text:
    Stadtfeld versus Huntsman & Co.
    1. 0. purchased, from H. & Co. certain furniture, for a stipulated price, and the articles were charged upon the books of II. & Co. The delivery, however, was made.upon an agreement, signed by C., to pay “not less than $>5 for each succeeding week, until the above amount (the price of the articles) is paid ; the goods above enumerated to be and remain the property of II. & Co., subject to removal by them or their order upon any failure to make any or all of the above payments.” C. having received the furniture under this agreement placed it in his house and failed to make any of the stipulated payments, and finally sold it to S., without notice of the agreement. II. & Co. brought replevin against S., and the court below held that the defendant took no title and that plaintiffs could recover. Held, that this was error; that the transaction between H. & Co. and C. was not a bailment but a sale.
    November 5th 1879.
    Before Sharswood, C. J., Mercur, ' Gordon, Paxson and Trunkey, JJ. Stbrrett and Green, JJ., absent.
    Error to the Court of Common Pleas No. 1, of Allegheny county: Of October and November Term 1879, No. 136.
    Replevin by D. W. Huntsman & Co. against Moritz Stadtfeld for certain household goods.
    Huntsman & Co. are engaged in the furniture business in the city of Allegheny, Pa. On October 29th 1877, O. B. -Carpenter came to their store for the purpose of purchasing furniture. He selected such furniture as he desired, and it was charged to him upon the books of Huntsman & Co., and under said charge was entered the following agreement:

      “ The above goods are received by the undersigned, Otis B. Carpenter, upon the following conditions, to wit: I hereby agree to pay not less than $5 for each succeeding week until the above amount is paid; the goods above enumerated to be and remain the property of D. W. Huntsman & Co., subject to removal by. them or their order, upon my failure to make any or all of the above payments.
    Signed, 0. B. Carpenter.
    “Witness, M. McFadden.”
    On the same day Huntsman & Co. delivered the goods to said Carpenter, at his house on Fourth avenue, Pittsburgh.
    Subsequently Carpenter went to Stadtfeld, who is a dealer in furniture in Pittsburgh, and stated he had some furniture he desired to sell. The furniture was at the house of Carpenter, and after examining it Stadtfeld purchased it, and had it removed to his place of business on Fifth avenue in Pittsburgh. He had no notice of the agreement of Carpenter with Huntsman & Co. under which the furniture was purchased. On November 15th 1877, Huntsman & Co. issued this writ of replevin, and replevied part of the furniture in possession of Stadtfeld at his place of business.

      The case was tried before Stowe, P. J., and a jury, which returned a verdict for plaintiffs for $50, subject to the opinion of the court as to whether the defendant, a bona fide purchaser for value, without notice, was affected by the agreement of sale between the plaintiffs and O. B. Carpenter.
    The court, in an opinion, after referring to the above agreement, said:
    “ Without the money or any of it being paid by Carpenter, the defendant purchased the same of him bona fide, and for value, and without any notice of the said agreement. The question reserved is whether, under such facts, the plaintiffs are entitled to recover in this suit. We think under the principle of Enlow v. Klein, 29 P. F. Smith 488, and many other cases cited in Benjamin on Sales 274, and note, they certainly are, and therefore order that judgment be entered upon the reserved question for the amount of the verdict, on payment of verdict fee.”
    This action of the court was assigned for error by the defendant, who took this writ.

      Duff cf Alcorn, for plaintiff in error.
    The delivery of the goods by Huntsman & Co. to defendant was a conditional sale. Where delivery of exclusive possession of goods accompanies an absolute or conditional sale, a reservation of lien or right of property in the vendor will not protect the property from the vendee’s creditors: Euwer, Assignee in Bankruptcy, &c., v. Van Giesen et al., Pitts. Leg. Jour. (July 9th 1879); Martin v. Mathiot, 14 S. & R. 215; Mitchel v. Commonwealth, 1 Wright 187; Rose v. Story, 1 Barr 190; Jenkins v. Eichelberger, 4 Watts 121; Waldron v. Haupt, 2 P. F. Smith 408; Heppe v. Speakman, 7 Phila. R. 117; Farrell v. Nathans, 1 Id. 557; Lehigh Co. v. Field, 8 W. & S. 241; Henkles v. Brown, 4 Phila. R. 299; Haak v. Linderman & Skeer, 14 P. F. Smith 499; Becker v. Smith, 9 Id. 469; Welsh v. Bell, 8 Casey 12; Wait v. Green, 86 N. Y. 556; Smith v. Lynes, 1 Selden (N. Y.) 42; Murch v. Wright, 46 Ill. 487. Enlow v. Klein, 29 P. F. Smith 488, is distinguishable from this case.

      Kennedy £ Doty, for defendants in error.
    The evidence was uncontradicted that the written agreement embodied the terms and conditions upon which the goods were delivered. This was for the court to interpret, and it was rightly held to be a bailment and not a conditional sale: Enlow v. Klein, supra; Rose v. Story, 1 Barr 190; Clark v. Jack, 7 Watts 375; Myers v. Harvey, 2 P. & W. 481; Lehigh Company v. Field, 8 W. & S. 232; Chamberlain v. Smith, 8 Wright 431; Rowe v. Sharp, 1 P. F. Smith 26; Becker v. Smith, 9 Id. 469; Henry v. Patterson, 7 Id. 346 ; Crist v. Kleber, 29 Id. 290; Sterling v. Goodrich, 23 Pitts. Leg. Jour. 174.
   Mr. Justice Paxson

delivered the opinion of the court, January 5th 1880.

It has long been an established rule in Pennsylvania, that a sale and delivery of personal property, with an agreement that the ownership shall remain in the vendor until the purchase-money is paid, is fraudulent and void as to the creditors of the vendee, and innocent purchasers. Yet there are exceptions to the rule that possession must .accompany the ownership of chattels. It was said by Tilghman, C. J., in Martin v. Mathiot, 14 S. & R. 214, that “There are certain necessary and lawful contracts by which the owner parts with the possession, and yet fraud cannot be presumed. Such are the contracts offending and hiring, both very useful, and without which society could not well exist. It is of the essence of these, that the owner should give up the possession for a time.” Various devices have been resorted to at times to evade the above rule, but it is believed in the long line of cases upon this subject it has not been substantially departed from. There have been numerous cases of bailment, some of them perhaps very close upon the border, where no present contract of sale is made, that have been excepted from the operation of the rule. Any apparent conflict between decided cases is doubtless owing to the difficulty of applying the principle referred to, to the facts of a particular case.

The transaction between the plaintiffs below, and O. B. Carpenter, .was not a bailment either in form or substance. It was not a lending of the goods, nor was it a contract of hiring. It was a sale of the furniture for a stipulated sum or price, and was so charged upon plaintiffs’ books. The delivery, however, was made upon an agreement signed by Carpenter to pay “ not less than five dollars for each succeeding week, until the above amount ($118.75, the price of the articles) is paid; the goods above enumerated to be and remain the property of D. W. Huntsman & Co., subject to removal by them or their order, upon any failure to make any or all of the above payments.” The purchaser having received the furniture under this agreement, placed it in his house, and failed to make any of the stipulated payments; and finally sold it to the defendant below, who took it without notice of the agreement. The court below held under the authority of Enlow v. Klein, 29 P. F. Smith 488, that the defendant took no title, and the plaintiffs were entitled to recover.

