed with the execution of the writ. * * * Under the evidence and the law we say, that G-eorge Dillon, the constable, is not liable to the plaintiff for levying upon and selling his property, under and in pursuance of the mandate contained in the execution issued upon the judgment of John Davis. But whilst the constable is not liable, John Davis, the plaintiff in the judgment before the justice and one of the defendants in this action, would not be exempt from liability, but would be responsible for all damages which the plaintiff may be entitled to recover, and as to him the jury can render a verdict for the plaintiff, for an amount which will fully compensate him for the loss sustained by the seizure and sale of 'the colts. What amount of damages is the plaintiff entitled to recover ? As a general rule, the measure of damages in an action of this kind is the value of the property taken and interest thereon to the time of trial; but the jury are not confined to the actual damage sustained; they may go beyond that, if the evidence shows that the taking of the property was attended with circumstances of aggravation or outrage. If Davis, the plaintiff in the judgment, knew that the appeal had been taken and entered, and proceeded regardless'of it to enforce the collection of his judgment by execution, the jury may take that into consideration in determining the amount of damages to which plaintiff may be entitled, being careful to limit themselves within reasonable bounds.
    The verdict was for the plaintiff for $323.16 against Davis, and for Dillon and the other defendants.
    Leonard took out a writ of error and in several specifications assigned the instructions of the court to the jury, for error.

      W. A. Wallace, for plaintiff in error.
    An execution on a judgment appealed from is no protection to the constable : O’Donnell v. Mullin, 3 Casey 199. An execution issued within the period of a stay of execution is a nullity: Milliken v. Brown, 10 S. & R. 188. An officer is not protected if he has notice that the justice had not jurisdiction, although the process may show on its face that he had jurisdiction: 2 Hilliard on Torts 185 ; McDonald v. Wilkie, 13 111. 22, 602; Barnes v. Barber, 1 Gilm. 401; Parker v. Smith, 1 Id. 411; Whipple v. Kent, 2 Gray 410. The constable was liable for executing the process after the issuing of the certiorari: Belshaw v. Marshall, 4 B. & Ad. 336; Williams v. Stewart, 12 S. & M. 533.

      J. B. McBnally, for defendant in error.
    Whenever the subject matter is within the jurisdiction of the justice, and the writ is regular on its face, the constable is safe in obeying its command, no matter what his own opinion maybe: 2 Hilliard on Torts 184, etseq. A constable may justify under an execution, although irregular : Paul v. Vankirk, 6 Binney 123 ; Moore v. Allegheny, 6 Harris 58; Cunningham v. Mitchell, 17 P. F. Smith 81; Billings v. Russell, 11 Harris 192; O’Donnell v. Mullin, 3 Casey 202.
   Judgment was entered in Supreme Court, March 30th 1874.

Per Curiam.

The execution being regular on its face, and the justice having jurisdiction, the ■ constable was protected by the writ notwithstanding the judgment before the justice was superseded by the appeal. The mistake or even the wilful wrong of the justice in issuing the execution, reciting the superseded judgment as in full force, could not affect the constable, who could know nothing except what he saw on the face of his writ. Having an execution regular in all appearance, he cannot be placed in the embarrassing position of refusing to execute it, by a mere notice from the defendant that he has taken an appeal. The only notice the officer is bound to regard, is one proceeding from the same authority that issued the writ. It is the province of the justice to determine whether the appeal is regularly taken, and if so to countermand the execution; if he have issued it: O’Donnell v. Mullin, 3 Casey 199. The constable having no authoritative notice of the appeal was protected by his writ.

This is according to the current of decision in this state, and is essential to the protection of officers proceeding bonfi fide in the execution of their duties.

Judgment affirmed.


author: Mr. Justice Gordon

text:
    Pennsylvania Railroad Co. versus Dale.
    1. In an action by a passenger for injury from collision on a railroad, Held, that evidence might be given that one part of his business “ was dealing in land, that he had a quantity of land on hand, and to show the value of the business and the profits arising therefrom.”
    2. The court charged : “If the plaihtiff, at the time of the injury, was engaged in a legitimate business from which pecuniary profits had arisen, and future profits might reasonably be expected, which business was interrupted or suspended in consequence of disabilities, physical or mental, inflicted by the negligence of the defendant, the loss of such anticipated profits are properly the subject of compensation in damages.” Held, to be correct.
    3. Mere speculative profits are not to be considered; damages in cases of personal injury may be ascertained by the reduction of plaintiff’s earning-powers, mental or physical, and therefore reference is to be had to his business at the time of the accident.
    4. Hanover Railroad v. Coyle, 5 P. F. Smith 396; Penna. Railroad Co. v. Butler, 7 P. F. Smith 335, followed.
    March 26th 1874.
    Before Agnew, 0. J., Sharswood, Mercur and Gordon, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Warren county: No. 357, to January Term 1873.
    This was an action on the case, brought November 24th 1871, by John A. Dale against- The Pennsylvania Railroad Company, to recover damages for injuries which he had sustained in consequence of the collision of two trains of the defendants on their railroad.
    There was no question made as to the liability of the defendants for damages for the injury; the questions were as to the evidence and the elements which should enter into their computation.
    On the trial, March 6th 1873, before Wetmore, P. J., the plaintiff gave evidence of the collision, the manner in which he was injured, the extent of his injury, &c.
    Plaintiff then proposed to show that at the time of the accident, one part of his business was dealing in lands — buying and selling the same; that he had a quantity of lands then on hand; and to show the value of this business at the time of the accident, and the profits arising therefrom.
    The offer was objected to on the ground of being a speculative business, and too indefinite to be ascertained in cash value.
    The offer was admitted and a bill of exceptions sealed.

