text:
    Alexander versus Weidner.
    1. The Acts of 24th February 1806 and of 15th April 1856, both expressly require that there shall be a request by one or the other of the parties to an action before the judge’s charge can become a part of the record, and where on the trial below the defendant put certain points to the court in writing, to the answers to which he did not except and the plaintiff did, and the answers of the court were filed, but the record did not show that they were filed at the request of either party, they are no part of the record on which the defendant can assign error, and he cannot avail himself of the exceptions of the opposite party.
    2. The Act of 17th April 1856, the third section of which requires the court to charge the jury on particular points of law, &c., at the request of either party, is not a general law and applies only to the courts of the Sixth Judicial District.
    3. The legislation requiring that the charge of the court be reduced to writing and filed at the request of counsel, and the judicial interpretation of this legislation reviewed and commented on by Shaeswoob, J.
    October 18th 1876.
    Before Agnew, 0. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Wieliams, J., absent.
    Error to the Court of Common Pleas of Clarion county: Of October and November Term 1876, No. 86.
    This was an action of assumpsit, brought by M. A. K. Weidner against William T. Alexander, to recover one-half the amount of a note made by Brown and Galey to the order of Alexander. •
    On the trial before Jenks, P. J., the defendant submitted two points, both of which the court affirmed, but the first with a-qualification.
    To these answers of the court the plaintiff excepted, but the defendant did not. The verdict was for the plaintiff, and judgment was entered thereon.
    The defendant took this writ, and the error assigned was the qualification in the affirmance of his first point.
    It appeared that the points of defendant and the answers thereto were filed with the record, but there was nothing contained therein to show that they were filed at the request of either party to the action.

      Corbett Clarice and Knox Maffett, for plaintiff in error.—
    The Act of 24th of February 1806 (Pamph. L. 334) provided: “ If either party, by himself or counsel, require it, it shall be the duty of-the said judges, respectively, to reduce the opinion so given, with the reasons therefor, to writing, and file the same of record in the cause. Under this act it was necessary that a request to file the charge appear of record: Lancaster v. De Normandie, 1 Whart. 49; Bratton v. Mitchell, 5 Watts 71, overruling Brown v. Caldwell, 10 S. & R. 114, 115.” By the Act of 15th of April 1856 (Pamph. L. 337), it was provided as follows: “ The president judges of the several Courts of Common Pleas of this Commonwealth shall, in every case tried before them, respectively, at the request of any party or attorney concerned therein, reduce the whole opinion and charge of the court, as delivered to the jury, to writing, at the time, of the delivery of the same, and shall forthwith file the same of record.” 'It is evident that this latter act entirely dispensed with the necessity of having it appear of record that the filing of the opinion, or charge, was at the request of one of the parties or counsel. The repetition of the verb “shall,” in the latter member of the sentence, dispenses with any request to file of record. In this case the court was requested to charge on certain points, in writing, which they did, and filed the same of record. In addition, plaintiff excepted to the answer, and the court sealed a bill of exceptions and filed their answer, with the. points and such bill of exceptions. Under either of the acts before cited, if the charge be placed on record at the instance of either party, either may assign error. Here the bill of exception would amount to a request to file. The judge, delivering the opinion of the court, is not bound to file his whole charge. Iiis answer to the' points is enough: Reigart v. Ellmaker, 14 S. & R. 124; Munderbach v. Lutz, Id. 125; Bitzer’s Executor v. Hahn, Id. 240. " Written points presented by counsel, and answers of the court filed in the cause, become part of the record, and may be assigned for error: Wheeler v. Winn, 3 P. F. Smith 122.

      Wilson Jenhs, for defendants in error. —
    No exception was taken by the plaintiff in error to the charge of the court, nor to the qualification to the answer to the point submitted, and no notice should be taken of it in a court of error: Moreland Township v. Davidson Township, 21 P. F. Smith 371; Holden v. Cole, 1 Barr 303.
   Mr. Justice Sharswood

delivered the opinion of the court, October 30th 1876.

The Act of Assembly of February 24th 1806, Pamph. L. 334, entitled “ An act to alter the judiciary system of this Commonwealth,” with another which followed close upon its heels, the Act of March 21st 1806, Pamph. L. 558, entitled “ An act to regulate arbitrations and proceedings in courts of justice,” were intended by that legislature to inaugurate a new administration of justice, in which the profession of the law might be entirely dispensed with, and every man be his own lawyer and conduct his own suits. It need not be said that it entirely failed to secure its main object, and that the only class of men benefited by it was that at whose business it was aimed. An abundant harvest of litigation followed, and its deleterious influence has left many marks upon our jurisprudence which still remain to impede and embarrass the speedy and regular course of justice in civil proceedings. “ Of the object of these acts,” says Chief Justice Gibson, in Wike v. Lightner, 1 Rawle 290, “ those who remember the temper of the times can best judge.” Speaking of the 25th section of the Act of February 24th 1806, to be presently referred to, Mr. Justice Duncan, in 1828, remarked in Brown v. Caldwell, 10 S. & R. 114: “ The act making it the duty of courts, on the request of either party, to reduce their opinion with the reasons to writing and file it of record, has been found very inconvenient in practice, however beautiful in theory; and though the provision appears, on first sight, very simple, yet experience has shown it to be not a little complex. It has instead of easing the suitor proved a source of vexation, perplexity and delay, and sometimes of actual injustice. It requires legislative interposition, either by its total abolition or pruning many of the luxuriant branches which have grown from it and choked the progress to the termination of controversies. The bill of exceptions, its form, its bearing, were well understood and quite adequate to spreading on the record all legal points decided by the courts in their instructions to juries.” So Chief Justice Tilghman, in Reigart v. Ellmaker, 14 S. & R. 124, speaking of the same section, observed: ££ This provision, though undoubtedly intended for a good purpose, has produced consequences of which the legislature was not aware when it was passed. It may have done some good, but on the whole it is the general sentiment that it has caused much trouble, expense and delay, and thrown many obstructions in the way of a speedy and fair administration of justice.” The opinions of these very eminent jurists, however, have produced no effect upon the legislature. Not only does the Act of 1806 stand unrepealed on the statute book, but it has been extended by the Act of April 15th 1856, Pamph. L. 337, so as to require that the president judge, ££ at the request of any party or attorney concerned, shall reduce the whole opinion and charge of the court as delivered to the jury to writing at the time of delivery of the same, and shall forthwith file the same of record.” This had been held by this court not to be required by the Act of 1806, in Reigart v. Ellmaker, 14 S. & R. 121, and Munderbach v. Lutz, Id. 125. It will not add much to the weight of these opinions to say that I entirely concur with them, but I may be permitted to add that I sat for nearly twenty-three years in a court to which these acts were held not to apply. During all that time I never filed a written opinion or charge, nor was there ever found to be any necessity for it; the old well known remedy by bill of exceptions, via trita, via tuta, administering ample remedy to the suitors against the mistakes of the court upon points of law.

These two Acts of 1806 and 1856 both expressly require that there should be a request by one or other of the parties before the judge’s charge can become a part of the record. In Brown v. Caldwell, 10 S. & R. 114, this court held that this request need not appear of record, because, where the1 opinion signed by the judge is on file, the court could not suppose that it was his own voluntary, officious act, without request of either party, but must presume it to be his official act done by request at the time. It matters not which party requested it. It is of record, and consequently the subject of revision. This case was, however, overruled by 000Lancaster v. De Normandie, 1 Whart. 49, in which it was held that this court will not consider any paper annexed to the record as furnishing the opinion of the court below, under the Act of 1806, unless it a0lso appear by the record that the paper was filed at the request of one of the parties or of his counsel. The vexation and inconvenience of the practice, so faithfully depicted” (in Brown v. Caldwell), said Chief Justice Gibson, “ subsequently forced the court in various instances to exact a rigid compliance with the requirements of the act, and settle the practice differently.” As the act authorizes nothing which it does not enjoin, when there has been no request it gives no authority to put the matter on the record at all. It never was intended to permit the judge to set before the parties gratuitous incitements to appellate litigation, by exposing on the record errors which had escaped their notice at the time. Even restrained to its legitimate uses, the .proceeding has been found sufficiently prolific of vexatious and unprofitable contest. By the express terms of the act the judge has authority to file his opinion of record, but at the request of a party desiring to have advantage from it; and when he does it of his own head he makes nothing matter of record which was not so before.” This point, say the court in Bratton v. Mitchell, 5 Watts 71, “ is not now open to question.”

It has been urged that the Act of 1856, by the repetition of the word “ shall” before the word file,” dispensed with any request to file, and that this difference between the words of that act and those of the Act of 1806 was designed by the legislature. We cannot perceive any plausibility, much less force, in this contention. The preliminary request limits the entire sentence; but if it were so, it certainly would not avail, according to the authorities, unless the request to reduce to writing also appears of record. The learned counsel appears to think that an exception’ amounts to a request to file. That would be pushing construction beyond all reasonable limits, and it would be much better to return to the overruled doctrine of Brown v. Caldwell, that a request is in every case to be presumed.

Under these acts and the judicial construction which they have received, this plaintiff in error has no standing in this court. On the trial below, the defendant, the present plaintiff in error, put certain points to the court in writing, to the answers to which he did not except. The opposite party, however, did. The answers of the court were filed, but the record does not show that they were filed at the request of either party-. They are therefore no part of the record on which this plaintiff can assign error, and he certainly cannot avail himself of the exception of the opposite party.