A number of authorities were cited as sustaining the ruling of the court. A brief reference to them may not be out of place. Clark v. Jack, 7 Watts 375, was a loan of personal property, subject to be turned into a sale at a future time upon compliance with certain conditions. It was said by the court: “ Properly speaking, there was not a sale, but a contract to sell at a future day, and the delivery in the meantime was a loan subject to be turned into a sale by compliance with certain conditions.” Myers v. Harvey, 2 P. & W. 478, was a clear case of bailment. The personal property in question had been purchased at a sheriff’s sale and left in the possession of the defendant, under a lease from the purchaser. In Lehigh Company v. Field, 8 W. & S. 232, there was merely an agreement for a future sale. There was no present sale between the parties; the boatmen were the servants of the company; the boats in question remained in the ostensible ownership of the company; they retained their places on the company’s register and were not distinguishable from their other boats; the men had merely the privilege of buying them at a future time when a bill of sale was to be made therefor. Rose v. Story, 1 Barr 190. is an authority so strongly the other way, that we need not discuss it. No fault is found with the principle cited therefrom, that “ where, by the terms of the contract, the vendee receives a chattel to keep for a certain time, and then to become the owner of it, if he has paid the stipulated price, otherwise to pay for its use, he receives it as bailee, and the property is not changed until the price is paid.” This principle does not apply here, for we have no such facts. Rowe v. Sharp, 1 P. F. Smith 26, was a bailment. Sharp by writing let to Goff two billiard tables for nine months, Golf to use them at his place of business; pay a certain sum for their use, and at the end of the term to re-deliver them ; and if then Goff had complied with the covenants of the agreement, Sharp was to make him a bill of sale of the tables, the consideration for which was to be the sum paid for their use. This was held to be a bailment for the use of the tables, with provision for sale in case of payment of the price. In Chamberlain v. Smith, 8 Wright 431, there was a contract by which a yoke of oxen was delivered to a hirer, “ to keep and work in a reasonable former-like manner for the term of one year; said cattle to be returned in one year. But the said McWharter (the hirer) has the privilege, by paying $40 and legal interest at the expiration of the year, to keep said cattle.” Mr. Justice Strong who delivered the opinion of the court, in speaking of this contract said: “It was a bailment, not a sale; a bailment with a refusal of the cattle for a stipulated time. The bailee received them to keep and use. He engaged to keep and use them in a reasonable farmer-like manner, and to return them at the end of the year. All this looks to a contract of hire and nothing else. Then follows the provision, that if the bailee would pay a definite sum at the end of the period for which the cattle were let, they should be his, but without any obligation on his part to buy them. No doubt a sale and delivery of personal property, with an agreement that the ownership shall remain in the vendor, until the purchase-money is paid, enables creditors of the vendee to seize and sell it for the payment of his debts.” Henry v. Patterson, 7 P. F. Smith 346, was a case of bailment, as was also Becker v. Smith, 9 Id. 469. Enlow v. Klein, 29 P. F. Smith 488, relied upon by the court below, and the last of this series of cases, is an admittedly close case, and comes nearer sustaining the contention of the plaintiffs than any of those commented upon. . Yet we regard it as rightly decided and easily distinguishable from the one in hand. An examination of the facts shows, that it was a case of hiring; that $2 per week of the sum to be paid, was for the use or hire of the horses. This clearly appears in the report of the facts, and is also referred to in the opinion of our lamented brother Woodward. This was an important feature of the case in our consultation, and is referred to now, that it may not be misunderstood hereafter. Enlow v. Klein was justified by the authorities, and we do not propose to disturb it. But we will not take one step beyond it. We stop just where it ends.

The force of the argument for the plaintiff was spent in showing that a case of bailment is not within the rule laid down for conditional sales. The principle is conceded, but it has failed in showing the existence of a bailment. On the contrary it was a sale, and comes directly within the ruling of Clow v. Woods, 5 S. & R. 275; Babb v. Clemson, 10 Id. 419; Martin v. Mathiot, 14 Id. 214; Jenkins v. Eichelberger, 4 Watts 121; Rose v. Story, 1 Barr 190; Mitchell v. Commonwealth to use, 1 Wright 187; Waldron v. Haupt, 2 P. F. Smith 408; Haak v. Lindermann, 14 P. F. Smith 499, and similar cases.

The judgment is reversed and judgment non obstante veredicto for the defendant upon the reserved point.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Holmes versus Bailey.
    1. Where a bill of lading is attached to a draft as security for its payment, and transferred for a valuable consideration, it is an appropriation of the property contained in the bill, whether it is endorsed or not. Nor is it material that the draft is for more than the proceeds of the shipment.
    2. Holmes v. The German Security Bank, 6 Norris 525, followed.
    November 5th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 70.
    Assumpsit by B. K. Bailey, for use of W. P. Stallings, against William Holmes and others, trading as Holmes, Lafferty & Co.
    On the 9th of October 1876, Stallings, the equitable plaintiff, sold to Bailey, the legal plaintiff, twenty-two head of cattle for §>1099.45, and on the same day Bailey shipped seventeen of these cattle at Louisville, Kentucky, by the Louisville, Cincinnati & Lexington Railroad Company, to the defendants, who are live-stock commission merchants at Pittsburgh, Pennsylvania, and received from said railroad company a bill of lading for the said seventeen head. On the same day Bailey also drew a draft on the defendants for the price of said cattle ($1099.45), payable to the order of Stallings five days after sight, which draft he delivered to Stallings together with the said bill of lading, and Stallings caused the draft with the bill of lading accompanying it to be sent to the defendants for payment, and they were presented to them on the 11th of October 1876, but defendants refused to accept the draft, and it was thereupon protested for non-acceptanc'e. On the next day the defendants received the said seventeen head of cattle and sold the same for $883.17, being the net proceeds after payment of charges for transportation, &c.
    On the 9th of October 1876, the day of the shipment of the said seventeen head, the remaining five of the twenty-two head purchased by Bailey from Stallings, were shipped by Bailey in a separate car with eleven head which Bailey had bought from Brown & Jones, of Louisville, Kentucky, and these sixteen were all consigned in the name of Brown & Jones to the defendants, who sold the same on the 12th of October 1876, and received from the sale of the said five head purchased from Stallings $284.07 as the net proceeds thereof.
    On the 19th of said month, the said draft was again presented to the defendants for payment, which being refused, it was thereupon protested for non-payment.
    The plaintiff maintained that the delivery to him of said bill of lading with the draft payable to his order was an assignment of a sufficient amount of the proceeds of the sale of the said twenty-two head of cattle to pay the amount of said draft, and that the presentation of the draft to the defendants before the delivery of the cattle was notice of such assignment, and that they were then bound to retain and apply the proceeds thereof to the payment of said draft.
    On part of the defendants, however, it was proved and not contradicted that on the 12th of October 1876, when all these cattle were received by them (the seventeen head being in one car shipped in the name of B. K. Bailey, and the sixteen in another car-shipped in the name of Brown & Jones), the defendants also received a letter from Bailey, dated the 10th of the same month, notifying them of the shipment of the said two car-loads of cattle, and that eleven head had been purchased from Brown & Jones, with instructions to pay a draft drawn by Brown & Jones on defendants on account of the cattle bought of them and out of the balance of the proceeds to pay whatever he (Bailey) was then owing the defendants, and to remit to him the remainder.
    In pursuance of these instructions, the defendants accordingly applied the proceeds of the cattle as follows:

      On the 13th of October 1876, to balance due from B. K. Bailey to defendants on a former account, . . $387.90
    October 14th 1876, to payment of draft of Brown & Jones on defendants, ...... 647.20
    October 14th and 16th 1876, to remittance to B. K. Bailey as per his direction, ..... 780.21
    Which sums, amounting in all to $1815.31, exhausted the entire proceeds of the said two car-loads, and were applied and paid out in obedience to the aforesaid letter of instructions from Bailey before said draft was presented for payment. It further appeared that when the draft was presented for acceptance, not only was there nothing in defendants’ hands due or belonging to Bailey, but the latter was then indebted to defendants in the sum of $387.90 on account of prior transactions.
    At the trial, before Stowe, P. J., the plaintiff, inter alia, submitted the following point, to which is subjoined the answer of the court:
    3. That the draft drawn by Bailey to the order of Stallings, for $1099.45 at five days’ sight, and addressed to the defendants, being for value, to wit: the price of said twenty-two head of cattle, the delivery of the bill of lading, at the same time, by said Bailey to said Stallings, as security for said draft, transferred the right of property in the seventeen cattle embraced in said bill of lading, or the proceeds of the sales thereof, to said Stallings, [and if the jury believe that five of said cattle, being the residue of the cattle purchased from Stallings by Bailey, were shipped in the name of Brown & Jones, and the same were received by the defendants, and they knew they were part of the Bailey shipment for which said draft was drawn, the plaintiff is entitled to recover the full amount of his claim],
    Ans. “ This point is double, and refused as a whole. The first part to the bracket is affirmed; the latter part within brackets is refused.”
    The following were the points of defendants with the answers of the court:
    1. That the bill of lading attached to the draft in suit being for only seventeen head of the cattle shipped to defendants, and the proceeds thereof being only $883.17 (less by $216.28 than the amount of said draft) the defendants were not bound to apply the same towards the payment of the indebtedness represented by said draft.
    Ans. “Refused.”
    2. That as the net proceeds of the twenty-two cattle bought by Bailey of Stallings was considerably in excess of the amount of said draft (the difference being $67.74), the said draft with the bill of lading accompanying it, did not operate as an assignment of a sufficient amount of said proceeds to entitle Stallings to recover the same from the defendants in this action, without their consent and in the absence of an acceptance or agreement on their part to pay it.
    Ans. “ This is affirmed. It did not appropriate the proceeds of the twenty-two head of cattle, but the draft with the bill of lading for seventeen head was an appropriation of the net proceeds of said seventeen head of cattle.”
    3. That if the jury find that the defendants, after the receipt of the cattle in dispute, applied the proceeds thereof as directed by B. K. Bailey in his letter of October 10th 1876, and that such application was made before the presentation of said draft on the 19th of said month, then the verdict should be for the defendants.
    Ans. “Refused.”
    4. That under all the evidence in the case the verdict should be for the defendants.
    Ans. “ Refused.”
    Verdict for plaintiff for the net proceeds of the sale of the seventeen cattle, with interest. Defendants took this writ, and alleged that the court erred in the answers to the above points.