      The plaintiff then gave evidence in accordance with the offer.
    ■ The defendants’ 4th and 5th points with their answer, are as follows:—
    4. The damages are not to be assessed from the fact that the plaintiff was buying and selling lands, and may or may not have lost an opportunity for a good investment, but must show that he has lost an opportunity to sell or buy, and that the land has depreciated in value so as to cause him a pecuniary loss.
    5. The buying and selling of lands by the plaintiff being principally based on speculative value as oil-producing territory, is of too uncertain nature as a business, having too many contingencies, so as to be a proper basis for any one to determine its value, and therefore the testimony of the plaintiff, relative to his damages in this way, is no evidence that he sustained any actual pecuniary loss, either as to not buying or selling, or the converse, as no one could-' possibly tell whether he might make or lose by the transaction ; it is therefore simply speculative, and not the subject of ascertainment in damages.
    To which the court answered:—
    “ If plaintiff was engaged in buying and selling lands as a business, and in pursuit of that business there were legitimate profits realized, and in consequence of the injuries received he was not able to carry on that business, those profits may be taken into account in determining the question of damages in this suit. If, however, the business was uncertain and speculative, and not attended with any reasonable certainty of profits, then it would not have a pecuniary value to be estimated in this action.”
    The court, in answer to a point of the plaintiff, charged also:—
    “ If the plaintiff, at the time of the injury, was engaged in a legitimate business from which pecuniary profits had arisen, and future profits might reasonably be expected, which business was interrupted or suspended in consequence of disabilities, physical or mental, inflicted by the negligence of the defendant, the loss of such anticipated profits is properly the subject of compensation in damages.”
    The verdict was for the plaintiff for $2500.
    The defendants took a writ of error,- and assigned a number of errors, amongst which the second wras the answer to the defendants’ 4th and 5th points, and the ninth the admission of the evidence objected to by the defendants.

      J. R. Thompson, for plaintiffs in error.

      S. P. Johnson, for defendant in error,
    cited 2 Redfield on Railways 260-262; Penna. Railroad Co. v. McCloskey, 11 Harris 526; Hanover Railroad Co. v. Coyle, 5 P. F. Smith 396; Custis v. Rochester & S. Railway Co., 10 Barb. 282.
   Mr. Justice Gordon

delivered the opinion of the court, May 11th 1874.

If there be anything in this case from which a doubt as to the rectitude of the ruling of the court below might be raised, it would be from the admission of evidence under the defendant’s ninth exception and the answer to its fourth and fifth points. The offer was “ to show that at the time of the accident, one part of the business of the plaintiff was dealing in lands, buying and selling the same; that he had a quantity of land then on hand; and to show the value of the business at the time of the accident, and the profits arising therefrom.” The answer to the points was as follows: “ If the plaintiff at the time of the injury was engaged in a legitimate business, from which pecuniary profits had arisen and future profits might be reasonably expected, which business was interrupted or suspended in consequence of disabilities, physical or mental, inflicted by the negligence of the defendant, the loss of such anticipated profits is properly the subject of compensation in damages.”

Without overruling our own decisions, we cannot say that this admission and answer are wrong. This very point came up in the case of The Hanover Railroad Co. v. Coyle, 5 P. F. Smith 396, wherein it was held that the plaintiff, who was a peddler, might prove the annual amount of his sales and the profit he made thereon, as tending to show the amount he might have earned, had he been able to attend to his business. We apprehend that the profits arising from a legitimate land business are not less certain than those arising from the business of peddling, nor more difficult to estimate.

It is true that merely speculative profits are not to be considered, and against the consideration of such profits the court carefully guards the jury by saying, “ If, however, the business was uncertain and speculative, and not attended with any reasonable certainty of profits, then it would not have a pecuniary value to be estimated in this action.”

The damages in cases like this are to be arrived at by considering the reduction which the accident has wrought upon one’s earning powers, whether mental or physical, or both combined, and in order to do this properly, reference must always be had to the business in which such an one is engaged at the time of the accident. No better rule can be laid down than that adopted by Justice Sharswood, in the case of The Penna. Railroad Co. v. Butler, 7 P. F. Smith 335, in which he says: “ The proper measure of damages is the pecuniary loss suffered by the parties entitled to the sum to be recovered; and that loss is what the deceased would probably have earned by his intellectual or bodily labor in his business or profession during the residue of his lifetime, and which would have gone for the benefit of his children, taking into consideration his age, ability and disposition to labor, and his habits of living and expenditures.” This rule, though immediately applicable to cases brought for damages resulting from the loss of the life of a husband or parent, is nevertheless applicable, mutatis mutandis, not only to the case in hand, but to all similar cases.

Human business is as varied as human wants and human ideas Each one adopts that which suits him best, or from which he can derive the largest profits, and when, by another’s negligence, he is deprived of the power of properly conducting such business, the question of what damages he shall have, by way of compensation, is wholly for the jury. Judgment affirmed.


author: Chief Justice Agnew

text:
    Barnes’s Appeal.
    .1. Execution was issued and delivered to the sheriff July 2d; proceedings in bankruptcy commenced on defendant’s application July 26th, and he was adjudged a bankrupt the same day; the sheriff levied July 29th, and same day the landlord of defendant gave notice that he claimed his rent from the proceeds of sale. Held, that he was entitled in preference to the assignee in bankruptcy.
    2. The rent is a prior charge under the Act of June 16th 1836 (Execution), and the execution is for the benefit of the landlord.
    3. Whenever an execution will carry a valid sale over the assignee in bankruptcy, it carries with it the claim for rent.
    March 26th 1874.
    Before Agnew, C. J., Sharswood, Mercur and Gordon, JJ. Williams, J., at Nisi Prius.
    Appeal by A. H. Barnes, assignee in bankruptcy of George H. Williams, from the Court of Common Pleas of Warren county: Of January Term 1874, No. 283. In the distribution of the proceeds of the sheriff’s sale of the personal property of Williams.
    On the 2d of July 1873, Samuel P. Johnson obtained a judgment in the Court of Common Pleas of Warren county, against Williams, who was then a tenant of E. N. Lacy of a mill property. On the same day an execution was issued on this judgment; the writ went into the sheriff’s hands on the same day. On the 26th of July, Williams filed a petition to be declared a bankrupt, and on the same day he was adjudged a bankrupt. On the 29th of July a levy under Johnson’s execution was made on personal property on the leased premises and on the same day, Lacy notified the sheriff that he claimed to receive from the sale $>630.81 the amount of rent due him. On the 6th of August the goods were sold by the sheriff and after payment of Johnson’s execution there remained $642.14, which was brought into court on the 23d of August; and September 8th, I. S. Alden, Esq., was appointed auditor to report distribution.