It would not be right to dismiss this case without adverting to the 3d section of the Act of April 17th 1856 (Pamph. L. 396). That section provides : That whenever the parties, or either of them, shall request the court to charge the jury on particular points of law, drawn up in writing and handed to the court before the close of the argument to the jury, the judge who charges the jury shall reduce the answers to the points to writing and read them to the jury before they retire from the bar to consider the verdict; and the said points and the answers thereto shall be filed immediately by the prothonotary and become part of the record of the case; and, when exceptions are taken to the charge of the court in the manner now practised, it shall be the duty of the judge who delivers the charge to file the same in writing with the prothonotary before the rising of the court or within thirty days thereafter.” If this is a general law the case of this plaintiff in error is certainly saved by it. At first blush it would appear to be so, and the late Chief Justice Woodward evidently so regarded it in Wheeler v. Winn, 3 P. F. Smith 122, but it would seem, from his citation, that he took it from the digest, and his attention was not called to the whole act of which it forms a part. In Patterson v. Kountz, 13 P. F. Smith 251,1 took occasion to express the opinion, that this'law is not a general one, but confined in its application to the courts of the Sixth Judicial District. It was not necessary to the decision of the court in that case, and I was careful to say that it was my own opinion only. Since then, and in the study of this case, I have carefully reconsidered the question, and my opinion remains unchanged and is now confirmed by the concurring opinions of my brethren. The title of the act is, “An Act to provide for the election of an additional law judge of the Sixth Judicial District.” Every other provision of the act is evidently confined to the courts of that district. The first section provides for the election of the additional judge. The second section directs when the courts shall be held in the several counties composing the district. It concludes, however, with this provision: “ Questións of law which may arise before the president judge, or the said additional judge, may in the discretion of the judge be reserved for the determination of all the judges, either in term time or at such adjourned sessions as they may appoint and hold for the purpose.” Then follows the third section, which is now in question and which has been recited at length above. It is to be observed it does not say “any” court or “a” court indefinitely, but definitely “the” court; grammatically the court before spoken of and about which alone, according to the title, the legislature was making regulations. It had not the words, “ for other purposes,” according to the old hackneyed form,1 now fortunately prohibited by the constitution. The fourth section, which provides for the dates and return days of writs, is expressly confined to proceedings in “ said court.” And, in the fifth and last section, makes provision for special courts, “when both the president and additional judges of the Common Pleas of the Sixth District” should be disqualified for holding the same. We do not see how any one can read the whole act together without coming to the conclusion that the third section only relates to the courts of the Sixth Judicial District. On any other supposition it would be very strange and unaccountable that two acts, approved within two days of each other, the 15th April 1856, and the 17th April 1856, both pending no doubt before the legislature at the same time and on the same subject-matter, should yet contain provisions so variant.

Finding no error on this record of which the plaintiff in error can avail himself, Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    McCray versus Clark et al.

    1. McCray in 1864 purchased land of Reed by articles of agreement, which he did not place upon record until 1871, and never took possession of the land or put a tenant thereon. In 1861, Clark obtained a judgment against Reed, and in 1866 he issued a scire facias to revive the same. Reed accepted service of the writ, hut it was not served upon McCray. Judgment was taken for want of an appearance and Clark sold the land in dispute. McCray brought ejectment and on the trial offered to prove by Reed that at the time the latter accepted service of the writ,. Clark admitted he had notice of McCray’s title, which offer was rejected. Held, that it was error to reject this evidence.
    2. Held, further, that where the plaintiff in a judgment has actual notice that land which his judgment hinds has been sold, and. issues a scire facias to revive his judgment, the writ must be served upon the vendee as terre-tenant, although the vendee may not have taken possession of the land, or put his deed of record.
    3. The Act of 16th of April 1849, which provides that “ in all cases where a judgment has been or shall he regularly revived between the original parties, the period of five years, during which the lien of the judgment continues, shall only commence to run in favor of the terre-tenant from the time that he has placed his deed on record,” deals with constructive notice only, and leaves untouched the question of actual notice.
    October 18th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas of Clarion county: Of October and November Term 1876, No. 17.
    This was an ejectment brought by James McCray against John Clark and Robert H. Patton, for a tract of land containing one hundred and seven acres, situated in Highland township, Clarion county.
    On the trial, before Jenks, P. J., it was admitted that previous to 1861 the title to the land in dispute was in Columbus Reed.
    The plaintiff claimed by virtue of articles of agreement under seal dated the 29th of December 1864, acknowledged the 25th of December 1871, and recorded December 26th 1871, wherein Columbus Reed sold and conveyed the land in question to plaintiff for $600, receipt of which was acknowledged in the agreement. Plaintiff, it appeared, never took actual possession of the land himself or by tenant.
    The defendant Clark claimed that, on the 4th of May 1861, he entered judgment in the Court of Common Pleas of Clarion county against Columbus Reed for the sum of $346.74; that on the 2d of March 1866 he issued a scire facias to revive this judgment against Reed, which scire facias it appeared named no one as terretenant and contained no directions to the sheriff to serve on parties in possession, nor was McCray served with the writ. On the back of the writ Reed accepted service, and on the 10th of May 1866 .judgment was taken in default of an appearance.
    On the 9th of March 1868 a writ of fieri facias issued, and the property was levied on, condemned and sold to Clark for $145, to whom the sheriff acknowledged and delivered a deed on the 10th of December 1868.
    The defendants contended that this sale divested all title and interest of McCray in the land, inasmuch as McCray had failed to comply with the requirements of the Act of 16th of April 1849, Pamph. L. 664, which provides that “ in all cases where a judgment has been or shall be regularly revived between the original parties, the period of five years during which the lien of the judgment continues shall only commence to run in favor of the terretenant from the time that he or she has placed their deed on record; provided, that this act shall not apply when the terre-tenant is in actual possession of the land bound by such judgment by himself or tenant.”
    In rebuttal the plaintiff proposed to prove by Columbus Reed that at the time John Clark issued his scire facias against Columbus Reed to revive his judgment, and at the time Reed accepted service of the writ, he admitted that he had notice of McCray’s title, and that he was content to revive against Reed’s other land alone, and having done so, the knowledge on his part of McCray’s title is equivalent to the recording of the deed, and Clark and those under him cannot be innocent purchasers.
    Defendants objected, and the court ruled: “ There is no allegation that McCray was in possession of the land ; he did not put his title upon record until the 26th of December 1871. We do not see how the evidence, if admitted, would invalidate as to him either the lien of or sale under the judgment. The objection is sustained, and evidence excluded.”
    Plaintiff excepted, and a bill was sealed.
    The verdict was for the defendants.

      Plaintiff took this writ, and assigned for error the rejection of his offer of evidence.

      James Campbell (with whom, were Knox # Maffett), for plaintiff in error. —
    By the Acts of 4th of April 1798 and 26th March 1827, no judgment shall continue a lien for a term exceeding five years, unless revived within that period by agreement of the parties and terre-tenants filed in writing and entered on the proper docket, or a writ of scire facias be sued out within said period and served on the terre-tenants. The revival of a judgment by agreement to which a terre-tenant is not a party will not continue the lien as to him, although the deed by which he became terre-tenant was not recorded and he never entered into possession of the premises: Armstrong’s Appeal, 5 W. & S. 852. It is not alleged by the defendant Clark that McCray had notice of his judgment against Reed, of his intention to revive the same, or any of the proceedings thereon. Therefore, as McCray became the purchaser of the land in dispute on the 29th of December 1864, and paid purchase-money in full, all of Reed’s interest and title in the land vested in McCray, and as Clark’s judgment against Reed was entered on the 4th of May 1861, the lien against the land in dispute expired on the 4th of May 1866, and there being no notice or revival as to McCray, the terre-tenant, the levy and sale in 1868 of Reed’s interest in the land to Clark passed no title, as Reed had no title remaining to sell at that date. ■ The object of the Act of April 16th 1849 was to provide for constructive notice to the plaintiff in a judgment of the transfer of the title, but did not touch the question of actual notice. Constructive notice is to enable a party to obtain actual notice, and he to whom actual notice has been brought home should not complain when he is entitled to but constructive notice, for he has received more than his due: Sames’s Appeal, 2 Casey 184; Speer v. Evans, 11 Wright 141.

      W. L. Corbett and J. K. Patrióle, for defendants in error. —
    The Act of 16th of April 1849 was passed to remedy a defect in the Acts of 4th of April 1798, and 26th of March 1827. Under these acts a plaintiff in a judgment which was a lien upon land was compelled to ascertain whether a sale had been effected by the defendant in the judgment, and if so, to make the vendee a party terretenant in any revival, by scire facias, of the lien. The Act of 16th of April 1849 provides for a continuance of the lien by a revival between the original parties, except where the vendee has taken actual possession or placed his deed on record. If the plaintiff in the judgment finds no person in possession of the land bound by the judgment, and there is no deed or conveyance of the same from the defendant in such judgment on record, neither the spirit nor letter of the act requires him to heed actual or constructive notice except that of possession. In the present case John Clark, one of the defendants in error, obtained a lien on the land in dispute by a judgment entered on the 4th day of May 1861, and when Reed, under whom plaintiff in error claims, sold the land on the 29th day of December 1864, the lien of the said John Clark was in full force and effect. Plaintiff in error not having placed himself in a position to claim notice as a terre-tenant by recording a deed or by taking actual possession, the title acquired at the sale on the judgment on the revival by scire facias carried the title to the land.
   Mr. Justice Mercur

delivered the opinion of the court, January 2d 1877.

• This was an action of ejectment. Both parties claimed under Columbus Reed. On the 4th of May 1861 the defendant in error, Clark, obtained a judgment against Reed. A sci. fa. was issued thereon March 2d 1866, and service accepted by Reed. At the May Term following judgment was duly taken for want of an appearance. By virtue of executions issued thereon, the land in question was levied on, condemned, and sold to Clark, to whom, in December 1868, a deed was executed, acknowledged, and delivered by the sheriff.