      Thomas C. Lazear, for plaintiffs in error.
    The bill of lading attached to the draft was not even endorsed, nor was there any writing on it which purported to be an assignment of its contents. That the draft, of itself, did not amount to an appropriation, so as to entitle the plaintiff to recover in this action, we refer to Hopkins v. Beebe, 2 Casey 85, in which it was said, that a bill of exchange does not, propria vigore, vest in the payee a title to the effects sent to meet it, or give the payee a lien upon such effects, so that he can demand them or their proceeds. To the same effect is Farmers’ and Mechanics’ Ins. Co. v. Simmons, 6 Casey 299; Mrs. Greenfield’s Estate, 12 Harris 240; Lloyd v. McCaffrey, 10 Wright 410; First Nat. Bank of Mt. Joy v. Gish, 22 P. F. Smith 13.
    But, again, it is also an undisputed fact in the case, that the draft amounted to much more than the proceeds of the cattle embraced in the bill of lading which accompanied it. It is submitted that the case in this respect, is analogous to that of a bank check for which the drawer has not provided sufficient funds to pay the whole amount.
    A bank is not bound to pay a part of a check when if has not funds for the whole: 2 Pars, on Notes and Bills 78; In re Brown, 2 Story 502, 516.

      William L. Qhalfant, for defendant in error.
    Holmes, Lafferty & Co. v. German Security Bank, 6 Norris 525, rules this case. The function of the draft, with the bill of lading attached, was to transfer the seventeen cattle embraced in the bill of lading, or. the proceeds thereof, when they were sold, no difference whether the draft included other cattle in another bill of lading or not.
    A general endorsement, without anything further, might have transferred to Stallings the proceeds of the draft itself, in which case the defence to Stallings that the draft was for more than'the proceeds of the cattle transferred to Stallings by the bill of lading, might have been available. But the attachment of the bill of lading for the seventeen cattle to the draft qualified and limited the appropriation to the proceeds of the seventeen cattle included, in the bill of lading. The property or the proceeds thereof belonged to Stallings, and the transaction raised such privity, as would sustain an aetibn for money had and received.
   The judgment of the Supreme Court was entered November 17th 1879,

Per Curiam.

This case, we think, cannot be distinguished from Holmes v. German Security Bank, 6 Norris 525. It was held in that case that, where a bill of lading is attached to a draft as security for its payment, and transferred for a valuable consideration, it is an appropriation of the property contained in the bill whether it is endorsed or not. We do not' see that the fact that the draft in this case was for more than the proceeds of the shipment makes any difference. The consignee was entitled to a receipt from the holder as his voucher, and an endorsement of the part payment on the draft which would have made him perfectly secure.

Judgment affirmed.


author: Mr. Justice Trunkey

text:
    Bidwell versus Bidwell.
    1. The jurisdiction vested in the courts of the United.States, of all matters and proceedings in bankruptcy, is exclusive.
    2. A composition with creditors is authorized to be made only in cases pending in court, and is of no validity until confirmed by the court, and then is binding on all creditors who were named and made parties..
    3. If the composition be not confirmed, or if.the same be set aside, in either case the debtor shall be proceeded with as a bankrupt.
    4. Pending the petition in bankruptcy and before the court shall have confirmed the composition the courts of the state cannot interfere; nor can they afterward. While the composition stands, the creditor who is bound by it, cannot maintain an action for the original debt; he is barred everywhere, except in an application to the court where the confirmation was made to amend it for cause.
    November 6th 1879.
    Before Sharswood, C. J., Merour, Gordon, Paxson and Trunicey, JJ. Sterrett and Green, JJ., absent.

      Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 28.
    On the 15th day of August 1877, John C. Bichvell, the defendant, filed a petition in the District Court of the United States for the Western District of Pennsylvania, for the adjudication of himself in bankruptcy, and subsequently made a composition with his creditors at thirty cents on the dollar of their respective claims, payable in three instalments of ten per cent, each, in six, twelve and eighteen months after confirmation by the court, which composition was duly confirmed and went into effect January 28th 1878; the said instalments maturing on the 26th day of July 1878, and the 26th day of January and July 1879, respectively. D. W. 0. Bidwell, the plaintiff in error and below, was one of the creditors of said J. C. Bidwell whose debt was included in said composition, and assented to said composition. The said J. C. Bidwell defaulted on the first instalment, due July 26th 1878 ; and on the 17th day of August 1878, the said D. W. C. Bidwell entered judgment in the court below for $38,850 real debt, upon a bond and warrant of attorney held by him, dated December 1875, being for the full amount of his original claim against J. C. Bidwell, soíar as the same was covered by said bond.
    • Execution was issued thereon at October Term 1878, and levy made upon the personal property of said defendant, whereupon the said defendant notified the sheriff that the property levied upon was not his property, but it belonged to him in trust for his creditors. On the 24th day of September 1878, the said defendant tendered plaintiff the amount of the first instalment of composition, due him, with interest, which plaintiff refused to accept. On the 12th of October 1878, the court granted a rule on the plaintiff and the claimant, the defendant herein, to show cause why they should not maintain or relinquish their respective claims to said property. And on November 27th 1878, a rule on the plaintiff to show cause why the levy should not be set aside, the execution stayed and the judgment opened upon which the same had been issued. And on December 4th 1878, after argument, set aside the execution and directed the sheriff to withdraw from his levy. ■ The motion to open the judgment was held further consideration. Whereupon the plaintiff below took out this writ and alleged that the court erred in setting aside the execution and directing the sheriff to withdraw from his levy.

      Bruce cf- Negley, and W. K. Jennings, for plaintiff in error.—
    When creditors agree to accept the composition of a debtor, the latter becomes entitled to all the rights of ownership over the whole of his property: Ex parte Burrell, Law Rep., 1 Ch. Div. 537; Ex parte Hamlin, 16 N. B. R. 320; In re Reiman, 11 Id. 320; In re Van Auken, 14 Id. 426 ; In re Lytle, 14 Id. 460.

      The correct practice, as it seems to us, and the one most in accordance with the spirit of the Bankrupt Law, is the one in vogue in England under their statute, and not without authority in our country, which is to allow a creditor, upon default in payment of one or more instalments of a composition, the option of seeking redress through the regular channel of bankruptcy, or of considering the composition void as to him and suing upon his original demand: Edwards v. Coombe, 7 Law Rep., C. P. D. 519; Goldney v. Lording, Law Rep., 8 Q. B. 182; In re Hatton, Law Rep., 7 Chancery Appeals 723. The creditor in the event of the nonpayment of the composition, according to its terms, is remitted to the rights which he possessed at the time the proceedings were instituted: Blumenstiel’s Law and Practice in Bankruptcy 451; Wollaston Bank v. Porter, 17 N. B. R. 329; Pierce v. Gilkey, 8 Rep. 242; Reiman v. Friedlander, 13 N. B. R. 128; Wells v. Lamprey, 16 Id. 206.

      Kennedy Doty for defendant in error.
    The composition'is a compromise of a debtor with his creditors, carried on under the regulation of law, and under the supervision and sanction of the court. It absolutely discharges the debts of those creditors whose names, addresses and debts are placed in the statement produced at the meeting of creditors, and no other discharge is needed: In re Bechet, 12 N. B. R. 202; Pool v. McDonald, 15 Id. 560.
    The English authorities cited by plaintiff, are to the effect claimed by him, viz.: that a failure to pay the composition in accordance with its terms, revives the original debt; but these are under the English statute, which differs materially from ours. The distinctions are clearly pointed out in the cases cited hereafter. Under the English statute no proceedings in bankruptcy are necessary. The creditors can meet together, and by an extraordinary resolution, without the intervention of the court, make composition with the debtor, and, if accepted by the requisite number of creditors, the registrar is to register the resolution, and it thus becomes binding on all. This, however, is but an agreement between the debtor and creditors, and unless performed by the debtor, ceases to bind the creditors and revives the original debt.
    There is also a broad distinction between the arrangement of the courts in England with reference to jurisdiction, and between our federal and state courts. The federal courts have exclusive jurisdiction over all matters of bankruptcy. The true doctrine upon the question of júrisdiction is well laid down in Deford v. Hewlett, 18 N. B. R. 518, and In re Bayly and Pond, 19 Id. 73.
   Mr. Justice Trunkey

delivered the opinion of the court, January 5th 1880.