      On the 22d of September A. H. Barnes was appointed assignee in bankruptcy of Williams. The auditor, after deducting the expenses of the audit, awarded the remainder to Lacy the landlord in payment of his rent. Barnes, amongst other exceptions, filed the following to the report of the auditor.
    3. The auditor erred in finding that the rent due E. N. Lacy from George H. Williams at time of levy in the above case was a lien on the property sold by virtue of the above writ found on the demised premises; such a lien as was not affected by the proceedings in bankruptcy of George H. Williams.
    4. The auditor erred in finding that E. N. Lacy is entitled to the fund now in court against the assignee of the estate of George H. Williams, bankrupt, for the reason that on the 26th day of July 1873, the time when the said Williams was .declared bankrupt, Lacy had no such lien as gave him the right to the fund realized from the sale of property levied upon July 29th 1873, upon which day notice was first served upon the sheriff by Lacy to retain the amount due him, &c., as per notice filed with report.
    The Court of Common Pleas (Vincent, J.) overruled the exceptions and decreed distribution in accordance with the auditor’s report.
    Barnes appealed to the Supreme Court and assigned the decree of distribution for error.

      Q-. Reeves, for appellant.
    If Lacy had no lien when the proceedings in bankruptcy commenced he could acquire no preference afterwards: In re Wynne, 4 Bankr. Rep. 5; Bump on Bankruptcy 186. A landlord has no lien independently of the Act of June 16th 1836, sects. 83, 85, Pamph. L. 777, 1 Br. Purd. 645, 646, pl. 51, 53; Sands v. Smith, 3 W. & S. 13. A landlord has no lien by virtue of his lease: Singerly v. Fox, 25 P. F. Smith 112. “ Taken by virtue of an execution,” means levied on : Hoskins v. Houston, 4 Penna. Law Jour. 276: Wickey v. Eyster, 8 P. F. Smith 501; Parker’s Appeal, 5 Barr 395; Case v. Davis, 3 Harris 80.

      J. R. Olark, for appellee.
    The property sold was subject to distress for rent, this right was incident to the lease: 3 Bl. Com. 6, note. As long as goods remain on the demised premises the landlord will have the right to distrain, notwithstanding the bankruptcy of his lessee or tenant, and may realize all the arrears due under such distress: Ex parte Burly, 22 L. J. Bank. 26; James on Bankruptcy 93; Butler v. Morgan, 8 W. & S. 54; Ex parte Plummer, 1 Atkyns 103.
   Chief Justice Agnew

The effect of the 83d, 84th and 85th sections of the Act of 16th June 1836, is to create a charge in favor of the landlord for rent not exceeding one years’ upon the goods liable to the distress of the landlord for this rent in and upon the demised premises at the time of taking such goods in execution. After the sale the officer is required to pay the rent first out of the proceeds and apply the surplus only to the execution, and in case of the insufficiency of the proceeds to pay the rent and all the costs, the same costs only shall be allowed as would have to be paid in case of a sale under distress. Moreover after a levy on goods liable to distress the plaintiff in the execution cannot stay proceedings without the consent of the landlord first had in writing. Thus call the charge a lien, or by any other name, it is clear the rent of the landlord is a prior charge by law, and the sale under execution is for the benefit of the landlord. Whenever, therefore, the writ of execution will carry a valid sale over the head of the assignee in bankruptcy, it is evident it carries with it the landlord’s claim for his rent. The state law makes it a valid charge prior to the right of the execution-creditor, so that his precedence over the assignee in bankruptcy necessarily lifts up the precedent rent above him also.

Decree affirmed with costs and appeal dismissed.


author: Mr. Justice Mercur

text:
    Good, Garnishee of Dickinson, versus Grant et al.

    1. P. borrowed $1000 from S. and conveyed to .him land as security. W. recovered judgment against P. in January 1869. S. afterwards conveyed the land to G., who with P.’s consent gave notes to S. for $1100, part of the consideration. These notes being unpaid, W. alleging the money due by G. belonged to P., issued an attachment execution against P., making G. garnishee ; he paid the money into court and pleaded “ nulla bona.” Held, that by paying the money into court G. admitted he owed it; the contest was then between W. and S., the issue should have been formed and tried between them and G. relieved from further costs.
    2. The question was whether S. owed P., and the transactions between them were evidence as they would be in a suit by P. against S.
    3. An attaching creditor occupies no higher position than his debtor.
    4. The fact that W.’s judgment was entered before the sale to G. gaveW. no exclusive equity by reason of its lien, so as to preclude inquiry into distinct transactions between P. and S. '
    5. In attachment the right of the plaintiff to recover does not depend on lien, but upon indebtedness merely.
    6. To pay interest beyond the legal rate is not necessarily fraudulent as to creditors.
    7. Interest at ten per cent, was paid by P. to S. in 1870, the attachment was issued in 1872. Held, that it was too late for P. to recover it back, and the excess could not be recovered in the attachment by W.
    March 26th 1875.
    Before Agnew, C. J., Sharswood, Mercur and Gordon, JJ. Williams, J., at Nisi Prius.