Mr. McCray purchased the land of Reed, by articles of agreement, on the 29th of December 1864, and paid the purchase-money in full, which is acknowledged in the agreement. He was not served with the sci. fa. He had not placed the articles of agreement on record, nor had he taken actual possession of the premises by himself or tenant.

The defendants in error now claim that inasmuch as McCray had failed to bring himself within the requirements of the eighth section of the Act of 16th April 1849 (Pamph. L. 664), the lien of the judgment was continued against his land by the revival against Reed alone. The act declares, “In all cases where a judgment has been or shall be regularly revived between the original parties, the period, of five years during Avhich the lien of the judgment continues, shall only commence to run in favor of the terre-tenant from the time that he or she has placed their deed on record: Provided, that this act shall not apply * * * when the terre-tenant is in actual possession of the land bound by such judgment, by himself or tenant.” It is urged that this statute has prescribed the only ways by which the land of a terre-tenant can be discharged from the lien of a judgment duly revived against the original defendant. The correctness of this view may be tested by considering the object and spirit of the act. Its object was to protect the plaintiff in a judgment against the title of a third person of which he had no notice. Its spirit was to require one who desired to continue beyond five years the lien of his judgment on all the lands originally bound thereby, to revive it, against all persons who he knew had purchased any of them after the recovery of the judgment. This section however deals with constructive notice only. The terre-tenant who relies on constructive notice to the plaintiff in a judgment to protect his land from a continued lien by a revival against the defendant therein, must show that he has either put his title on record, or that he was in the actual possession of the land, by himself or tenant. It leaves untouched the question of actual notice.

Notice may be either actual and positive, or it may be implied and constructive. Actual notice is knowledge brought directly home to the party. Constructive notice is in its nature no more than evidence of notice, the presumption of which is so violent that the court will not allow-of its being controverted: 1 Story’s Eq., § 399; Lessee of Billington v. Welsh, 5 Binn. 134. The rule is well established that a purchaser of land having notice of a prior unrecorded deed from his vendor, will not be permitted to set up his title against that prior conveyance. Such purchaser with notice is not considered a boná fide purchaser; but as one acting in bad faith, a particeps criminis, taking the place of his vendor; and to permit him to hold against the first purchaser would be to convert the statute into an instrument of fraud: 1 Story’s Eq., § 397 ; Brightly’s Eq., § 113; Jacques v. Weeks, 7 Watts 270 ; Garrard v. Pittsburgh & Connellsville Railroad Co., 5 Casey 154. So in York Bank’s Appeal, 12 Casey 458, it was held, that if a- subsequent encumbrancer have actual notice of a judgment defectively entered, before his rights attached, it is equivalent to the constructive notice given by statute to a proper entry on the judgment docket. That actual notice is as effectual as constructive notice is affirmed in Smith’s Appeal, 11 Wright 128 ; Speer v. Evans, Id. 141; Meehan v. Williams, 12 Id. 238.

A purchaser at sheriff’s sale is protected by the recording acts against an outstanding title of which he has neither actual nor constructive notice: Morrison v. Funk, 11 Harris 421. But if he is acquainted with an adverse claim of title, it is not necessary that the claimant should give notice of his claim at the time of sale, to protect his rights: Owens v. Myers, 8 Harris 134.

Where land on which a judgment is a lien has been aliened by the defendant, an amicable revival by the terre-tenant, to which the original defendant is not a party, will continue the lien of such judgment on the land: Sames’s Appeal, 2 Casey 184. But the revival by agreement to which the terre-tenant is not a party will not continue the lien as to him, although his deed was not recorded: Armstrong’s Appeal, 5 W. & S. 352. The terre-tenant was there in possession by his tenants on whom service could have been made. In the present case the offer was to prove not only that Clark had notice of McCray’s title at the time the sci. fa. issued and service was accepted by Reed, but, if we correctly understand the offer, that he expressed a willingness to revive the judgment against Reed’s other lands alone. We think actual notice may be as effectual as constructive notice to affect Clark, who was both plaintiff in the judgment and purchaser. The learned judge therefore erred in rejecting the evidence.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Paxson

text:
    Mays et al. versus Dwight et al.

    Dwight and Ashton leased a tract of oil land to Mays, with one well partly bored thereon ; Mays agreed to sink this well deeper, and to pay the lessors a royalty of one-fourth of the oil obtained from it. It was the understanding of both parties to the lease, that this well was situated upon the tract leased; it afterwards appeared that it was not within the lines of this lease, whereupon the lessees offered to deliver possession of the premises leased and refused to pay a royalty. In a bill filed by the lessors for an account of profits, the court below ordered an account: Held, that it was a case of mutual mistake, against which equity will relieve, and that the bill should have been dismissed.
    October 19th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Appeal from the Court of Common Pleas of Venango county: Of October and November Term 1875, No. 239.
    This was a bill in equity, filed by E. P. Dwight and Samuel K. Ashton, trustees of the Keystone Oil Company, against Henry Mays, David Ochs, J. H. Smith, Abraham Smith and H. M. Davis, for an account of the value of oil alleged to have been produced by the defendants under a lease from the plaintiffs. The answer admitted substantially the facts averred in the bill, but set up the defence which appears below.
    The case was referred to a master, who reported substantially the following facts: “ On September 13th 1871 the plaintiffs made a lease for ten years, to Henry Mays, one of the defendants, of four acres of ground, part of a tract of land in Venango county, known as the ‘ Keystone property,’ for oil purposes. The leased property was described in writing as follows: ‘ Beginning at the south-east corner of the Keystone tract, thence by land of Henry Sayers west 16 perches, thence north 40 perches, thence east 16 perches to the line of the Decatur Oil Company, thence 40 perches along that line south to the place of beginning, containing four acres, with one well thereon partly bored, together with the engine, boiler, rig and tools, also tubing, casing, sucker rods and other appliances necessary to be used in and about said well which may be on the said premises. The said well to be cleaned out and sunk deeper to the third sand rock by the party of the second part.’
    “ Mays covenanted in said lease to keep accurate, books of account, showing the daily product of each well on the lease and the division and delivery of the same, and to deliver to the plaintiffs one-fourth of the petroleum obtained from the land so leased, as often as once in every ten days, or oftener if required. About October 1st 1871 certain interests in this lease were purchased by the other defendants.
    “ In pursuance of the lease, Henry Mays and his assigns entered upon the leasehold and completed drilling the unfinished well thereon, specified in the lease, by sinking it about 160 feet deeper, and obtained from it 264 barrels of oil, worth and averaging on the premises $2.93 per barrel. The defendants ceased operating this well shortly after the bringing of this suit, but commenced again some time in the winter of 1872-3. The defendants have never rendered to the plaintiffs an account of the production of said well, and have not delivered to them any oil'as royalty thereon.
    “ Prior to the signing of said lease by Henry Mays, he and the plaintiffs’ agent had some negotiations between them about, the lease and well. Both believed the well to be on the four acres described in the lease. The lease was prepared and sent by the plaintiffs to Mays, who signed it.
    “ The defendants then repaired the engine and other personal property leased, at a cost of about $100, which repairs were necessary to their use, and sunk the well to a third sand rock, at an additional expense of $500, finishing it in the latter part of December 1871.
    “ On September 9th 1871, Mays took a lease of ten acres of a tract of land adjoining the tract of plaintiffs, from H. J. Sayers, for oil and mining purposes (the other defendants becoming interested therein), at a rent of one-sixteenth of the oil. The two leases adjoined, and possession under both was taken the same day.
    “After the defendants took possession and some time after they had been drilling at the old well, Sayers claimed that it was on the ten acres leased to Mays. Upon notice of this claim to the plaintiffs below, they caused a survey of the premises to be made, which showed that the old well was not upon the four acres leased by them to Mays. Since this survey the defendants had been paying the rent or royalty to Sayers, on his demand as their landlord. The • defendants offered, after the bringing of this suit, to surrender possession to the plaintiffs of the premises mentioned in the lease of 13th September 1871, including the engine and other personal property therein mentioned, as also to give them possession of the well referred to therein, and to pay them a suitable rent therefor. The old well was situated within the lines of the Sayers lease of ten acres.”
    Upon these facts the master was of opinion that the plaintiffs could not recover for oil obtained from a well situated outside of the demised premises, and reported a decree dismissing the bill.
    The court below (Trunkey, P. J.), upon exceptions to the master’s report, sent the case back to the master to state an account as prayed in the bill, which the master did, finding a balance due the plaintiffs of $861.76. This report wras confirmed and a decree made in pursuance thereof, to which this appeal was taken by the defendants below. ■

      Kinnear and Smiley, for appellants.
    The appellees did not present a paper-book.
   Mr. Justice Paxson

delivered the opinion of the court, October 30th 1876.

Perhaps no rule of law is better settled than that a tenant in possession under a lease shall not be allowed to dispute the title of his lessor. Yet this rule, like most others, has its exceptions. Where the tenant has been induced to accept the lease by misrepresentation, fraud or trick practised upon him by the lessor, he is not estopped from setting up a superior title to. that of the lessor: Hamilton v. Marsden, 6 Binn. 45; Brown v. Dysinger, 1 Rawle 408; Baskin v. Seechrist, 6 Barr 154. It was said by Justice Bell in the last-named case, that It matters not whether the deception practised originated in voluntary falsehood or in simple mistake, for the immunity it confers springs not so much from the. fraud of the usurper as from the wrong which the deception would otherwise work upon the rights of the lessee.” Here it is clear that both parties to the lease believed the well to be on the four acres described therein. The master so finds. We have then the case of a mutual, mistake. It turns out that the well is upon the property of another person, who claims the rent or royalty for its use. The lessors have filed their bill in equity for an account of the oil taken from the well, the royalty for which they claim under the terms of the lease. The master finds the fact that the defendants (lessees) have offered, since the bringing of the suit, to surrender possession to the plaintiffs (lessors) of the demised premises. The court below made a decree in favor of the complainants, to which decree this appeal was taken.