Section 17, of the Act of Congress of June 22d 1874, is an addendum to the 43d section of the Act of 1867, and provides a second mode for the discharge of bankrupts. It enacts that in all cases of bankruptcy, the creditors of the alleged bankrupt may, at a meeting called under the direction of the court, resolve that a composition proposed by the debtor shall be accepted in satisfaction of the debts due them ; that such resolution, to be operative, shall be passed by a majority in number and three-fourths in value of the creditors assembled, and confirmed by the signatures of the debtor and two-thirds in number and one-half in value of all his creditors ; that the debtor shall produce to the meeting a statement of his assets and debts, and the names and addresses of the creditors to whom such debts are due; that such resolution, together with said statement, shall be presented to the court, and the court, after a prescribed notice, upon hearing, if satisfied of certain facts, shall cause the resolution to be recorded and statement to be filed, and until such record and filing the resolution shall have no validity ; and thereafter the provisions of the composition “shall be binding on all the creditors whose names and addresses and the amounts of the debts due to whom are shown in the statement of the debtor produced at the meeting at which the resolution shall have been passed, and shall not affect or prejudice the rights of any other creditors.” “ The provisions of any composition, made in pursuance of this section, may be enforced by the court, on motion made in a summary manner by any person interested, and on reasonable notice.” “If at any time it shall appear to the court, on notice, satisfactory evidence and hearing, that a composition under this section cannot, in consequence of legal difficulties, or for any sufficient cause, proceed without injustice or undue delay to the creditors or to the debtor, the court may refuse to accept and confirm such composition, or may set the same aside; and, in either case, the debtor shall be proceeded with as a bankrupt, in conformity with the provisions of law, and proceedings may be had accordingly.” The statute is thus referred to at length because it plainly shows what a composition is, its effect, how it may be set aside, and what shall follow its annulling. It is authorized to be made only in cases pending in court, is of no validity until confirmed by the court, and then is binding on all creditors who were named and made parties. No procedure under the bankrupt law is more under the control and supervision of the bankrupt court than this. The jurisdiction vested in the courts of the United States, of all matters and proceedings in bankruptcy, is exclusive. If the composition be not confirmed, or if the same be set aside, in either case the debtor shall be proceeded with as a bankrupt. Pending the petition in bankruptcy, and before the court shall have confirmed the composition, the courts of the state cannot interfere; nor can they afterward. While the composition stands the creditor, who is bound by it, cannot maintain an action for the original debt; he is barred everywhere, except in an application to the court where the confirmation was made to annul it for cause.

It has been decided by the Court of Appeals of Maryland, that “ the creditors have no right to resort to the courts of the state for the recovery of their claims, nor to invoke their authority for the redress of their alleged grievances:" Deford v. Hewlett, 18 N. B. R. 518. In that case, the distinction between the English statute and the Act of Congress is pointed out, and the able opinion concludes with the remark: “ Until the bankrupt performs the terms of the composition by payment in money, or his promissory notes to be treated as money, the composition is incomplete and ineffectual; but that would not invest the state court with jurisdiction, the remedy must be sought in the bankruptcy court, and the provisions of the statute point out the mode of redress, and that must be exclusive; but when performed the result provided for in the act necessarily follows.” Like principle was declared in Leggett v. Barton, 11 Vroom (N. J.) 83, where it was said: “The payment’, is within the court’s control; enforceable by its order and by attachment for disobedience. And the proceeding is, when concluded, made binding upon all creditors of the bankrupt, whether participants or not. It operates to discharge the debtor from his debts.”

In argument, Hamlin’s Case, 16 N. B. R. 324, was cited, wherein it.was said by the learned judge of the District Court of the United States, that creditors whose dividends have not been paid, may bring actions at law. It may be inferred from the context that he meant by this dictum an action for recovery of the sum the debtor agreed to pay in the composition, and not the original debt. If such be not his meaning, we think it in conflict with the Bankrupt Act. Reference was also made to the case of Pierce v. Gilkey, 6 The Reporter 242, which is based solely on English decisions. Of the effect of the latter, when applied to a composition under the the Act of Congress, enough has been said in Deford v. Hewlett, supra, and in Bayley v. Pond, 19 N. B. R. 73.

The wisdom of creditors agreeing to a composition without payment of, or security for, the sums agreed to be paid by the debtor, concerns not in the decision of this case. That was for their consideration and the court’s, where the petition in bankruptcy was pending. That court, by the terms of the statute, had jurisdiction to enforce the composition, or to set it aside; and, if the composition, by its order, becomes invalid, then “ the debtor shall be proceeded with as a bankrupt.”

The court below was clearly right in setting aside the execution.

Judgment affirmed.


author: Mr. Justice Gordon

text:
    Wharton Bros. & Co. versus Douglas & Son.
    Where materials are furnished for a new building intended to be used in connection'with an old manufacturing establishment, the mechanics' lien therefor should be filed specifically against the new erection, and it is fatal to the claim to file it against the general building.
    November 6th. 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas No. 1, of Allegheny county: Of October and November Term 1879, No. 303.
    Scire facias sur mechanics’ lien by W. Douglas & Son against Wharton Bros. & Co., in right of the Boatmens’ Fire and Marine Insurance Company.
    About 1863 Wharton Bros. & Co., erected the Ormsby Iron Works in the borough of East Birmingham, now a part of the city of Pittsburgh. The works at first consisted of a rolling-mill ninety by one hundred and twenty feet, to which additions were built at various times prior to 1873, until it had a front on Twenty-fifth street of one hundred and twenty feet, and a depth of nearly three hundred feet along Wharton street.
    In the spring of 1873, the owners considered it expedient to replace the old boilers (which had been in -use since the mill was erected) with new ones, and on the 29th of April of that year entered into a written contract with Douglas & Son, by which the latter agreed to furnish a battery of three boilers for $4500. On the 2d of May a further contract was made for three additional boilers at the same price.
    The old boilers were in the mill proper, under the same roof with the engines, rolls and other machinery. The new boilers, however, were located and built about thirty feet from the mill, upon ground purchased by the firm in 1871, long after the erection of the original or main building, and were connected with the mill only by means of pipes running overhead to convey the steam to the engines. After their completion there was erected to cover them a frame building, resting upon heavy stone foundations.
    The contracts were let, as above mentioned, on the 29th of April and 2d of May respectively, and, according to the testimony of J. W. Douglas, who superintended their erection, the boilers were completed “some time in September.” Shortly afterward Wharton Bros. & Co. failed, and the contractors filed a mechanics’ lien for the construction of the boilers. This lien recited that “ said work was commenced on or about the first of May 187 3, and was finished on or about the 15th day of July 1873.”
    The lien was filed against the entire works, describing the building as fronting about one hundred and fifty feet on Twenty-fifth street, and extending in depth along Wharton street about two hundred feet, “ with a one-story frame back building between said main building and Water street, about forty feet by sixty feet in sjze. Said buildings being known as the ‘ Ormsby IronWorks,’ and being erected on a lot or piece of ground bounded on the north by said Water street, on the east by said Twenty-fifth street, on the south by said Wharton street, and on the west by Twenty-fourth street, and the lot or piece of ground and curtilage appurtenant to said building: The sum aforesaid being a debt contracted for work done and materials furnished, to wit: boilers and machinery, by the said claimants, within six months last past, in and about the erection and construction of the said building.”
    The works were offered at public sale on the 2d of April 1878, by the assignee in bankruptcy of Wharton Pros. & Co., and were purchased by the Poatmen’s Fire and Marine Insurance Company, who held a mortgage thereon. t
    At the trial before Collier, J., the defendants submitted, inter alia, the following points, which the court refused:
    2. If you believe, from the evidence, that the original mill and main building, were erected and completed more than six months before this mechanic’s claim was filed, your verdict must be for defendants — the said claim being by its terms for “ work done and materials furnished, to wit, boilers and machinery, in and about the erection and construction ” of said mill.
    8. If you believe that the boiler-house which contained the boilers for which this claim was filed, was erected as an addition to the original and main mill, the said claim should have been filed specifically for work done and materials furnished, in and about the erection and construction of such addition, and said claim not having been so filed, the plaintiffs are not entitled to recover.
    4. If you find that the boiler-house was a permanent and substantial building, the lien should have been filed against it, and as it has not been so filed, the plaintiffs cannot recover.
    Verdict for plaintiffs for $11555.52, and after judgment defendants took this writ, and alleged, inter alia, that the court erred in the answers to the above points.