      Error to the Court of Common Pleas of Clinton county: Of July Term 1873, No. 78.
    The proceeding in this case was an attachment execution, issued February 22d 1872, at the suit of P. T. Dickinson, to the use of William G. Grant & Son, against Peter Dickinson, with clause of scire facias to George S. Good as garnishee. The judgment on which the attachment was issued was entered January 30th 1869.
    Samuel Dickinson, on the 7th of June 1870, conveyed to Good, the garnishee, a lot of ground in the city of Lockhaven, and took judgment-notes from Good for part of the consideration; judgments on these notes were entered against Good in favor of Dickinson. Good paid part of the amount as it became due; the plaintiffs alleging that the money secured by the notes was in fact due to Peter Dickinson, the defendant, issued this attachment execution. The garnishee on the 11th of March 1872, paid the remainder of the money into court, and afterwards pleaded nulla bona.

    This attachment execution was tried May 21st 1873, before Mayer, P. J., for the purpose of determining whether any portion of the money in court belonged to Peter Dickinson.
    For plaintiffs Good testified that he made a verbal bargain with Peter Dickinson for the lot for $1500. Peter then owed witness about $400; this was taken out of the consideration money, and he was to pay the $1100 remaining to Samuel Dickinson. At the time of the bargaining for the lot, Peter represented that it was owned by Samuel.
    Samuel Dickinson testified that Peter had sold to him the lot and conveyed it by deed dated April 27th 1865, and delivered in July; witness lent to Peter $1000 in October 1864, for which Peter gave his note at four months, and the lot was conveyed to witness as collateral security for the money lent. When this note became due it was renewed for six months more; at the end of that time, August 1st 1865, another note drawn by Peter Dickinson and P. T. Dickinson, payable in one day, for $1024.15, was given to witness for the second $1000 note; it was agreed that Peter should pay interest at the rate of 10 per cent, per annum for the $1000 loan. Witness was to receive the $1100, the balance of the purchase-money; Peter gave witness a note for the $400, which had been deducted from the purchase-money as owing to Good; the balance of the purchase-money, after deducting the $400, would not pay witness the amount of his loan to Peter.
    The garnishee made the following offers of evidence, which were all rejected, and several bills of exception sealed:
    “To prove, that on the 1st of July 1870, in addition to the other indebtedness of Peter Dickinson to Samuel Dickinson, the said Peter Dickinson was indebted to Samuel Dickinson in the sum of $400, with interest from July 15th 1857, and for which Samuel Dickinson Held the note of Peter Dickinson, and which is still unpaid.
    “To prove that, on the 1st of July 1870, Peter Dickinson was indebted to Samuel Dickinson in the amount of fill, borrowed of Samuel Dickinson in 1869, and which amount was in addition to his former indebtedness, and which is still unpaid.
    “ To prove that when the deed was made from Samuel Dickinson to George S. Good, garnishee, a statement of the purchase-money received by Samuel Dickinson was credited upon the note he held against Peter Dickinson and P. T. Dickinson, and credited by the hand of Peter Dickinson, according to previous agreement with Samuel Dickinson, in first deducting from the amount of the purchase-money 10 per cent, interest on the loan from October 1864; and that at the time Samuel Dickinson did not know that there was a judgment against Peter Dickinson anywhere.
    “ To prove that Samuel Dickinson, in taking care of this lot of ground, and selling the same to George S. Good, incurred expenses to the amount of f50.”
    The defendants gave in evidence the following statement, made by Peter Dickinson, of the transactions as to the loan by Samuel Dickinson to him:'
    “ S. D. held note of P. D. & P. T. D. for - $1024.15 On which we have agreed to pay 10 per cent.
    Say 5 years, 5 months interest, - 554.80
    Endorsed on his note, ----- 545.20 $1100.00
    Interest cast up 1st July 1870.” ■■■
    The court, after referring to the sale to Good, the consideration, &c., charged:—
    * * * “ When the money became due, the court directed the garnishee to pay the money into court; and this attachment in execution is now being tried for the purpose of determining whether any portion of the money paid into court is the property of said Peter Dickinson. It appears from the testimony of Samuel’Dickinson that a deed was executed and delivered to him by Peter Dickinson, for this lot of ground, to be held as collateral security for the sum of one thousand dollars loaned by the former to the latter, in the year 1864. This, in law, would amount to nothing more than a mortgage. The judgment of Grant & Son was entered prior to the sale by Samuel Dickinson to Good, and would be a lien upon any interest that Peter Dickinson might have in the lot of ground. Out of a sale of the lot Samuel Dickinson could not claim more than the $1000, loaned by him to Peter Dickinson, with interest from October 1st 1864 to July 1st 1870. After allowing to Samuel Dickinson the full amount of his claim, viz.: one thousand dollars and the interest, there would remain a balance, out of the proceeds of the sale of the lot, of $158.17. We are of the opinion that the plaintiffs are entitled to recover this amount, and we therefore instruct the jury to find a verdict for the plaintiffs for the sum of $158.17.”]
    The verdict was for the plaintiffs for $158.17.
    The garnishee took a writ of error. He assigned for error the rejection of the offers of evidence and the part of the charge in brackets.

      C. 6r. Furst, for plaintiff in error.
    Garnishee must make the same defence which defendant in the execution could make or he will be responsible: Baldy v. Brady, 3 Harris 108. Samuel, Dickinson’s conveyance to Good may be treated as an assignment of the mortgage; not recording a defeasance makes an estate absolute to every one except the original parties or their heirs : Harris v. Phillips’s Academy, 12 Mass. R. 466 ; Jaques v. Weeks, 7 Watts 279. An attachment execution derives no power from the lien of the judgment; it may issue after the lien has expired: Ogilsby v. Lee, 7 W. & S. 445. Proceeding by attachment affirmed the sale: Bank v. Macalester, 9 Barr 479. The plaintiffs in the attachment stood in the shoes of their debtor as against the garnishee: Baldwin’s Estate, 4 Barr 248 ; Riddle v. Etting, 8 Casey 413 ; Woodhouse v. Commonwealth Insurance Co., 4 P. F. Smith 309 ; Dougherty v. Hunter, Id. 383; Myers v. Baltzel, 1 Wright 493.