We do not propose to indicate how far the matters alleged by the, lessees would avail them as a defence in a proceeding at law to recover the rent under the lease. This is not such a proceeding. The lessors have invoked the aid of a court of equity. We think they have chosen the wrong tribunal. The rule that a tenant in possession cannot dispute his landlord’s title is not more firmly established than is the familiar principle of equity that when a contract is made under a mistake, or in ignorance of a material fact, Tfhich is of the very essence of the contract, it is voidable and relievable in equity: Miles v. Stevens, 3 Barr 21; Gibson v. The Union Rolling Mill Co., 3 Watts 32; Horbach v. Gray, 8 Id. 492; Geiger v. Cook, 3 W. & S. 266; Jenks v. Fritz, 7 Id. 201. We have here a mutual mistake upon a matter that was of the very essence of the contract. It is in just such cases that equity relieves against the hard rules of the common law. But, as before observed, it is the lessors who are seeking the aid of equity to enforce their contract, notwithstanding the existence of this admitted mutual error affecting the life of the contract itself. They appeal to the conscience of a chancellor to make an unconscionable decree. For, if we make the decree prayed for, it would not protect the lessees from a suit from the owner of the well for the royalty, and they would be without remedy. It needs no argument to show that these complainants have no equity. We leave them to their remedy at law.

The decree is reversed and set aside, and the bill dismissed. • The costs to be paid by the appellees.


author: Mr. Justice Sharswood

text:
    Parsons’s Estate. Parsons’s Appeal.
    1. Lien creditors of a decedent’s estate who deem their interests injuriously affected by the delay of an executrix to sell real estate, have a remedy by proceedings on their claims or under sect. 31 of the Act of 29th March 1832 (Pamph. L. 198).
    2. An executrix, with a discretionary power of sale under a will, for the payment of debts, refused to sell certain valuable real estate at a fair price, which had been offered to her, hut held it for two years, in the hope of a larger price through the revival of business. She received and appropriated the rents for two years, but at the same time kept the property m good repair. Upon petition by certain lien creditors, who alleged that she had thereby mismanaged the estate, she was removed: Held, that there was no cause for a removal, but that the petitioning creditors should have been left to their appropriate remedies.
    3. The fact that she at one time, agreed to make a sale, but afterwards refused, unless a bonus was paid to her, and the rule of law that the rents during this time belonged to her individually under the will, and did not go to the creditors, do not affect the question.
    October 19th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Appeal from the Orphans’ Court of Erie county: Of October and November Term 1875, No. 239.
    Appeal from a decree of the court below removing Annie M. Parsons from the position of executrix of the will of her deceased husband, James W. Parsons, under the provisions of the Act of May 1st 1861.
    The petition of the Keystone Bank, the Erie Lime Company and the Dime Savings Company, filed June 10th 1875, set forth that Parsons died in January 1873, leaving a will under which letters testamentary were granted to his wife; that he was indebted to the amount of over $40,000; that he owned a large malt house in Erie, subject to a mortgage of over $26,000 tOx the Keystone Bank, to mechanics’ liens of over $5500, and to the lien of a judgment of the Dime Savings Company, on which there was due over $9000; that in June 1873 the Keystone Bank and the Lime Company, with the consent of the executrix, negotiated a sale of the malt house for $33,000, but that'she would not sign the deed except upon payment to her of $1000; and that at different times she had demanded different sums as a consideration for completing the sale; that by refusing to sell the property for two years she had acted against the interests of the creditors; that during that time she Ijad received a large rent of over $3000 for the place, which she had appropriated for her family; and that the malt house was going to decay. It prayed a citation to the executrix to show cause why she should not be dismissed, and that she should not be allowed to receive the rents till the farther order of the court.
    Parsons’s will contained this clause: “ I also authorize and empower my executors and executrix to sell my malt house property, and any and all other real estate of which I shall or may die seised or possessed, and make all needed deeds to grant and convey the same, and to fix at their discretion and judgment terms of sale, prices and purchasers.” After a‘Specific bequest of certain life insurance money, he gave all the residue of his property to his wife.
    After a motion to quash the petition was overruled, Mrs. Parsons filed an answer in which she averred that she had acted faithfully in her trust and had filed her account, which had b§en confirmed; that the malt house was very valuable, and would in ordinary times be worth $50,000; that the alleged liens were invalid, and had been bought up by the Dime Savings Company, excepting a small amount, at only fifty cents on the dollar; that she had never agreed to make a sale of the premises at $33,000 ; that she had kept the premises in perfect repair and had not mismanaged the estate; that it would be ruinous to force a sale in depressed times; and that the alleged claims of the Keystone Bank and the Dime Savings Company were disputed and were then in litigation.
    The evidence as to the then condition of the property was conflicting, but the weight of the evidence was that it was kept in good repair by the executrix. There was also a conflict of evidence as to the value of the property; one witness testified that it was not worth then over $25,000; other witnesses placed a higher valuation upon it. There was evidence in support of the other averments in the petition. It also appeared that the petitioners’ claims were then unsettled, as averred in the answer. No proceeding had been taken in the Orphans’ Court to compel a sale. It also appeared that the executrix had agreed at one time to sell the property for $32,000, in consideration of her receiving $2500, for the payment of unsecured debts of the estate, and that after this latter sum was paid to her she declined to convey.
    A commissioner was appointed to take testimony. The .court below, after a consideration of the evidence, made an order revoking the letters testamentary and removing the executrix. No written opinion was delivered. The executrix took this appeal.

      J. O. and F. F.-Marshall, for. the appellant.

      Davenport $ Griffith, for the appellees.
   Mr. Justice Sharswood

delivered the opinion of the court, October 30th 1876.

By the provision of the Revised Code of March 29th 1832, Pamph. L. 196, the mode of proceeding in the case of an executor wasting or mismanaging the estate or property under his charge is by a citation, and upon the return of such citation the court may require such security as they may think reasonable, and upon his neglect or refusal to give such security to vacate the letters testa? mentary and award new letters in such form as the case may require. The Act of May 1st 1861, Pamph. L. 680, provides a more summary proceeding to be used at the discretion of the court in place of that authorized by the Act of 1832. It was under this latter act that the proceedings in the court below in this case were instituted and carried on. It is a much more stringent and summary process to remove an executor, and it must clearly appear from the evidence that a case was made out under it, and that the discretion of the court was properly .exercised. It must clearly appear that the executor is “ wasting or mismanaging the property or estate under his charge, or that for any reason the interests of the estate or property are likely to be jeopardized by the continuance of such executor.”

The appellant is the surviving executrix of the will of her deceased husband, James W. Parsons. Under that will she has discretionary power to sell his malt house and any and all other real estate of. the testator. .She is expressly to fix according to her discretion and judgment terms of sale, prices and purchasers. The petitioners below are lien-creditors of the estate. They aver in their petition that all the real estate of the testator is the malt house mentioned in his will; that the liens against it are more than its value; that the interest on the indebtedness is rapidly increasing; that the malt house is fast going to decay, and that the appellant has refused to make a private sale under the power in the will at what they allege to be a full and fair price. Upon the return of the citation and answer filed by the respondent, a commissioner was appointed to take testimony, and the evidence before him was returned and is spread on this record. The court made a decree vacating the letters testamentary and removing the executrix, from which she appealed.

The allegation of the petitioners, that the malt house was fast going to decay, is certainly not supported by the proofs. On the contrary, the weight of the evidence is that it was in a much better state of repair when the petition was presented than when the testator died, and by the existing lease of the premises made by the appellant, provision is made allowing the tenant to expend one thousand dollars of the annual rent in repairs. The other allegations of the petition are substantially sustained.

The question then is whether the refusal by the appellant to execute a power of sale of real estate, vested in her discretion by the terms of the will, is such a wasting, mismanaging or jeopardizing the estate as to justify the court in the decree which they made vacating the letters testamentary and removing her from the trust. We see nothing else, aftér a careful examination of all the evidence, but this ground upon which the court could have proceeded. The fact of her having at first agreed, at the solicitation of the creditors, to make a sale under the will at a certain price, upon their advancing a sum of money to pay other creditors, and their making such advance and her afterwards insisting upon another sum of money, even though she meant such further sum as a bonus to herself, for which, however, it is clear she would have had to account as executrix, have no material bearing upon the case. Nor can speculation upon- the probable rise or fall in the market value of the property affect the question. She may be entirely wrong-in the idea that the longer she can manage to prevent the sale of the malt house the higher will be the price obtained and the greater the advantage to all persons interested in the estate. The fact that the rents and profits, in the meantime, do not go to the creditors, but belong to the devisees, is a conclusion of law, and is not imputable to her. All these considerations are to be weighed by the appellant in the exercise of the discretion confided to her. We see nothing in it all to show any unfaithfulness to her trust, nor any wasting, mismanaging or jeopardizing the estate. The creditors who deem their interest injuriously affected by any unreasonable delay in the sale of real estate for the payment of debts, have their remedies either by proceedings at law upon their claim and compelling a sale by execution or under the 31st section of the Act of 29th March 1832 (Pamph. L. 198), by an order of the Orphans’ Court. That would not be a sale under the power in the will, but a judicial sale for the payment of debts. It is plain then, we think, under this evidence, that there is nothing to convict the appellant of wasting or mismanaging the property under her charge or of jeopardizing the interests of the estate, and the court below ought not to have vacated her letters, but to have left the petitioning creditors to their appropriate remedies.