      Rodgers £ Oliver and George P. Hamilton, for plaintiffs in error.
    The claim was filed against the buildings known as the Ormsby Iron Works. It being admitted that said works were built and in operation years before the claim was filed, no lien can be maintained for their erection: Ely v. Wren, 9 Norris 148.
    If the boiler-house was considered as an addition to the mill, thlien should have been filed specifically for the erection of such addition, and not for the erection of the entire mill: Pittsburgh’s Appeal, 20 P. F. Smith 146; Rynd v. Bakewell, 6 Norris 460; Wetmore’s Appeal, 10 Id. 276.

      If the boiler-house was a permanent and substantial building, sufficient of itself to support a lien, the claim should have been filed against it: Parrish’s Appeal, 2 Norris 111; Summerville v. Wann, 1 Wright 182; Miller v. Hershey, 9 P. F. Smith 64; Diller v. Berger, 18 Id. 432.

      Fetterman Johnston, for defendants in error.
    In filing a lien if it is alleged that the materials were furnished or the work done in and about the erection or construction of the buildings generally, it is not such a misdescription as to avoid the lien. For upon the proof of the facts, the lien would attach to the addition, and it would draw the lien to the whole property as if it had originally been filed against the addition alone: Harman v. Cummings and Wife, 7 Wright 322.
   Mr. Justice Gordon

delivered the opinion of the court, November 24th 1879.

W. Douglas & Son, the plaintiffs below, filed their mechanics’ lien “ against all that certain frame one-story iron mill or building situate in the-ward of the city of Pittsburgh, in the county aforesaid, and described as follows : Being situated on the northwest corner of Wharton and Twenty-fifth street, in the-■ ward of the city of Pittsburgh. Having a front on Twenty-fifth street of about one hundred and fifty feet, and a depth along Wharton street of about two hundred feet, with a one-story frame back building between said main building and Water street, about forty by sixty feet in size. Said buildings being known as the “ Ormsby Iron Works,” and being erected upon a lot or piece of ground bounded,” &c. * * * “ The sum aforesaid being a debt contracted for work and materials furnished, to wit: boilers and machinery, by the said claimants, within six months last past, in and about the erection and construction of said building.” But against what building is this lien filed ? Is it against the “ back building ” which appears incidentally as part of the general description of the “ Ormsby Iron Works?” Certainly not; but against the entire property as it appears upon the ground.

Moreover, the boilers and machinery are said to be furnished in and about the erection and construction of “ said buildingthat is, of course, in and about the erection and construction of the building described in the lien. If, indeed, this was a new erection, this lien would be good, but upon trial, it proves to be an old building upon which said lien could not attach. It seems to us that this is the end of the case, for it is all idle to say that the intention was to confine this lien to a new “back building,” which nowhere appears in the description, and to boilers and machinery used in the construction of such building, when, by the writing filed, they are alleged to have been furnished for the general building.

It is possible that, under the provisions of the Act of May 1st 1861, a lien against the new erection might have been good; but it is to no purpose to talk about what might have been, since it is enough, for the present purpose, to know that the lien before us does not attach to the building therein described. For authority for this conclusion, if indeed authority be necessary for a matter so very plain, we refer to the case of Rynd v. Bakewell, 6 Norris 460, which is directly in point. The defendant’s first point, “ under all the evidence in the case, the verdict should be for the defendant,” ought to have been affirmed.

Judgment reversed.


author: Mr. Justice Paxson

text:
    Williams's Appeal.
    Decedent died March 31st 1877, leaving a divorced wife and three minor children. No claim on behalf of the children for the §300 exemption was made at the time of the sale of decedent’s personal property, in May 1877. At that time the children had no guardian, nor was any appointed until October 1877. After his appointment the guardian filed a petition’ in the Orphans’ Court, averring that no demand had been made to set aside the §300, and praying for a citation on the executor to show cause why he should not do so. The Orphans’ Court in distributing the funds in the hands of the executor disregarded the claim for the exemption and gave the money to the creditors. Held, that this was not error, as the claim was too late.
    November 6th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1878, No. 202.
    Appeal of A. S. Williams, guardian of the minor (children of F. August Ruckert, deceased, from the decree of the court in the matter of the distribution of the estate of said decedent.
    F. August Ruckert, died testate on the 31st day of March 1877, Edward Ruckert being the executor of his last will and testament. The decedent left a divorced wife and three minor children, the oldest being nine years of age. John W. McArthur was appointed guardian of said minors on the 5th of October 1877, but he dying, A. S. Williams was subsequently, on the 10th day of June 1878, appointed their guardian. The executor filed an inventory of the decedent’s personal estate on the 12th of May 1877, amounting to the sum of $241.10. The then guardian, McArthur, filed a petition in the Orphans’ Court on the 27th of October 1877, praying for a citation to issue to said executor to show cause why he should not have appraised and set apart to the minor children of said decedent the sum of $300, out of the estate, which citation, since the taking of this appeal, has been dismissed. The executor filed his account on the 3d of June 1878, hut neglected to allow the said minors the sum of $300 claimed by them, and also failed to account for certain moneys received by him, as executor, from the St. Antonius of Padua Beneficial Association (of which association the decedent was a member), which moneys the present guardian claimed as belonging to his wards, according to the regulations of said association.
    To the account, the said guardian, on behalf of said minors, filed exceptions, among others, the following:
    1. The accountant does not charge himself with the sum of $88, paid him as executor by the St. Antonius of Padua Beneficial Association.
    2. The said guardian claims for said minor children the sum of $300, for which no allowance is made them in said account; said executor having been notified by the mother of said minor children, before and at the time he disposed of the goods and effects of said decedent, to “keep for the children what the law allowed them.”
    The first exception was sustained by the oourt — the executor admitting that he had received certain moneys from the before-mentioned association — and the executor was surcharged with the sum of $86.95, so received by him; but the second exception being dismissed, the balance of the fund, together with the money received from the association, was ordered to be distributed pro rata among the creditors, and the minor children received no share thereof.
    From this decree this appeal was taken.

      James H. Porte, for appellant.
    The wife being divorced, the minor children of the decedent should receive the $300 allowed them by the exemption laws. ' This sum is, and ought to be, preferred to all other claims or debts. If the demand was made in proper time the children can claim the statutory allowance in the executors’ account, without any separate appraisement: Soult’s Appeal, 1 Norris 153.
    By the by-laws of the St. Antonius of Padua Beneficial Assocition, we find the following printed regulation: “ Each member is bound to pay, for the benefit of the widow',' or orphan, or legal heirs, * * * the sum of fifty cents,” &c.
    The executor having received this amount, was in duty bound to pay it to the decedent’s minor children, and it was error for the court to decree that it be paid to the creditors of the estate.

      Miller & McBride, for the executor.
    According to the plaintiff’s own showing, no demand was made upon the executor to have $300 set apart for the use of the children of the decedent, until the sale of the personal property was in progress. The defendant denied that any demand w'as made on him until the service of the citation. Even if the plaintiff’s testimony is accepted as true, the demand came too late, as has been repeatedly decided: Neff’s Appeal, 9 Harris 243 ; Davis’s Appeal, 10 Casey 256.
    As to the fund paid to the executor by the Beneficial Association, the executor was a mere stakeholder, and did not charge himself with it in his account filed, because he did not know whether it Was an asset of the estate of the decedent or not.
    The appellant having asked that his account be surcharged with that item, cannot now change his ground at the costs of the executor. There was evidence in the case justifying the decree of the court below upon the question of demand.
   Mr. Justice Paxson

delivered the opinion of the court, November 17th 1879.

It may be that these minor children would have been entitled to the $300 exemption had the claim therefor been made in proper time. The Act of 14th April 1831, Pamph. L. 613, allows it to the widow or children of any decedent. If, however, there be a widow the entire amount of $300 must be paid to her, without respect to children: Nivens’s Appeal, 11 Wright 230. And the right to the exemption is a personal privilege which she may waive. The privilege is waived entirely if she neglect to demand an appraisement: Davis’s Appeal, 30 Casey 256. The demand to have it set apart must be made before sale: Neff’s Estate, 9 Harris 243. And before the executor has incurred expenses in proceeding to effect a sale, (Davis’s Appeal, supra), or the expenses of a full administration: Baskin’s Appeal, 2 Wright 65. In the case in hand the minor children had a mother living, but she had been divorced from the decedent, and was not his widow. There was some evidence, but very slight, that she made a claim on behalf of the children at the time of the sale of the personal property. This was in the month of May. At this time the children had no guardian, nor was any appointed until the 27th of the following October. After the guardian was appointed he filed a petition in the Orphans’ Court, averring, inter alia, that no demand has been made upon the executor to set aside the $300, and praying for a citation to him to show cause -why he should not do so. The Orphans’ Court, in making distribution of the funds in the hands of the executor, disregarded the claim for exemption, and gave the money to the creditors. We see no error in this. The claim, under all the authorities, came'too late. That the children had no guardian until after the sale, does not help the matter. Their mother was their natural guardian and entitled to look after their interest. The executor was not required to set aside the exempt property until after demand made. However proper it might have been for him to have taken some step in the way of securing the rights of the children, as at least notifying their next friend as to what their rights were, he does not appear to have done so, and we cannot say that his legal duty as executor required it.