      Q. J. McCormick, for defendants in error.
    The conveyance to Samuel Dickinson being only a mortgage, it was an unrecorded mortgage, and secured to its holder no greater benefits than an ordinary unrecorded mortgage would secure ’to him. This being true, the moment that Grant & Son’s judgment was entered it became a lien prior to that of the Samuel Dickinson unrecorded mortgage: Friedley v. Hamilton, 17 S. & R. 70; Manufacturers’ and Mechanics’ Bank v. Bank of Pennsylvania, 7 W. & S. 335.
   Mr. Justice Mercur

delivered the opinion of the court, May 11th 1874.

This case seems to have been tried in a very irregular manner. The defendants in error issued an attachment execution against the plaintiff in error as garnishee of Peter Dickinson. At this time Samuel Dickinson held several judgments against Good. He admitted his indebtedness upon them. The court say in their charge, “ when the money became due the court directed the garnishee to pay the money into court, and this attachment execution is now being tried for the purpose of determining whether any portion of the money paid into court is the property of said Peter Dickinson.” The contest then really was between the defendants in error as attaching creditors of Peter Dickinson as one party, and Samuel Dickinson as the other party. The issue should have been formed and tried between them. By paying the motey into court, Good admitted his liability to pay the judgments; although it is said the “ court directed ” him so to pay it in, we will not assume this direction to have been made without his request. The garnishee should then have been relieved from further costs. The contest should have been carried on in form, as it was in fact, between the two parties claiming the fund. Being then in fact a question between the two claimants of the fund, it raised and directly involved the question, whether Samuel Dickinson was indebted to Peter Dickinson. The right of the defendants in error to recover depended upon their establishing that Samuel was so indebted. This necessarily led to an inquiry into the business transactions between Peter and Samuel, to ascertain whether, upon the whole, Samuel was indebted to Peter. As there is no proof of any intentional fraud 'between Peter and Samuel, the same evidence should have been received as in a suit brought by Peter against Samuel. The attaching creditor occupied no higher ground than Peter would have done. The learned judge appears to have thought the attaching creditor possessed peculiar equities arising from the fact that his judgment was entered while there was a right of redemption in Peter; and that this precluded an inquiry into other distinct transactions. We are not able to see that any such exclusive equities spring from the lien of the judgment. If the fund in court had been raised by a sheriff’s sale of the real estate, then the question of the lien of the judgment would have been important. In this proceeding by attachment, the right of the defendants in error to recover, does not rest upon the lien, but simply upon the indebtedness. If the judgment had never been a lien on this land, or if the lien had been lost by lapse of time, the rights of the attaching creditor upon it would have been the same.

To pay interest in excess of the legal rate is not necessarily fraudulent as to creditors. To enable the party who has paid it to recover back, the statute requires his action to be brought within six months after it was paid. In an actual good faith transaction between the parties, the attaching creditor has no greater rights than the party paying such excess. Therefore, if the payment of interest was actually so made in July 1870, this attachment which issued in February 1872, was too late to recover it back. The court therefore erred in instructing the jury to find the excess of interest in favor of the plantiff below. The errors assigned are sustained.

Judgment reversed, and a venire facias de novo awarded.


text:
    Corley et al. versus Pentz.
    1. The plaintiff made a contract with defendant to take timber from plaintiff’s land; defendant entered to cut the timber; plaintiff remaining in possession and alleging that the contract was fraudulent, &e., brought ejectment. Held, that the plaintiff being in possession, he could not maintain ejectment.
    2. The return of the sheriff to the writ in ejectment is only primS facie evidence of defendant’s possession and if his evidence rebuts it, he is entitled to a verdict.
    March 26th 1874.
    Before Agnew, C. J., Sharswood, Mercur and Gordon, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Clearfield county: No. 92, to January Term 1874.
    This was an ejectment brought November 29th 1870, by Andrew Pentz against William Corley, William C. Smith and others, for ninety acres of land in Brady township, “ being that part in timber and not yet cleared of the tract of one hundred and thirty-nine acres, where the said Andrew Pentz lives,” &c.
    ' The case was tried November 19th 1872, before Mayer, P. J.
    The plaintiff’s title was admitted; he then gave the writ in evidence and rested.
    The defendants gave in evidence an article of agreement, dated November 27th 1865, between plaintiff and William C. Smith, one of defendants, by which the plaintiff leased to Smith ten acres of ground in Brady township, &c., on which “ Smith intends to erect a steam saw-mill; said lease is to run for the full term of twenty years.” Plaintiff further agreed to put in all timber suitable for merchantable lumber “ now being or growing on his lands in Brady township, the whole containing about ninety acres, which timber is to be put into said steam-mill;” Smith to pay $Í00 for the lease of the ten acres, and to deliver, to plaintiff at the mill one-half the lumber manufactured from logs delivered by plaintiff there; plaintiff to permit Smith to take from ahis said lands” timber for the erection of the mill, stables, &c., free of charge. There were other stipulations in the agreement not necessary to notice. By an agreement dated October 8th 1869, Smith and others leased to Corley certain pieces of land; also the timber-right under the foregoing agreement with the plaintiff.
    The defendants gave evidence of the tender of $100 to the plaintiff, as the amount to be paid for the lease of the ten acres ; they also gave evidence that they had been prevented by plaintiff from entering on the land mentioned in plaintiff’s agreement to erect a mill, and afterwards bought a lot of land adjoining plaintiff’s, on which they erected their saw-mill. Corley entered upon the ninety acres and commenced cutting timber, which was sawed at defendants’ mill, and he requested plaintiff to go and divide the boards.