Decree reversed; the costs below and the costs of this appeal to be paid by the appellees.


text:
    Wentroth’s Appeal.
    1. One who performs a contract to. deliver-lumber, by hiring teams and drivers, hut who does no hauling himself, is not a “ laborer” within the meaning of the Act of April 9th 1872, and is not entitled to the preference provided by that act.
    2. In the contemplation of the act, “ laborers” are those who perform with their own hands the contract they make with the employer.
    October 24th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Appeal from the Court of Common Pleas of Cambria county: Of October and November Term 1876, No. 208.
    This was the appeal of John D. Wentroth from the decree of the court making distribution of the proceeds of the sheriff’s sale of the personal property of Nicholas Wolf.
    The case was thus: Wentroth, under two executions, levied on property of Wolf, consisting of a portable steam saw-mill and fixtures, and a lot of lumber, logs, bark, &c. On the day of the sale, notice was served upon the sheriff by Frederick Snyder, that he claimed a preference out of the proceeds of the sale, which notice was in pursuance of the 1st and 2d sections of the Act of April 9th 1872, Pamph. L. 47, Purd. Dig. 1464, which gives a preference to miners, mechanics, laborers, or clerks, for labor or services rendered, for any period not exceeding six months, immediately preceding the sale of the property of their debtor, and if they give notice in writing of their claims to the officers executing the writ before sale, making it the duty of these officers to pay them out of the proceeds of sale the amount they are entitled to receive, not exceeding $200. The sheriff proceeded to make the sale and the fund arising therefrom was referred to an auditor for distribution •
    It appeared before the‘auditor that Wolf and Frederick Snyder had a written agreement under the terms of which Snyder Avas to deliver at the steam saw-mill of Wolf all the “ hemlock timber now cut down and peeled on the Wentroth tract of land, formerly Rorabaugh’s, and on the Pensacola tract,” Avithin a certain time, for Avhich he Avas to receive $2.50 per thousand feet, the payments to be made as stipulated in the agreement. It seemed that the hauling was not done by Frederick Snyder or Avith his teams, but by his brother and nephew and several other parties Avho were employed by Snyder and who used their OAvn teams to haul the lumber.
    Michael Snyder, the brother of appellee, testified: “ I was carrying this article of agreement for my brother. I had nine or ten teams employed. The entries in regard to lumber hauled and the credits given Ayere made by my son George. I was acting as the agent of Frederick Snyder. The teams and hands Avere paid by orders drawn on Wolf, and Avere to be charged to Frederick Snyder.”

      The auditor decided that Frederick Snyder was entitled to the preference under the act, and awarded him' $200 out of the fund.
    Wentroth excepted on the ground that Frederick Snyder never performed any part of the labor for which the preference was allowed; that he was a contractor living away from where the work was performed, and never had been present or superintended its performance.
    The court dismissed the exception and confirmed the report of the auditor, from which decree this appeal was taken, and the error assigned was in substance that contained in the foregoing exception.

      Greorge M. Peade and William, II. Seehler, for appellant.—
    Unless the rights of the appellee are clearly within the statute he cannot prevail. The labor performed under the written contract was done entirely by third parties and not by the appellee. The act certainly does not contemplate giving such a claimant a preference. It is pari materia with previous acts giving preference to laborers, and is intended to give immediate relief to persons of limited means, and not to one who gave no time or attention to the business and who made the contract for speculation merely. The cases cited were: Seider’s Appeal, 10 Wright 57, and Sullivan’s Appeal, 27 P. F. Smith 107.

      P. L. Johnston, for appellee. —
    The laws favoring the rights of labor are of statutory growth, and have always been liberally interpreted. The Mechanics’ Lien Law, the creature of our statutes, originally confined to one or two counties, has been made general and has always received a liberal construction. As Pennsylvania became a mining state, an act was passed (Act of 2d April 1849, Pamph. L. 387) protecting laborers in mines, and giving them a preference over other creditors. This act originally extended to only seven counties. In 1872 it was re-enacted, made general, and the amount of preference given to laborers, &c., was extended from $50 to $200. This act, so far as it has come before this court, has received such a construction as to give effect to its humane provision : Reed’s Appeal, 6 Harris 235; Wade’s Appeal, 5 Casey 328; Pennsylvania Coal Co. v. Costello, 9 Id. 241. Seider’s Appeal, supra, upon which the auditor rested his decision, is relied upon by appellant to reverse him. In that case it was decided that contractors who employed eight or ten hands were entitled to the benefits of the act, and also for “horses, carts and drivers.”
   Mr. Justice Sharswood

delivered the opinion of the court, October 30th 1876.

Frederick Snyder, the appellee, entered into a written- contract with Nicholas Wolf, the owner of a saw-mill, by which he undertook to deliver at the mill “ all the hemlock timber now cut down and peeled on the Wentroth tract of land, formerly Rorabaugh’s, and on,the Pensacola tract,” on or before a certain day, Wolf agreeing to pay him therefor the sum of two dollars and fifty cents per thousand feet. Snyder fulfilled the contract by hiring teams and drivers, but did no hauling himself. The saw-mill, fixtures and other personal property of Wolf having been levied on and sold by the sheriff under two judgments by the appellant, an auditor was appointed to distribute the proceeds. He reported that Snyder was entitled to priority to the extent of two hundred dollars, under the provisions of the Act of April 9th 1872, Pamph. L. 47. Exceptions filed by the appellant were overruled and the report confirmed by the court, and from this decree this appeal was taken.

The only question presented is whether Frederick Snyder was a “miner, mechanic, laborer, or clerk.” These and these only are the classes of persons to whose claims priority is secured by the act. “ Miner, mechanic or clerk,” it is not pretended that he was. ■ Was he a laborer ? If he was a laborer it must be conceded that it does not matter in what manner his services were to be compensated,, whether by daily wages or by the quantity of lumber delivered. The act does not say wages, but “ all moneys that may be due or hereafter become due for labor and services.” What class of persons was intended tobe comprehended by the word “laborer?” We think this question has been very accurately answered by this court in Daniel Seider’s Appeal, 10 Wright 57. “ By laborers,” says Mr. Justice Woodward, in delivering the opinion of the court, “ we mean those who perform with their own hands the contract they make with the employer.” It is clear that Frederick Snyder does not fall within this description. The act meant to favor those who earned their money by the sweat of their own brows, not those who were mere contractors to have the work done, and whose compensation was the profit they would realize on the transaction. Had Snyder been a chief workman, and employed helpers or assistants, the case might have presented a different question, which it is not necessary here to determine; for it would seem that such helpers would be entitled to priority, and it is very clear that the act did not intend to give a double lien. In such case, if he had paid the assistants, he might be entitled to stand in their shoes- by substitution, and recover the balance as compensation agreed upon for his own services. A somewhat analogous question arose under the Mechanics’ Lien Lavra, and it was decided by this court, in Jones v. Shawhan, 4 W. & S. 257, that one who furnishes nothing but his superintendence and skill as an' undertaker had no right to file a lien for anything in pursuance of his contract as such. . “ It is he,” said Chief Justice Hibson, “ who has found the labor or material, and not-he who has ordered them, that is entitled to the lien. Were the contractor, as well as the mechanic or material-men, allowed to file, there might be double liens and possibly double recoveries, which the law does not tolerate.”

Decree reversed at the costs of the appellee, and record remitted that the proper award" of distribution may be made in the court below in conformity with this opinion.