We are of opinion, however, that the court below erred in distributing the $86.95 received by the executor from the St. Antonius of Padua Beneficial Association. By the constitution and by-laws of the association this money was not payable to the executor, but belonged to the children of decedent. He did not receive it as executor, and it was a mistake to surcharge him with it. As that has been done, it can be remedied by distributing it to the children.

The decree is reversed to the extent of the said sum of $86.95, which is ordered to be paid to the appellant; the costs of this appeal to be paid by the appellee out of the estate in his hands remaining after the payment of the sum aforesaid.


text:
    Birmingham Fire Insurance Co. versus Commonwealth ex rel. Kuehneisen.
    1. A mandamus for the transfer of stock will not be granted where the relator has an adequate remedy in an action on the case for damages.
    2. If the courts were inclined to enlai*ge the remedy by mandamus, it will not be done in a case where the right is disputed.
    November 7th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrbtt and Green, JJ., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 254.
    This was a petition for a mandamus by the Commonwealth ex relatione Adolph Kuehneisen against William Ruske, Secretary of the Birmingham Fire Insurance Company, to compel the transfer on the stock books of said company of ten shares of stock alleged to have been purchased by relator at sheriff’s sale.
    The relator obtained a judgment against Louis Kuehneisen, on which a fi. fa. was issued, returnable to first Monday of April, and placed in the sheriff’s hands January 21st 1878. In pursuance of the fi. fa., the sheriff levied upon and sold some personal property, on the 81st of the same month, but the proceeds were not sufficient to satisfy the writ. He then, on the 12th of February, in pursuance of the same writ, levied upon ten shares of stock in the Birmingham Fire Insurance Company, standing in the name of the defendant, Louis Kuehneisen, and sold the same to the plaintiff on the 20th of Februai’y. He executed and delivered a bill of sale of. the stock to the plaintiff, who, on the 21st March presented the same to the insurance company, and demanded of the secretary, William Ruske, a transfer of the stock to him on the books of the company, which was refused.

      The answer admitted these facts, but denied the plaintiff’s right to a mandamus: (1) because the secretary had no right to transfer the stock, and, (2), a sale of the stock to another party. It averred also that on a judgment of the Birmingham Fire Insurance Company against F. Kohne and Louis Kuehneisen, for the use of Charles Mel-ling, an execution-attachment was issued January 23d 1878, and served the same day on William Ruske, Secretary of the Birmingham Fire Insurance Company, attaching the said ten shares of stock standing in the name of Louis Kuehneisen. Interrogatories were served upon the secretary on the 12th February 1878, which he answered on the 18th, and admitted that “the said Louis Kuehneisen, one of the defendants, is the owner of ten shares of stock in the Birmingham Fire Insurance Company, unattached, of the par value of $50 per share, of which amount $35 per share has been paid, and said stock, as appears by our books, stands in his name.” On this answer judgment was entered against the garnishee (the Birmingham Fire Insurance Company) on the 16th March’1878, directing a sale of the stock, on which execution was issued and the stock sold April 10th 1878, to Charles Melling.
    The court, White, J., in an opinion, inter alia, said:
    “ The question is: Which purchaser is entitled to the stock ?
    Adolph Kuehneisen’s execution was in the sheriff’s hands January 21st 1878, two days before the execution-attachment of Charles Melling was issued; but the attachment was served upon the Fire Insurance Company on the 23d January, and the levy upon the stock under Kuehneisen’s fi. fa. was not made until the 12th of February. The sale on the fi. fa. was on the 20th February, and on the judgment against the garnishee on 10th April.
    “ If the lien of the fi. fa. on the stock dates from the time it was placed in the sheriff’s hands, it has priority over the execution-attachment ; if only from the date of the levy, it is subsequent.
    “ At common law a fi. fa. was a lien upon the goods and chattels of the defendant from the teste of the writ, even before delivery to the sheriff. But in this state it has always been a lien from the time of its delivery to the sheriff. Stock in a body corporate, however, could not be levied upon and sold on a fi. fa. until after the passage of the Act of 29th March 1819. That act expressly provided that ‘the stock of any body corporate owned by any individual or individuals * * * in his or her * * * own name, shall be liable to be taken in execution and sold, in the same manner that goods and chattels are liable in law to be so taken and sold.’
    “ The sheriff cannot under a junior execution levy upon and sell goods and chattels which he may not have levied upon under a former execution, and apply the proceeds to the junior execution, even if the property had come into possession of the defendant after the first execution had been issued. He is bound to sell under all the writs in his hands and apply the proceeds to the executions according to their priorities in time: Duncan v. McCumber, 10 Watts 212; Earl’s Appeal, 1 Harris 485.
    “ There is no good reason why a distinction should be made between stock liable to be seized and sold on a fi. fa. and goods and chattels ; and the act seems to place it on the same footing. It ‘shall be liable to be taken in execution and sold in the same manner that goods and chattels are liable in law to be so taken and sold,’ are the words of the statute. They are liable to be taken and sold from the time the writ is placed in the hands of the sheriff; in fact they are, in law, taken and seized from that date, without a levy: Watmough v. Francis, 7 Barr 206; Wilson, Seiger & Co.’s Appeal, 1 Harris 429; Schuylkill County’s Appeal, 6 Casey 358.
    In this case there is no controversy between the sheriff or his purchaser and an innocent purchaser before a levy; nor are there any intervening equities. Both claimants are purchasers at sheriff’s sale. The garnishee is a mere stakeholder, and not liable over to either party. The relator had the first execution and is the purchaser at the first sale. We think he is entitled to the stock.
    “ But the mandamus should not issue against the secretary alone. The corporation is the real party to be made defendant, and against whom the mandamus should be directed, including the secretary, however, if he is the proper officer to make the transfer.
    “Although the relator’s title is by virtue of the sheriff’s sale, yet he has a right to have the stock transferred in his name.
    “ The stock was sold, under the act, subject to any debts due by Louis Kuehneisen to the corporation, and these rights, if any exist, should be protected in the transfer.
    “ The counsel of the relator will take such further steps as may be necessary, under this opinion, to obtain a peremptory mandamus.”
    In a supplemental opinion the court said:
    “The opinion of the court filed March 7th 1879, was in favor of the relator, for the reasons then given. In pursuance of the suggestion then made, the Birmingham Fire Insurance Company has been made a defendant also, and brought into court. An •answer has been filed by said company. It sets up substantially the same facts as in the answer of the secretary, upon which the court have already passed. But it is now averred that the stock has been transferred to the purchaser under the attachment-execution, and is not under the control of the company. But no date is given. And from the former answer of the secretary, it is manifest the transfer has been made since that answer was filed, and in defiance of these proceedings.
    “ It is, therefore, ordered that a peremptory mandamus issue as prayed for and in accordance with the opinion of this court filed March 7th 1879.”

      The company took this writ and alleged that the court erred in ruling:
    1st. That the relator had the first execution and is the purchaser at the first sale. We think he is entitled to the stock. 2d. In ordering a peremptory mandamus to issue. 8d. In ruling that although the relator’s title is by virtue of the sheriff’s sale, yet he has a right to have the stock transferred in his name. 4th. In not refusing to issue the writ of mandamus in this case.