      The plaintiff in rebuttal gave evidence that the agreement for the lease of the ten acres was in consideration of $100 per annum ; that its.contents were misrepresented by Smith, and other circumstances, for the purpose of showing that his execution of it was procured by fraud, &c. He gave evidence also of entry by defendants on his land, of their cutting timber, &c.
    He testified that at the time the action was brought he was in possession of the land, and had lived on it for twenty-six years.
    There was much evidence given on both sides, of the circumstances, of making the contract and of its execution; also of carrying it out by the defendants.
    Defendants made a number of offers of evidence which were rejected by the court and bills of exception sealed. They also submitted a number of points. The sixth was:—
    “As the plaintiff, at the time he brought suit, was in possession of the-premises described in the writ, the verdict of the jury must be for the defendants.”
    To this point the court answered:—
    “ The evidence of William Corley shows that he entered upon the land of the plaintiff for the purpose of cutting the timber to stock the mill, and did cut a portion of the timber prior to the institution of this suit. This, we are of the opinion, would be sufficient to authorize the bringing of an action of ejectment, and we therefore answer this point in the negative.”
    The verdict was for the plaintiff.
    The defendants removed the record to the Supreme Court, and assigned a number of errors; the fifth was the answer to defendants’ sixth point.

      Gr. R. Barrett, for plaintiffs in error.
    A plaintiff cannot maintain ejectment for land of which he .is in possession : Act of March 21st 1806, sect. 12, 4 Smith’s L. 332, 1 Br. Purd. 531, pl. 1; Parish v. Stevens, 3 S. & R. 299 ; Waln v. Shearman, 8 Id. 361; Cooper v. Smith, 9 S. & R. 26; Gratz v. Benner, 13 Id. 111; Dietrick v. Mateer, 10 Id. 152; Kribbs v. Downing, 1 Casey 399; Rynd v. Rynd Farm Oil Co., 13 P. F. Smith 403; Narehood v. Wilhelm, 19 Id. 64.

      J. B. MeJEnally, for defendant in error.
    There need not be a total ouster; the intruder may claim the timber and not the soil: Cooper v. Smith, 9 S. & R. 26. The answer of the court to the sixth point is sustained by Rynd v. Rynd Farm Oil Co., 13 P. F. Smith 403; Narehood v. Wilhelm, 19 Id. 64; Lane v. Harold, 16 Id. 320; Cooper v. Smith, supra.

   Mr. Justice Sharswood

delivered the opinion of the court, May 11th 1874.

It is quite unnecessary to consider the several assignments of error in this case, as there is one point entirely decisive in this cause. The plaintiff below had clearly mistaken his remedy; admitting his whole case, his proper action was trespass quare clausum fregit, and not ejectment. His own testimony was that he was in possession of the land the day this action was brought — had lived on it twenty-six years. There was nothing in the evidence which cast any doubt upon this fact.' The defendant was entitled to an affirmative answer to his sixth point, that as the plaintiff, at the time he brought suit, was in possession of the premises described in the writ, the verdict of the jury must be for the defendant. The decided cases following the form of the writ of ejectment provided by the Act of March 21st 1806, 4 Sm. Laws 382, that the said defendant “now hath in his actual possession” the tract of land, &c., are uniform and without exception. The return of the sheriff is primá facie, and only primá, facie evidence of the possession of the defendant, and if the evidence rebuts it, he is entitled to a verdict in his favor: Cooper v. Smith, 9 S. & R. 26 ; Dietrick v. Mateer, 10 Id. 151; Gratz v. Benner, 13 Id. 110; Kribbs v. Downing, 1 Casey 399; Rynd v. Rynd Farm Oil Co., 13 P. F. Smith 397; Narehood v. Wilhelm, 19 Id. 64.

Judgment reversed.


text:
    Watson versus Rynd et al.

    1. Under 3d sect, of Act of March 29th 1824 (Timber), one cutting timber on another’s land and converting it, is liable to treble damages, although done without knowledge that it was not on his own land.
    2. The want of the owner’s consent creates the liability of the trespasser.
    3. It is incumbent on the person cutting, to ascertain where the line was ; or to delay cutting until it was settled.
    4. O’Reilly v, Shadle, 9 Casey 489, followed.
    March 26th 1874.
    Before Agnew, 0. J., Sharswood, Merour and Gordon, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Warren county: Of January Term 1874, No. 203.
    This was an action of trespass quare clausum fregit, for cutting and carrying away timber and timber trees contrary to the Act of Assembly. The writ was issued February 17th 1871, at the suit of L. F. Watson against Benjamin Rynd and others, under the 3d section of the Act of March 29th 1824, 8 Sm. Laws 283, 2 Br. Purd. 1397, pi. 2. The section enacts “ that in all cases where any person * * * shall cut down or fell * * * any timber tree or trees growing upon the land of another, without the consent of the owner, he * * * shall be liable to pay to such owner double the value of such tree or trees * * * or in case of the conversion thereof to the use of the offender, treble the value thereof, to be recovered with costs of suit, by action of trespass or trover as the case may be.”
    The plaintiff was the owner of a tract of timber-land in Warren county, being warrant No. 3049. The defendants owned the adjoining tract, warrant No. 2229, also timber-land; in cutting timber on their own land? the defendants went beyond their line and cut timber on the plaintiff’s land without his consent and converted it to their own use.
    The foregoing facts appeared on the trial, September 14th 1872, before Wetmore, P. J.
    The defendants’ point and the answer were as follows :—
    Point: “ If the jury believe that the defendants cut and hauled off the timber claimed in this case, under the honest belief that they were the owners of the land, there can be no recovery for more than the actual value of the timber. It is not a case for treble damages.”
    Answer : “ The point of defendants is affirmed for the reason, the court thinks, that the rule stare decisis should prevail in the Court of Common Pleas where it can be done. This view of the Act of Assembly was adopted in a case in this court. Without expressing our own independent opinion we conform to the former decision.”
    The verdict was for the plaintiff for $225, “ single damages.”

    The plaintiff obtained a rule to show cause why the court should not treble the single damages found by the jury.
    The court discharged the rule, saying :—
    “ We decline to treble the damages found by the jury in this case,' for the reason given on the trial in answer to the 1st point of defendants. This is done to preserve consistency in our decisions as applied to the question of damages. Judge Johnson decided, as we are informed, a case in this court and another in Elk county, in accordance with the answer to the first point of defendants.”
    The plaintiff took a writ of error and assigned for error the answer to defendants’ point, and refusing to treble the damages found by the jury.