text:
    Hutchison and Batchelder versus The Commonwealth.
    B. was the owner of several hundred barrels of oil in the pipes or tanks °f the Union Pipe Line, for which he had two accepted orders on said company. B. delivered these orders to the firm of Ii. & B., oil dealers, and took from them a receipt, the terms of which were, that the oil was to be held for storage at five cents a barrel per month. At the time of the delivery of the accepted orders to H. & B. the oil was in the tanks or pipes of the Pipe Line and undistinguishable from the other oil therein. II. & B. deposited the orders to the credit of their general account with the Pipe Line, and thereafter deposited and drew until, they became embarrassed and, to meet their engagements, continued to draw on their balances on the books of the company until they failed. B. demanded the oil and H. & B. were unable to deliver it: Held, that they were guilty of larceny as bailees.
    2. The delivery of the accepted orders was a delivery of the oil and constituted a bailment, and the defendants having converted the oil to their own use, the conversion was fraudulent and they were guilty of larceny.
    3. The first count of the indictment charged the defendants with embezzlement as “ trustees and agents;” the third, with embezzlement as “ bailees,” and the fourth with embezzlement as “ trustees, agents and bailees:” Held, that the first and fourth should have been quashed, because they blended two or more offences in one count, and the third, because there is no offence at, common law nor under the code such as that charged therein.
    4. A count charged defendants with larceny as “ bailees and agents:" Held, that there being no such offence as “larceny as agents,” and as the word “ agents” did not introduce another offence into the count, it should be rejected as surplusage.
    5. Defendants demurred to the evidence and the Commonwealth having joined therein, the court discharged the jury and gave judgment for the Commonwealth on the demurrer: Held, that this was not erroneous.
    6. Under the provisions of the Act of 19th of May 1874, in all cases of felonious homicide and such other criminal cases as are triable exclusively in the Oyer and Terminer-, writs of error and certiorari are of right, and in all other cases may be issued whenever allowed by the Supreme Court or a judge thereof.
    October 24th 1876.
    Before Agnew, C. J., Sharswood, Mbrcur, Gordon, Paxson and Woodward, jj. Williams, J., absent.
    Error to the Court of Quarter Sessions of Armstrong county: Of October and November Term 1876, Nos. 62 and 63.
    This was an indictment of A. Peter Hutchison and W. S. Batch-elder for embezzlement and larceny as bailees.
    On the 13th of July 1874, R. L. Bishop, the prosecutor, who was the holder of two orders drawn upon and accepted by the Union Pipe Line for 10837%% barrels of crude petroleum, endorsed said orders and delivered them to the firm of Hutchison & Batchelder, oil dealers, and received from them the following receipt:—
    “Parker’s Landing, Pa., July 13th 1874.
    “ Received of Mr. R. L. Bishop ten hundred eighty-three barrels United oil, pipage unpaid, to be held for storage on the following terms: five cents a barrel per month, or fifty cents for twelve months. Hutchison & Batciielder.”
    On the 13th of August, Bishop, having another order drawn upon and accepted in like manner by 1jbe Pipe Line Company for 103/5% barrels, endorsed and delivered the same to Hutchison & Batchelder, who underwrote the above receipt as follows:—
    “ August 13th 1874, received 103/o% barrels, on same terms as above. H: & B.”
    At the time of the delivery of these orders the oil mentioned therein was in some of the numerous tanks or miles of pipe of the Union Pipe Line Company, and was wholly undistinguishable from thousands of barrels of other petroleum in the tanks of said company.
    After Hutchison & Batchelder had received the accepted orders, they deposited them to their general account with the Pipe Line Company, and were credited with the same upon the books of said company. Against said general account they drew at various times until the spring of 1875, when they became embarrassed, and in meeting their engagements continued to draw until their balance was exhausted; and the firm failed about August 1875.
    In October 1875 the prosecutor presented his receipts and demanded the 11867%% barrels of oil, which the defendants were unable to deliver, and on the 9th of November 1875, Bishop made a criminal information against them, and on the 7th of December following the grand jury returned an indictment.
    The first count in substance charged that “the defendants were intrusted by Bishop with said oil to keep in their tank, as trustees and agents under and by virtue of a certain contract in writing, to deliver said oil to Bishop whenever he should demand the same on the payment of storage or tank-age; that, being so intrusted, defendants did, by virtue of said trust agency, receive and take the said oil into their possession; that on the 15th of October and on the 5th of November 1875, the prosecutor demanded said oil and tendered the amount due for storage or tankage; that defendants, having the said oil in their possession by virtue of the said trust, refused to surrender the same, and did fraudulently embezzle the said oil and convert the same to their use with intent to defraud the said Bishop,” &c.
    The second count charged that “ said defendants, being the agents of Bishop, with the custody and care of said oil, did unlawfully and fraudulently embezzle said oil aud convert the same to their own use without the knowledge or consent ,and with the intent to defraud said Bishop,” &c.
    The third count: That being the bailees of Bishop and as such bailees intrusted with the custody and care of said oil, defendants unlawfully and fraudulently embezzled, and converted the same to their own use, &c.
    The fourth count: That defendants being the trustees, agents and bailees of Bishop intrusted', &c., did unlawfully and fraudulently embezzle, &c.
    The fifth count: That defendants being the bailees and agents of Bishop, and as such bailees and agents -intrusted, &c., did take, receive and carry away and unlawfully and fraudulently convert said oil to their own use, &c., and feloniously did steal, take and carry away said oil, &c.
    On the trial before Boggs, P. J., before the jury were sworn, the counsel of defendants moved to quash the bills of indictment on the following grounds : that the indictment improperly charges distinct offences, some of which are misdemeanors and others felonies; that none of the counts sufficiently charge defendants with any crime known to the law;. that the first and second counts do not sufficiently charge any crime under the 113th and 114th sections of Act of 30th of March 1860, or the third count with the crime of embezzlement at common law; that the first count does not sufficiently aver the writing creating the alleged trust; that the second" does not aver that defendants carried on business as agents; nor the third that defendants are either bankers, brokers, agents, attorneys or merchants or that they were clerks, servants or employees of Bishop, and that the fourth and fifth counts commingled two separate and distinct offences, one a misdemeanor and the other a felony.
    The motion was refused by the court and the defendants having entered a plea of “ Not guilty” the trial proceeded.
    After the Commonwealth had closed the defendants demurred to her evidence as being insufficient in law to maintain the indictment as to those crimes which are sufficiently charged therein.
    The Commonwealth joined in the demurrer, whereupon the court entered judgment as follows :—
    “ On the demurrer and joinder, jury discharged and the court on due consideration of the issue raised by the demurrer and joinder and the evidence, decide the issue in favor of the Commonwealth and against the defendants, and render judgment in favor of the Commonwealth and against the defendants of guilty in manner and form as they stand indicted and find from the evidence the property taken and fraudulently converted by the defendants and not restored to be 1186t7¡$j barrels of crude petroleum oil of the value of $1.40 per barrel, in all of the value of $1661.49.”
    The court afterwards sentenced the defendants each to pay a fine "of $6 and be imprisoned in the Allegheny County Workhouse for the period of six months, to restore to the owner the property fraudulently taken and converted, or pay the value of the same, or so much thereof as may not be restored, and to pay the costs of prosecution, and be in custody until this sentence is complied with.
    The defendants applied for a writ of certiorari, the proceedings to stay until the determination of the cause in this court, which was allowed by his Honor Justice Williams at Pittsburgh.
    Having obtained this writ, they assigned for error that the court erred: in refusing to quash the indictment; deciding the demurrer in favor of the Commonwealth; entering judgment thereon in the manner the court did; discharging the jury; not submitting to the jury the question of the value of the property alleged to have been taken; finding the value of the property and in the sentence imposed upon defendants.
    A writ of error was also taken by defendants, which it appeared, however, had at no time been allow'ed.
    When the cause came on for hearing before the Supreme Court, the Commonwealth’s counsel moved to quash both the certiorari and the writ of error for the following reasons :—
    1st. The writ was allowed by Hon. H. W. Williams, one of the justices of the Supreme Court of Pennsylvania, at chambers in the city of Pittsburgh, on the 24th day of February 1876, while the said Supreme Court was in session in the city of Philadelphia, where alone the application should have been made for the said writ.
    • 2d. The time fixed for the hearing of the ease was not in accordance with the Act of Assembly empowering the justices of the Supreme Court to allow writs of error in criminal cases.
    3d. There is no provision made by law for reviewing a criminal case determined upon a demurrer in the court below, and therefore neither writ of error nor certiorari will lie in this case.
    In support of this motion it was contended that no writ of error or certiorari would lie under the 57th sect, of Act of 31st of March 1860, Purd. Dig. 390, or the Act of 19th of May 1874, as these acts applied exclusively to homicide cases or where a trial had been had and exceptions were taken and sealed; that no provision was made by any Act of Assembly for a writ of error in a criminal case disposed of in the court below upon a demurrer to evidence, and that as a certiorari brought up nothing but the record, and the evidence in the case is no part thereof, it could not be reviewed by this court upon a certiorari. That the only mode by which said writs could be had is found in sect. 59, Act March 31st 1860, wherein the directions are explicit, that no such writ shall be allowed except within thirty days after sentence and upon special application, which application shall be made to the court in banc if sitting in any district; and it is only when the court is not sitting that the application may be made to a justice of said court, and whether allowed by the court or a justice thereof the time of hearing
      shall be fixed not more than thirty days after the allowance of the writ. This court will take notice of its own sessions and it is clear therefore that, whilst the court tras sitting in Philadelphia, one of • the justices of the court had no power to allow the writ in this case, and for this reason alone the writ should be quashed, but the departure from the Act of Assembly in fixing the time of hearing as. well as the fact that a writ of error does not lie in case of a demurrer in a criminal trial are equally causes for quashing the writ.

      J. Smullin and J. Gilpin, for plaintiff in error;
    whose contention was in the main that made in support of the motion to quash the indictment. It was further argued, that after the. defendants had demurred to the evidence and the Commonwealth joined, the court could not discharge the jury. If for nothing else, they should have been allowed to find the value of the property. Upon the point Avhether the defendants were bailees, it Avas contended that Bishop delivered to them no property in possession; what he gave to them Avas a mere chose in action, an incorporeal right. He was not to receive back the identical oil he gave them, for he had put it in the Pipe Line, where it had entirely lost its identity, and was mixed with thousands of barrels in the pipes and tanks. Bailment is a delivery ’of goods; there can be no delivery of things which are incorporeal and-lie in grant only. The contract was not a bailment, as is manifest to any one acquainted Avith the the method of dealing in storing and transporting oil. A pipe line is similar to a bank, except that it receives oil instead of money, and counts by barrels instead of dollars ; an accepted order is the same as a certified check. Deliver and store are the Avords Ave apply to oil. Pay and deposit are those we apply to money. Suppose A. Avas to give B. a check, certified by a hank, for $1083, and B. give in return a receipt acknowledging the receipt by him of $1083 on deposit, which he was to pay to A. upon demand. And that B. thereafter deposited the check and Avas credited with the proceeds of it in his general bank account, and from day to day checked against his -bank balance until it Avas all. drawn out, and that when A. afterwards demanded of B. the money mentioned in the receipt, the latter would be unAA’illing, or unable to pay. Would B. be guilty of larceny as bailee ? Mutatis mutandis the present ease is exactly the same. Unless Bishop actually delivered to defendants certain separated specific oil upon a contract that they were to return to him precisely the identical oil Avhich they originally received from him, they should not have been convicted under the fifth count: Commonwealth v. Chathams, 14 Wright 188 ; Commonwealth v. Frantz, 8 Phila. R. 612.