      Robb Fitzsimmons, for plaintiff in error.
    The second section of the Act of March 29th 1819, 7 Sm. L. 217, does not provide for making an execution a lien upon stock of a corporation from the time it goes into the hands of the sheriff. Stock can only be taken in execution by a levy. The statutory or common-law lien of an execution, where no levy had been made upon the goods and chattels of the defendant, was for the purpose of preventing collusive sales of personal property: Kelby v. Haggin, 3 J. J. Marshall 213; Tabb v. Harris, 4 Bibb 29. The relator lost his lien upon the stock, by causing the levy to be made upon the personal goods in the store: Walpole v. Ink, 9 Ohio 142; Hermon on Executions 271, 277.
    A prior lien or the first levy made gives a prior claim, which is entitled to prior satisfaction out of the fund to which it attaches: Wylie v. Hyde, 13 Johns. 249; Galbraith v. Fisher, 10 Harris 406; Becker v. Torrence, 31 N. Y. 631; Peck v. Robinson, 3 Head 438; McClelland v. Slingluff, 7 W. & S. 134.
    If, either by mistake or design, the sheriff levy goods in execution by virtue of the writ last delivered, and make sale of them, the property in the goods is transferred by the sale, and the party cannot seize ^ them by virtue of the writ first delivered, but he may have his remedy against the sheriff: Watson on Sheriffs 176; Watmough v. Francis, 7 Barr 214; Hermon on Executions, sect. 180, p. 262; Marshall v. McLean, 3 G. Greene 363; Peck v. Tiffany, 2 N. Y. 451; Duncan v. McCumber, 10 Watts 216; Commonwealth v. Contner, 6 Harris 439.
    When the sheriff sold the goods by virtue of the writ last delivered, the property of the goods was bound by the sale, and could not be seized under the first writ: Smallcomb v. Buckingham, 1 Lord Raym. 251; 1 Salk. 320; Payne v. Drewe, 4 East 523; Million v. Commonwealth, for use, 1 B. Mon. 310; Jones v. Atherton, 7 Taunt. 56; Schuylkill County’s Appeal, 6 Casey 358.
    The seizure or levy by attachment, as in this case, bound the said stock from the time of actual seizure, there being no levy on the same under the execution until afterwards; and even a sale under the execution would not affect the- title to the stock, although the prior execution may be entitled to the proceeds of the sale: Peck v. Webber, 7 How. (Miss.) 658; Smith v. Bradstreet, 16 Pick. 264; Van Loan v. Kline, 10 Johns. 129; Davenport v. Lacon, 17 Conn. 278; Hermon on Executions, sect. 180, p. 262 and notes.
    The relator is not entitled to relief in this proceeding. This is not a matter of public concern, and there is no need of the extraordinary remedy by mandamus: Shipley v. Mechanics’ Bank, 10 Johns. R. 484; Ex parte Fireman’s Insurance Co., 6 Hill 243; State v. Boonefeld, 46 Mo. 155; Baker v. Marshall, 15 Minn. 177; Kimball v. Union Water Co., 44 Cal. 173; King v. Bank of England, Doug. 524.

      Thomas S. Davis, for defendants in error.
    Shares of stock in incorporated companies standing in the name of debtor upon the books of the company, may be sold on a writ of fi. fa_.: Lex v. Potter, 4 Harris 295; Weaver v. Railroad, 14 Wright 314. It is difficult to see how any well-founded distinction can be created between such stock and other personal property, usually denominated “goods and chattels.”
    A fi. fh. binds all the defendant’s property in the bailiwick, from the time it is put into the sheriff’s hand, and binds the property whether a levy be made or not. It is urged, that by specific directions of the relator a levy was made, first upon the personal property of the judgment debtor at his store, on the 21st day of January, and that subsequently the seizure upon the stock in question was made; and that consequently, there was a temporary suspension of the lien of the execution upon the stock, and hence it was postponed to the lien of the attachment which was served in the interim.
    The proposition is predicated upon an incorrect statement of facts. It does not appear from the record in this case, that a levy was made on the property of Louis Kuehneisen, on the 21st day of January 1878, but rather on the 24th of said month; nor does it appear from the recited facts in this case, that specific directions were given the sheriff as to what property should be levied upon, but simply, that the goods in the store were sold by the sheriff on the 31st day of January 1878 ; and that on February 12th following, in pursuance of the same writ, the stock in question was seized at the office of the Insurance Company, and sold on the 20th of February.
    If neither the judgment nor sale was fraudulent in fact, the latter gave a good title to the purchaser; and property so sold cannot be followed, but resort must be had to the fund produced by the sale: Loucheim Bros. v. Henezey, Administrator, 12 P. F. Smith 498.
    Where the duty is incumbent upon a corporation to enter upon the register of the corporation the names of all the owners of its capital stock, this duty will be enforced by mandamus: Norris v.
      Irish Land Company, 8 El. & Bl. 512; Act of April 2d 1856, sect. 1; Act of May 17th 1871, Pamph. L. 891.
   Mr. Justice Trunkey

delivered the opinion of the court, November 17th 1879.

At the threshold the relator is met with the objection that mandamus will not lie for the reason that, even if his right to the stock be clear and the respondents have wrongfully refused to make the transfer, he has an adequate remedy in an action on the case for damages.

A mandamus, though a prerogative writ and demandable of right in a proper case, will be granted only in extraordinary cases, where there would otherwise be a failure of justice. We have used the mandamus only as a process in the last resort; never where there was a specific remedy. Thus it was refused in The Commonwealth v. Rosseter, 2 Binn. 362, where the object was to restore the relator to a pew in an incorporated church, because he had a remedy by action for the disturbance: Drexel v. Man, 6 W. & S. 386; Reading v. Commonwealth, 1 Jones 196. In Ex parte Fireman’s Ins. Co., 6 Hill 243, where certificates of bank stock had been assigned to the relator, and, on application, the bank had refused to make the transfer, it was ruled that, “ Where a corporation improperly refuses to transfer stock, the party injured has an ample though not a specific remedy by action; and for that reason a mandamus will not lie.” The same doctrine had been held in Shipley v. Mechanics’ Bank, 10 Johns. 484, where the court, on refusing the writ, remarked that it might as well be allowed in every ease where trover would lie. To same effect are Kimball v. Union Water Co., 44 Cal. 173, and Baker v. Marshall et al., 15 Minn. 177. Norris v. Irish Land Co., 8 E. & B. 512, perhaps goes further than the decisions in this country, for, in England, the inclination of the courts has been to enlarge the remedy by mandamus. In that case stress was laid on the fact that the company was established by royal charter, which made it their duty to keep the register and insert the names of the proprietors, in which, it was said, the public are largely interested, If the courts here were inclined to enlarge the remedy, it could not be done in a case where the right is disputed, where no public interest is involved, where no reason is shown for a transfer of a specific and favorite thing, and where the remedy by action is fully adequate.

Judgment reversed.


text:
    Emrick et al. versus Dicken.
    1. A municipal lien for a street improvement is a proceeding in rem. It is filed against the abutting or adjacent property and involves no personal liability on the part of the owner.
    2. As against the purchaser at a sheriff’s sale it cannot be shown that the name of the real owner, where the property was sold as that of an “ unknown owner” was known to the municipal authorities and should have been inserted in the lien. '

    3. By the express terms of the Act of April 1st 1870, any error or irregularity in regard to the name of the owner is cured by the sheriff’s sale.
    November 7th 1879.
    Before Sharswood,. C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny eownty: Of October and November Term 1879, No. 240.
    Ejectment by J. C. Dicken against Elizabeth Emrick and Joseph Patterson.
    George Emrick was for many years the owner of a lot in the city of Allegheny, upon which he lived with his family until his death in June 1876. In August 1873, the councils of the city adopted an ordinance for opening a street known as California avenue, in the neighborhood of, but not touching this lot. An assessment of benefits was made, and the sum of $44 assessed upon it. ' Upon the plan accompanying the report of viewers, there was no name attached to this lot, but in the report itself the name of George Emrick appeared as owner of it. October 13th 1874, a lien was filed in the Court of Common Pleas, in a book designated as Municipal Lien Docket, against “unknown owner,” describing the lot of Emrick. Upon this a scire facias was issued the same day, returnable to first monday of November 1874, which the sheriff returned as follows : “ After diligent search and inquiry being unable to find the owner or owners of the within described property within my bailiwick, I, therefore, October 31st 1874, posted a true and attested copy of this writ on the within described premises, and returned nihil as to defendants.”
    On July 8th 1875, an alias scire facias was issued, returnable to first Monday of August 1875, which was returned as follows: “July 31st, 1875, posted a true and attested copy of this writ on the within described premises, and also, gave notice by publication in one newspaper once a week, for two weeks.”
    Judgment was entered August 16th 1875, for $47.96, in default of appearance and affidavit of defence. On September 15th 1875, a levari facias was issued, return-able the first Monday of October 1875, upon which the property was exposed to sale, and sold to J. 0. Dicken, the plaintiff, for $105, and a deed made therefor by the sheriff, acknowledged October 16th 1875.