      W. P. Brown, for plaintiff in error,
    cited O’Reilly v. Shadle, 9 Casey 489; Hughes v. Stevens, 12 Id. 320; Welsh v. Anthony, 4 Harris 254.

      B. Brown, for defendants in error.
    When double or treble damages are awarded by statute it is if the act is wilful: Sedgwick on Damages 455. He cited also Young v. Herdic, 5 P. F. Smith 176; Craig v. Kline, 15 Id. 400.
   Mr. Justice Gordon

delivered the opinion of the court, May 18th 1874.

If anything other than the Act of 1824 itself were wanting to show that the court below erred in refusing to treble the damages, found by the jury in this suit, it may be found in the case of O’Reilly et al. v. Shadle, 9 Casey 489. In that-case it was expressly decided that the want of knowledge on the part of the trespasser did not relieve him from the penalty imposed by the third section of the act. And the intention of the legislature is therein pointed out by calling attention to the significant fact that the words knowing the same to be growing or standing upon the lands of another person,” used in the second section, which makes the cutting of such timber a criminal offence, are omitted in the third section, which provides for the civil remedy alone.

The want of the owner’s consent is that which makes this part of the act effective. The significance of this omission is further added to by the wording of the first section of the Act of 1840, wherein the penalties of the third section of the Act of 1824 are extended to “ any person or persons who shall purchase or receive any timber tree or trees knowing the same to have been cut or removed from the lands of another person without the consent of the owner or owners thereof.” Here we see, as it would be obviously unjust to impose a penalty upon an innocent purchaser, the act is operative only where there is knowledge of the guilty cutting or removal of the timber. We may therefore conclude with certainty that these words were intentionally omitted in the third section of the Act of 1824.

The design of the statute was to prevent trespassing upon timber lands, and it has proved itself to be very valuable for that purpose. We do not, therefore, feel ourselves constrained to impair its provisions by any novel construction, and thus unsettle the uniform convictions of the bench and bar with reference to them.

The timber lands of this state have heretofore been regarded as a permanent and secure investment, owing to their steady advancement in value. Hence, the mere price of stumpage has not, as a rule, been regarded as a full compensation to the owner for the loss of his timber. Indeed three times such price will often not more than compensate him for his loss and the vexation and expense of a lawsuit. Beside this, it is in this country, generally supposed that persons have a right to enjoy their honest acquisitions without molestation, and if any one chooses to trespass upon them, he must take the consequences.

In this case it is said that the trespass of Rynd was unintentional ; that some one showed him the line run by Ludlow in 1850, as the true line between the two tracts, and being thus misled, he cut to that line. But we do not understand that it was the plaintiff that showed him this line, or that he ever consulted the plaintiff about it. He certainly knew that the line to which he cut was not the warrant line; it was far too young for that. It was his duty, therefore, to ascertain from the owner of the adjacent tract, whether or not that was the line to which he claimed, and if not, to delay his cutting until the matter could have been properly settled. It seems to us that this is what one, who was anxious about the rights of his neighbor, would have done.

We may here observe, that the cases of Young v. Herdic, 5 P. F. Smith 176, and Craig v. Kline,. 15 Id. 400, cited by the defendants’ counsel, have no bearing upon this case, inasmuch as they involve the common-law rule of assessment of damages, and not that arising under the statute. It follows from what has been said, that the court erred in discharging the plaintiff’s rule. The jury having found single damages, the court should have trebled them.

And now, May 18th 1874, the judgment of the Court of Common Pleas of Warren county is reversed, and judgment is now entered upon the verdict in the sum of six hundred and seventy-five dollars, that being treble the amount of the single damages found by the jury, with interest thereon from the 14th day of September 1872. The record is remitted to said court for execution.


text:
    Satterlee versus Melick & Eves.
    1. Melick employed Satterlee to saw logs into lumber; Satterlee delivered to Melick less lumber than the logs produced; there was no evidence of conversion by Satterlee. Held, that Melick could not recover in assumpsit on the common counts for the deficiency.
    2. The court charged: that as bailee, Satterlee was bound to exercise such care of the property as a prudent man takes of his own property, and if for want of it the lumber was lost, he would be liable; that the deficiency made a primfi, facie case and put Satterlee on proof of care. Held to be error, the action not being in case and there being no count on a contract to keep as bailee.
    3. Generally where there is evidence of conversion by a wrongdoer, the plaintiff may waive the tort and sue in assumpsit.
    4. To recover in such case on a count for goods sold, &c., there must be fraud or unfair dealing, or other circumstances from which an implication may arise under such a count.
    5. Deysher v. Triebel, 14 P. P. Smith 383, distinguished.
    March 27th 1874.
    Before Agnew, C. J., Sharswood, Mercur and Gordon, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Olinton county: No. 42,. to July Term 1873.
    This was an action of assumpsit, brought May 8th 1868, by Jacob D. Melick and Joseph Eves, trading, &c., as Melick & Eves, against O. D. Satterlee.