      M S. Golden and the District Attorney, Jefferson Reynolds, for the Commonwealth. —
    The 1st, 2d, 3d and 4th counts charge embezzlement, varying only in the details of the offence and the character of the defendants, and are sufficient to sustain the conviction. The 5th count charges the offence of larceny as bailee under sect. 108 of the Act of March 81st 1860. The offences are clearly and separately charged in each count and growing out of the same transaction, and the misdemeanor being part of the felony and triable in the same court they may be legally charged in the same count: Hunter v. Commonwealth, 29 P. F. Smith 503. A misdemeanor and felony may be joined in same indictment: Hunter v. Commonwealth, supra; and where the defendant demurs a conviction and sentence will be sustained if there be one good count, and „the sentence legally appropriate, as was the case here. The defendants having demurred to the evidence there was no further necessity for a jury, as the facts were admitted by the demurrer, and it was the duty of the court to give judgment as well upon the guilt of defendants as the value of the property converted: Commonwealth v. Parr, 5 W. & S. 345. The important question is, were defendants bailees ? The word bailee is to be understood in its ordinary acceptation and means simply a custodian of property to be kept for and returned to another. Defendants agreed that the property was “ to be held for storage,” on certain terms, and they cannot say that because of their act in confusing it with other property they are not amenable to the criminal law. In contemplation of law and by the express language of their contract they were bound to restore the identical property on demand, and in no aspect of the contract had they a right to convert it to their own use: It is of the highest importance that the scope of the Act of Assembly should not be limited so as to exclude from its provisions the producers of oil, the necessities of whose business compel them to intrust pipe lines and parties like defendants with the care of their property, and if the old remedies be not adequate the court will in this case, as it did in Brown et al. v. Vandergrift et al., adapt the remedy to the existing facts.
   Mr. Justice Paxson

delivered the opinion of the court, January 2d 1877.

There was a certiorari as well as writ of error in this case. The former was specially allowed by our brother Williams at chambers. There was no allowance of the writ of error, although issued simultaneously with the certiorari. This was evidently an oversight. The Commonwealth moved to quash both writs, and assigned as reasons therefor, 1. Informality in the allowance of the writs; and 2. That neither certiorari nor writ of error would lie in the case. The objections are purely formal, and inasmuch as the record presents a proper case for review, we have no hesitation in allowing the writ of error nunc pro tunc. The Act of 19th May 1874 (Pamph. L. 219), makes ample provision for writs of error and certiorari in criminal proceedings. In all cases of felonious homicide and in all such other criminal cases as are triable exclusively in the Oyer and Terminer, said writs are of right. In all other criminal cases they may be issued whenever allowed by this court or a judge thereof.

Upon the trial in the court below a motion was made on behalf of the defendants to quash the bill of indictment. The motion was refpsed, and this ruling of the court forms the subject of the first seven specifications of error. We are of opinion that the first, third and fourth counts are fatally defective and ought to have been quashed. The first count charges the defendants with embezzlement as “trustees and agents.” Here is a blending of two offences in one count, which is not allowed in criminal pleading. Embezzlement by trustees is one offence; embezzlement by agents is another, and indictable under a different section of the code. Offences which are a part of the same transaction may be joined in the same indictment, when it is triable in the Quarter Sessions, even though one of said offences be a felony: Hunter v. Commonwealth, 29 P. F. Smith 503. This, however, does not justify the joining of separate offences in one count. The third count charges the defendants with . embezzlement as bailees. There is no such offence at common law nor under the code. The fourth count charges the defendants with embezzlement as “trustees, agents and bailees.” This is defective for the reason stated in regard to the first count. The second count is perhaps sufficient in point of law. , It charges embezzlement as “ agents.” It is, however, of no practical importance, as there was no evidence to support it. The defendants were not the “agents” of the prosecutor. This obviates the necessity of any discussion as to whether the defendants were professional agents. This conviction, if sustained at all, must rest solely upon the fifth and last count of the indictment. This'count charges the defendants with larceny as bailees. It is true the blunder of joining the words “bailees and agents” is again repeated, but we think with a different result. There is not a blending of two or more separate offences in the one count, as is the case in the first and fourth counts. There is no section of the code which defines and punishes such an offence as larceny by “agents.” Hence, the word “agents” does not introduce another offence into this count, and may be rejected as surplusage. This brings us to the important question in the case, viz.: was the evidence for the Commonwealth sufficient to sustain a conviction of larceny as bailees ? The defendants demurred to the evidence, and the district attorney having joined therein, the court discharged the jury and gave judgment for the Commonwealth upon the demurrer. The discharge of the jury is one of the errors assigned. In this we think the court below was right. It is true a jury are not only judges of the facts in a criminal case, but they are also, judges of the law under the advice and instruction of the court.' It was in the power of the defendants to require the jury to pass upon the whole case. But they waived this right by their demurrer to the evidence. By this act they threw the decision of both the law and the facts upon the court, and the discharge of the jury was entirely proper. They had no further functions to perform : Commonwealth v. Parr, 5 W. & S. 845. In the consideration of the question whether the court below was right in adjudging the defendants guilty under the evidence, the first thought that naturally suggests itself is, was there a bailment of the oil ? This involves a brief statement of the facts as proved upon the trial and admitted by the demurrer.

On the 13th of July 1874, ft. L. Bishop, the prosecutor, was the owner of 1083 barrels of crude petroleum. This oil was in the pipes or tanks of the Union Pipe Line, and Mr. Bishop held as the evidence of his title two accepted orders on said company. On the day above named Mr. Bishop delivered these orders to the firm of Hutchison & Batchelder, the defendants, and took from them the following receipt:— •

“ Parker’s Landing, Pa., July 13th 1874.

“Received of Mr. R. L. Bishop ten hundred and eighty-three barrels of United oil, pipage unpaid, to be held for storage on the following terms: Five cents a barrel per. month, or fifty cents ' for twelve months. .Hutchison & Batchelder.”

On the 13th of August 1874, the defendants received from the prosecutor 103-^ barrels of petroleum, in the same manner and upon the same terms. At the time of the delivery of the said accepted orders, the oil referred to was in the numerous tanks or lines of pipes of the Union Pipe Line Company, and was wholly undistinguishable from the thousands of barrels of other oil in said pipes, or tanks. After the defendants received the orders they deposited them to the credit of their general account with the Pipe Line, and thereafter continued to deposit and draw until the spring of 1875, when defendants became financially embarrassed. In order to meet their engagements, they continued .to draw upon the balances in their favor on the books of the Pipe Line until their failure in August 1875. When the prosecutor demanded his oil, they were unable to deliver it, for the jteason that they had drawn all or nearly all the oil out of the pipes to pay their debts. The case presented by this brief statement.is believed to be without precedent. Of all the numerous eases in the books, I have found no one that resembles it in all its essential features. If we take the receipt of the defendants as conclusive upon them, it would establish a bailment. But a receipt has never been held to be conclusive even in a civil case. The explanation of it furnished by the evidence in the case discloses substantially the facts above stated. It was contended, on behalf of the defendants, that there was no bailment, because there was no separation of the prosecutor’s oil from the immense quantity of other oil in the pipes and tanks of the Pipe Line Company, and that as a sequence there was no delivery. This is the vital point in the case. If there was no delivery of the oil there was no bailment. We have a long line of cases in England and this country involving the question as to how far a sale of goods is complete when the article sold has not been separated from other goods or property of like character. The subject is discussed at considerable length and the authorities reviewed by Mr. Justice Rogers in Hutchinson v. Hunter, 7 Barr 140. The rule which is there deduced from the authorities is that “ the goods sold must be ascertained, designated and separated from the stock or quantity with which they are mixed before the property can pass. Until this be done it remains the property of the vendor, and if destroyed by fire or otherwise, it is the loss of the vendor and not of the vendee.” This was undoubtedly the proper rule to apply to the case before the court in Hutchinson v. Hunter. The merchandise which had been sold consisted of one hundred barrels of molasses out of a lot of one hundred and twenty-five barrels. The barrels varied in quantity and had not been gauged; were not separated nor marked, nor were any particular barrels agreed upon. The facts brought the case precisely within the rule laid down by Chancellor Kent (2 Com. 496): “ If anything remains to be done between the seller and the buyer before the goods are to be delivered, a present right of property does not attach to the buyer. The goods sold must be ascertained, designated and separated from the stock in quantity with which they are mixed before the property can pass. It is a fundamental principle pervading everywhere the doctrine of sales, that if goods be sold by number, Aveight or measure, the sale is incomplete, and the risk continues Avith the seller until the specific property be separated and identified.” This principle runs through all the cases upon this subject and is too firmly established to be shaken. Nor are we disposed to question its soundness. If this case cannot be distinguished from those to which the rule has heretofore been applied, there Avas neither a delivery nor a bailment of the oil. - An examination of our own as well as the English cases discloses the fact that, as between the vendor and the vendee, something remained to be done in order to ascertain the property and render the delivery complete. In Smyth v. Craig, 3 W. & S. 14, the rum and molasses Avere to be gauged, and the price fixed at the purchaser’s warehouse; an act that was prevented by the vendor’s retention of. the property in his actual custody. Said retention was held to excuse actual performance, and the property passed. In Austen v. Craven, 4 Taunt. 643, the sugar which was the subject of the contract required to be Aveighed in order to ascertain the quantity. So in Busk v. Davis, 2 M. & Selw. 397, the quantity of flax to be delivered Avas to be ascertained by tbe wharfinger’s weighing it (the mats being of unequal quantities, so that a fraction of a mat might be required), and an allowance for the tare and draft was to be made by the weight. In Zagury v. Furnell, 2 Campb. 240, there was a sale of 289 bales of goat skins, five dozen in each bale. It appeared that, by the usage of trade, it was the duty of the seller of goat skins by bales in this manner, to count them over that it may be seen whether each bale contains the number specified in the contract. Before they were so counted the skins were destroyed by fire at the wharf, where they lay at the time of the sale. It was held by Lord Ellenborough that as the enumeration of the skins was necessary to ascertain the price, which was an act for the benefit of the seller, and as this act remained to be done by him when the fire happened, there was not a complete transfer to the purchaser, and the skins continued at the seller’s risk'. In White v. Wilks, 5 Taunt. 176, there was a sale of twenty tons of .oil out of a merchant’s stock, consisting of several large quantities of oil in divers cisterns, in divers places. Here the oil had to be weighed and separated. Whitehouse v. Frost, 12 East 614, was also a case of oil, and bears a closer analogy to the case under consideration than any that I have found. There A., having forty tons of oil secured in the same cistern, sold ten tons to B. and received the price. B. sold the same to C. and took his acceptance of the price at four months, and gave him a written order for delivery on A., who wrote and signed his acceptance on said order, but no actual- delivery was made of the ten tons, which continued mixed with the rest in A.’s cistern. Meld, that this ivas a complete delivery in law of the ten tons by B. to C., nothing remaining to be done on the part of the seller, though as between him and A. it remained to be measured off; and therefore the seller could not, on the bankruptcy of the buyer, before his acceptance became due, countermand the measuring off and delivery in fact to the then buyer. This case was undoubtedly decided against the current of authority. It was questioned in White v. Wilks, supra, and Austen v. Craven, supra, and may now be considered as overruled. The oil was sold by the ton. It was necessary not only to set it apart, but to weigh it. It could not be truly said that one ton was the exact counterpart of any other ton, for the reason stated in the note to White v. Wilks, that fluids are affected by a change of temperature; those portions which are most exposed to heat becoming lighter, while those portions not so exposed are correspondingly heavier.