      The declaration was for money lent, money paid, laid out and expended; money had and received; work and labor and materials found and provided; goods sold and delivered, and account stated. There were no special counts. The pleas were non-assumpsit and payment, &c.
    The case was tried December 18th 1872.
    The plaintiffs gave evidence that they were engaged in cutting logs in Clearfield county; the logs were floated down the Susquehanna to the booms at Lock Haven or Williamsport. The defendant lived at Lock Haven, and had a saw-mill there. Plaintiffs made an arrangement with him to saw their logs which stopped at the Lock Haven boom, at $4 per thousand feet. Defendant received a large number of logs from plaintiffs. The amount of lumber passed from them to him was 316,992 feet.
    They gave evidence also that they had sold all this lumber to J. M. Bowman; defendant delivered to him as the lumber sawed for plaintiffs, 286,034 feet, and no more, being 30,958 feet less than the amount sawed. Plaintiffs demanded the remainder of the lumber from defendant, who told them that all their lumber was gone. There was no other evidence of negligence on the part of the defendant, nor of conversion by him.
    The defendant gave evidence for the purpose of showing that he had exercised proper care and diligence as to the lumber; also that lumber generally falls short from 1 to 5 per cent, in the count, when taken away; some is broken and some worthless; “ there is a continual waste and leak; neighbors help themselves,” &c.
    The court instructed the jury: “ [That the defendant was a bailee of the lumber in question; and after it was sawed into boards and piled in the yard, he was bound to the exercise of the same care over it as a prudent business man ordinarily takes of his own property similarly situated. If for want of such care the plaintiff’s lumber, or any portion of it, was lost, the defendant would be liable for it.] If, however, the ordinary per cent, of waste, and the losses resulting from causes against which such care as defendant was bound to exercise, would not guard, will account for the whole or any portion of the deficiency claimed for in this case, the jury should give the defendant the benefit of it.
    [“ No other proof of negligence or conversion has been given in this case than that which grows out of the proof of the quantity of lumber sawed and the quantity delivered. This, however, makes a prima, facie case, and puts defendant on proof of the care exercised.]
    [“We are not without doubt as to whether under a count for goods sold and delivered, or money had and received, a recovery ought to be permitted on the evidence in this case, but we instruct you that the narr. is sufficient, and that the case is for you upon the evidence.”]

      The verdict was for the plaintiffs for $657.99. The defendant took a writ of error,- and assigned for error the parts of the charge in brackets.

      S. I). Ball and S. Linn, for plaintiff in error.
    No recovery for loss of property bailed can be had in assumpsit on the common counts, unless it be by the conversion of the property by the bailee himself; the fact of conversion being a question to be submitted to and found by the jury. For loss by carelessness or negligence a bailee cannot be held accountable in assumpsit. The court should have charged the jury as to the proper question raised by the pleadings: Harrisburg Bank v. Forster, 8 Watts 12; Reeves v. Delaware, L. & W. R. R., 6 Casey 454; Pennsylvania R. R. v. Berry, 18 P. F. Smith 272.

      O. J. MaQormich (with whom was William Q. Kress), for defendants in error.
    The action under the evidence may be sustained on the common counts: Lee v. Gibbons, 14 S. & R. 111; Gray v. Griffith, 10 Watts 433; McCullough v. McCullough, 2 Harris 296; Deysher v. Triebel, 14 P. F. Smith 383.
   Mr. Justice Sharswood

delivered the opinion of the court, May 11th 1874.

This was an action of assumpsit. The declaration contained counts for goods sold and delivered, work and labor done, the common money counts, and on an account stated. The plaintiff’s case was, that he had sent a certain number of logs to the defendant, who owned and operated a saw-mill, to be sawed. He undertook to. show that he received only a part of the lumber from the defendant after it had been sawed, leaving some thirty thousand feet and more unaccounted for. The learned judge below, in his charge to the jury, treated the case as though it had been an action against a bailee for negligence, either ex contractu or ex delicto. He instructed the jury that such a bailee as the defendant was bound to exercise the same care over the property intrusted to him as a prudent man ordinarily takes of his own property similarly situated; that if, for want of such care, the plaintiff’s lumber,-or any portion of it, was lost, the defendant would be liable for it, and that no other proof of negligence or conversion had been given than that which grows out of the quantity of lumber sawed and the quantity delivered; this, however, made out a primd facie case, and put the defendant on proof of the care exercised. This might have been a true statement of the principles of law had the declaration warranted it. If it had been an action on the case for negligence, or had there been a count upon a contract to keep as bailee, it might have been all well. But what notice had the defendants to come prepared to meet the question of negligence, by which the lumber was lost ? On an amendment of the narr. below they would have been entitled to a continuance. The learned judge was evidently not very clear in his opinion, for in his charge, he said: “We are not without doubt as to whether under a count for goods sold and delivered, or money had and received, a recovery ought to be permitted on the evidence in this case, but we instruct you that the narr. is sufficient, and that the case is for you upon the evidence.” One of the objections to the practice of trying cases on the general issue is, that the plaintiff cannot discover in general before he comes to trial what defence he will have to encounter. It would be still worse if the defendant were obliged to go to trial without knowing, at least, the general character of the claim upon him. It is evidently true, that in many cases, the owner of goods wrongfully taken or detained by another, may waive the tort and recover on a count for money had and received in assumpsit. But then there must either be some evidence that goods have been actually converted into money by the wrongdoer, or the circumstances must Be such as to raise a presumption that he has done so. The leading case on this subject is Longchamp v. Kelly, Dougl. 187. That was the instance of a masquerade ticket which the defendant received to sell for the plaintiff. He neither accounted for the price nor returned the ticket. Lord Mansfield and the Court of King’s Bench held, that it was a fair presumption that he had sold it, and that the plaintiff could recover under the count for money had and received. To the same point may be cited our own cases of Willet v. Willet, 3 Watts 277; Gray v. Griffith, 10 Id. 483; McCullough v. McCullough, 2 Harris 295. The defendant in error relies upon the decision in Deysher v. Triebel, 14 P. F. Smith 383, to support the contention that a recovery might Be had upon the count for goods sold and delivered. But that opinion does not sustain him. There must be some fraud, unfair dealing, or other circumstances, from which an implication may arise under such a count, as if a coal merchant, by the mistake of his driver, empties a ton at my door, and I take it without inquiry or objection, and consume it, "knowing that it must have been sent by mistake, it may be that a recovery could Be had against me in assumpsit under a count for goods sold and delivered, upon an implied promise to pay the market price. It is evident that conversion or consumption was essential; a mere detention, or a loss even by negligence would not have been enough to charge him in this form of action. There must be something from which to presume that he assumed the ownership as vendee.

Judgment reversed, and venire facias de novo awarded.