It would be unprofitable to further follow up this line of cases. I have cited enough to show what pervades them all, that something remained to be done as between the vendor and vendee, to ascertain the quantity, quality or price. When nothing of the kind remains to be done, as was said in Scott v. Wells, 6 W. & S. 357, the ownership and risk pass by a contract of sale without actual delivery. To the same point is Rugg v. Minet, 11 East 210. But it must be conceded that where something remains to be done by the vendor to separate the goods and to enable the purchaser to get the actual custody and possession, the right of property would not pass, and the latter could not maintain an action of trover and conversion upon a refusal to deliver. It is almost needless to say that there could be .no bailment where there was neither title nor possession in the bailor. He could make no delivery, and delivery is of the essence of a bailment. It remains to be seen whether the principles of law above referred to are applicable to the facts of this case. We must not make the mistake of applying technical rules of law to cases for which they were not intended, and to which they have no proper application. An- examination of the facts of this case shows it to differ in many essential features from any of those cited, or any of the cognate cases. In the first place it is to be observed that in all of them the property sold was part of a larger quantity belonging to the vendor and in his possession from which it had not been separated or distinguished. Such was not the case here. The oil which is the subject of this contention was not mixed with any other oil of the prosecutor. It required no separation from any other portion of his property. It was not even in his actual custody or possession. He had the constructive possession by virtue of his accepted orders. When therefore he delivered the orders to the defendants there was nothing remaining for him to do to complete the transaction. He had done all in his power to render the delivery complete. The oil was in the pipes of the Pipe Line Company. For the sake of convenience it was poured in and mixed with the oil of other producers, and by the usage of trade each one was entitled to draw out, not the identical oil put in, but oil which is its precise equivalent. In the consideration of the questions involved in this case, we cannot close our eyes to the total revolution in the manner of doing business which has been brought about by the discovery of petroleum in this state. It has developed a new industry of vast importance. Methods for conducting it have been devised and put in operation which were wholly unknown when the cases I have cited were decided. Instead of oil being hauled a long distance . from the well to a market or shipping station, and there stored in barrels or in tanks in a merchants’ warerooms, it is now turned at once by the producer into the pipes of the Pipe Line Company, and thence conducted to the line of the railroad or canal for shipment, or may be held in said pipes, or the tanks connected therewith. Each producer knows that his oil is mixed with the oil of other producers. Each barrel of oil in the pipes is the precise counterpart of every other barrel contained therein. It differs neither in quantity, quality nor price. The oil is sold and passes from hand to hand upon the accepted orders or certificates of. the Pipe Line Company. And here again there is a marked distinction between this and any of the cases cited. It was distinctly proved upon the trial that the delivery of the certificates was a delivery of the oil. It was the usage of the trade, known to all these parties. It was consequently a part of their contract: Zagury v. Fennell, and Scott v. Wells, supra. The defendants recognised this usage by their receipt. For all the purposes of trade and commerce the delivery of the accepted orders was a delivery of the oil. This is a matter of fact, established by the evidence and admitted by the demurrer. Thousands of barrels of oil are sold, and delivered daily in the market upon similar orders. No one doubts that the property passes ; that the orders draw to them the constructive possession, and that the delivery of said orders is a symbolical delivery of the oil. None of the reasons which required a separation of the oil in the cases cited exists here. It is mixed for the convenience of those dealing with the Pipe Line Company. It is separated by the latter when the holder of the order requires it. By the usage of the trade he accepts the oil as it is drawn from the lines, and receives the precise equivalent in quantity, quality and value. It would seriously embarrass this large and valuable industry were we to hold that in such transactions .the delivery of the orders was not a delivery of the oil. How can these defendants allege with reason that as to them there was no delivery when in point of fact they drew the oil out of the pipes and applied it to the payment of their debts ? That such was the fact clearly appears from the evidence. If it had not been drawn out it would have been in the pipes still to meet the demand of the prosecutor. Even if the delivery of the orders was not a complete delivery of the oil at the time, such delivery became complete when the defendants drew it out, or enabled others to draw it out by a transfer of the orders. It would render the law contemptible in the eyes of business men were it to say that there was no delivery of this oil when as a matter of fact there was a delivery for all the purposes of trade and commerce; such a delivery as enabled the defendants to sell it and apply the proceeds to the payment of their debts.

The principle contended for by the plaintiffs in error rests upon the merest technicality. The tendency of modern legislation, as well as judicial decision, is to do away as far as possible with the subtle and refined distinctions of the common law when they interfere with substantial justice. As was observed in Hunter v. Commonwealth, 29 P. F. Smith 503, “ the revised criminal code and the criminal procedure act have brushed away many of these unseemly niceties.” In each of the sections of the code hereinafter cited artificial rules have given place to the advancing spirit of practical common sense in our legislation, and defects in the common law, long seen and acknowledged, have been supplied. As evidence of the legislative intent to regard substance rather than mere form, it may not be inappropriate to refer to the 124th section of the Act of 1860, defining the words “trustee” and “property” as used in said act. It is there said that “the word ‘property’ shall include every description of real and personal property, money, debts and legacies, and all deeds and instruments relating or evidencing the right or title to recover or receive any money or goods, and shall also include not only such property as may have been the original subject of a trust, but any property in which the same may have been converted, and the proceeds thereof respectively, or any thing acquired by such proceeds.” This language is very comprehensive, and evidently means that an offender shall not shelter himself behind technical rules based upon a change of the character of the property from one species to another. We do not propose to give any construction to the code not warranted by its terms. But to apply a technical rule of law to a case that is not within its reason nor spirit would be almost as objectionable.

If there was a delivery of the oil, of which we have no doubt, it follows necessarily that there was a bailment. This brings us to the further question whether the defendants fraudulently converted it to their own use. This point is free from difficulty. It is a fraudyer se for a bailee to convert to his own use the property committed to his care. The conversion is prima facie evidence of the fraud. Larceny at common law involves something more. It requires the animus furandi. There must be a felonious taking. Not so with larceny as bailee. It requires merely a fraudulent conversion. The 107th, 108th, 109th, 113th, 114th, 115th and 116th sections of the Act of 31st of March 1860 were evidently intended to punish as crimes certain acts which at common law were mere breaches of trust. Hence, fraudulent conversions of property by bailees, trustees, clerks, servants, bankers, brokers, attorneys, officers of banks,- and other corporations, are made criminal offences by the sections referred to. It is not required by the 108th section that the conversion by a bailee shall be with the intent to defraud. The omission of these words is significant; the more so from the fact that they are used in the 113th section relating to trustees, and the 104th section relating to bankers, brokers, attorneys, merchants and agents. In the case of a bailment, therefore, so far as the intent to defraud may be regarded as of the essence of the crime, it must be presumed from the unlawful conversion. If I deposit my pocket-book for safe-keeping over night with my landlord, and he opens it and converts the contents to his own use, he is a thief both in law and morals. Nor does it matter that he has parted with it to pay his debt under the stress of an execution, with the intention of restoring it to me ultimately. Such a transaction would be transgressive of the 108th section of the Act of 1860, and the conversion would be evidence of the fraud. But it is said that the defendants were bankers in oil, and that the case resembles that of an ordinary banker who receives moneys upon deposit. It is difficult to see the analogy. By the law and the usage of banking, the depositor who makes a general deposit of his money becomes a mere creditor of the banker. The money deposited becomes the property of the banker. He has a right to use it in his legitimate business. He may loan it out to his customers upon such security and upon such terms as are usual with bankers. No such state of facts exists here. The defendants acquired no property in nor right to use the prosecutor’s oil. It was deposited with them for storage and safe-keeping only, for which they were to be paid a compensation agreed upon. What right had they to sell it to pay their debts or for any other purpose? That they became embarrassed in their circumstances affords them no justification. They had no right to lay their hands upon the property of the prosecutor confided to them for safe-keeping in order to relieve themselves. Upon a careful consideration of the whole case we are of opinion that the learned judge of the court below was right in adjudging that the defendants were guilty of larceny as bailees. The fact that the indictment included other counts which are defective is not material. One good count is sufficient to sustain the sentence: Commonwealth v. M’Kisson, 8 S. & R. 420; Hazen v. Commonwealth, 11 Harris 355.

The judgment of the Court of Quarter Sessions is affirmed.

And it is further ordered that Peter Hutchison and W. S. Batchelder, the plaintiffs in error, be remanded to the custody of the keeper of the Allegheny county ■ workhouse, there to be confined according to law and the sentence of the court below, for the residue of the term to which they were respectively sentenced, and which had not expired, on the 23d day of February 1876, when the writs of error and certiorari in this case were lodged in the office of the clerk of the Court of Quarter Sessions; and that the record be remitted to said court with instructions to carry this order into effect.

Mercur, J., dissented.