      George Emrick died in June 1876, and Elizabeth Emrick was appointed administratrix. On the 25th of August 1877, she filed her petition in the Orphans’ Court, for an order to sell the premises for payment of debts, and sold the same to Joseph Patterson, September 22d 1877, which sale was confirmed October 13th 1877. This suit was. brought to recover possession of the premises.
    Certain facts were admitted by the plaintiff, and the court directed a special verdict, which found all the material facts as follows:
    “ We find for the plaintiff for the land described in the writ, with six cents damages and costs, subject to the-opinion of the court on the question of law reserved, to wit: We find that the plot furnished to the viewers to assess damages and returned with the report of viewers, had no owner marked to this lot in question. That the formal report of viewers made the assessment against this lot and marked George Emrick as owner. That George Emerick was in fact owner of the lot in question at the time, but had neglected to have his ownership registered in the office of the city engineer, as required by the Act of Assembly, approved 2d April 1869, P. L. p. 644. That in fact, George Emrick was at that time living with his family in a two-story frame house on said lot, and continued to live thereon until the time of his death, in June 1876, and that he paid taxes thereon to Allegheny City up to the year 1875. The plaintiff’s title on which we find our verdict, rests on the record of the municipal lien, judgment, execution and sale thereon, with the Acts of Assembly in evidence, all of which are made a part of this verdict. If on these facts, the court be of the opinion that the law is with the plaintiff, then judgment to be entered on the verdict in favor of plaintiff. If the court be of the opinion, that the law is with the defendants, then judgment to be entered in favor of the defendants non obstante veredicto.”

    The court entered judgment for the plaintiff, when defendants took this writ and alleged that the court erred in this action.

      John S. Mueller and Slagle Wiley, for plaintiff in error.—
    The Act of 1870, sect. 15, P. L. 754, provides, that when the owner of a lot is unknown, the lien shall be filed against “unknown owner ” and indexed accordingly, and a scire facias may be issued thereon. The Act of May 20 1871, sect. 11, P. L. 1034, provides, “ that when a lien is filed against unknown owners and a scire facias issued thereon, the notice thereof shall be by posting a copy thereof on the premises, and advertising in one daily newspaper of said county once a week, for two weeks, a description of the lot, the amount assessed thereon, and for what purpose; and judgment may then be entered as now provided by law, and a writ of levari facias issued and proceeded on as in other cases.
    It will be observed that the return shows, that the posting of a copy of the writ, was not made until a few days before the return day; it does not show what notice was given by publication, though the Act of Assembly is specific as to the contents of the notice; nor does it show that the advertisement was made before the return day; nor that any advertisement was made in a daily newspaper, as required by law. The defects in this return are almost identical with those passed upon by the court in the case of Wister v. Philadelphia, 5 Norris 215, and held to be insufficient.
    It is true that the court in that case intimated, that such defects would not be available as against a purchaser at sheriff’s sale, and that position was taken more distinctly in the case of Delaney v. Gault, 6 Casey 63; but we submit that under a proceeding, entirely statutory, and as to which the requisites for judgment are specially prescribed, that there is no hardship in holding that the record must show a compliance with all conditions upon which the judgment is authorized to he entered, especially when taken without notice to parties interested.

      John S. Ferguson and J. Charles Pichen, for defendants in error.
    In Wister v. Phila., supra, the contest was between the city and the lot-owner. Here as in Delaney v. Gault, supra, it is between the negligent lot-owner and the purchaser, a stranger, at sheriff’s sale, who has paid his debt. Emrick must be presumed to have known of the opening of California avenue and the view thereon, and the assessment of benefits against him. The assessment was made some time prior to October 13th 1874, and the sale was not made until October 9th 1875. Even then the law gave him a year to redeem. He never attempted to pay or redeem for over two years after the assessment.
    The validity of the assessment cannot be denied. The assessment was not against George Emrick. The lot was the thing assessed, and to it alone the city looked for its money. It was entirely a proceeding inrem., and the requirement that the owner should be named, so far as such requirement existed, was hut a part of the machinery for collection. Emrick was not entitled to any personal notice, even if his name had not been omitted from the plot, until after the assessment had been filed in court — until a scire facias issued. How then can this be said not to have been a valid assessment ?
   Mr. Justice Paxson

delivered the opinion of the court, January 5th 1880.

A municipal lien for street improvements is a proceeding in rem. It is filed against the abutting or adjacent property, and involves no personal liability on the part of the owner. In many instances it is difficult to ascertain the name of the real owner. This is especially true as regards unimproved property. Deeds are often left unrecorded, and the record title is not always the true title. Hence it is that such liens are allowed to he filed against the reputed owner, or against an unknown owner. In such cases, however, the law has provided reasonable regulations to warn the real owner before his property can be sold under the lien. When the scire facias goes out it is required to be posted upon the premises, and notice given by publication before a judgment can be taken. With all these safeguards it sometimes happens that a property is sold and the title passed to the sheriff’s vendee without the knowledge of the owner. Yet, even here the act relative to Allegheny county gives him one year in which to redeem. See Act of April 1st 1870, Pamph. L. 751.

It was held in Delaney v. Gault, 6 Casey 63, that a sheriff’s sale under a judgment obtained upon a municipal claim, passes the title to the purchaser whether the real owner be named in the proceedings or not; and that the purchaser in such case is not bound to show that the Acts of Assembly have been strictly complied with; he is protected by the judgment. It is true, in Wister v. The City of Philadelphia, 5 Norris 215, we allowed the owner to defend against the city upon the ground of a non-compliance with the Acts of Assembly in regard to posting and advertising, but that was an entirely different question from the ease of a sheriff’s vendee who has paid his money upon the faith of a judicial sale; and the distinction was pointedly made in the case referred to.

Here the claim was filed against “unknown owner;” a scire facias issued, judgment thereon, and a sale of the premises by the sheriff to the plaintiff below. It appears by the special verdict, and the facts agreed upon, that George Emrick was in fact the owner of the lot and resided thereon, but had neglected to have his ownership registered .in the office of the city engineer as required by the Act of Assembly of 2d April 1869, Pamph. L. 644; that the plot furnished to the viewers to assess damages and returned with the report had no owner marked to the lot in question, but that the formal report of the viewers made the assessment against this lot in the name of George Emrick as owner.

We need not discuss the minor question of the irregularity of the proceedings in regard to posting and advertising. That is disposed of by Delaney v. Gault, supra. The point for our consideration is, whether, as against a purchaser at sheriff’s sale it may be shown that the name of the real owner was known to the municipal authorities, and ought to have been inserted in the lien; and that the omission to do so was such an irregularity as avoided the sale. We must be careful, in our desire to remedy a single case of apparent hardship, we do not unsettle titles in hundreds of similar cases. There have been many sales upon claims filed against unknown owners, the validity of which have never been questioned. Were we now to hold that an inquiry could be gone into to show that the name of the owner was or might have been known when the claim was filed, it is difficult to see why all titles heretofore made upon such claims may not be attacked. The Act of 1870 supra, was careful to avoid this difficulty, and provided by the 14th section, “ That a sale of any property by the sheriff, upon a writ of levari facias, upon any lien authorized by this act, whether the real owner is named or not, shall be deemed a proceeding in rem, and shall vest a good title in the purchaser to the property thus purchased.” And it was provided by the preceding section (13th) that, “ No mistake * * * in the name of an owner * * * shall vitiate the lien, &c.” The plaintiff must be presumed to have purchased at the sheriff’s sale upon the faith of this Act of Assembly. By its express terms any error or irregularity in regard to the name of the owner is cured by the sale. To hold otherwise would make the act a snare instead of a protection.

If there is any hardship in this case it is due to a considerable extent to the negligence of the owner. He appears to have made no attempt at any time to pay his assessment. It is possible he had no actual knowledge of it, but it is not probable. He knew of the opening of the street; is chargeable with knowledge that abutting and adjacent property was liable to assessment; the scire facias was posted upon his premises and duly advertised. And had he not neglected his duty to have his property registered as provided by the Act of April 2d 1869, it would not have been possible to sell it upon this claim, except in his own name as owner, and after recovery by such a service of the writ upon him as in case of a summons.

Judgment affirmed.

Justices Gordon and Trunkey, dissented.


text:
    Cummings versus Pittsburgh, Cincinnati and St. Louis Railway Company.
    1. A lad who was employed by a coal dealer was engaged in unloading ears standing upon a siding constructed by the dealer upon his own land. By reason of the neglect of the railroad employees to change the switch lead ing to the siding from the main track, several cars were propelled from the main track upon the siding and colliding with the cars on which the lad was employed, he received injuries from which he lost his leg. In a suit against the railroad company for damages. Held, that the- lad was employed on or about the company’s road within the vezy terms of the Act of April 4th 1868, and could, not recover.
    2. Mulherrin v. Delaware, Lackawanna and Western Railroad Co., 31 P. F. Smith, followed.

      November 7th 1879.
    Before Sharswood, C. J., Merour, Gordon, Paxson and Trunkey, JJ. Sterreti- and Green, JJ., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 328.
    Case by Daniel Cummings, by his father, John Cummings, against the Pittsburgh, Cincinnati & St. Louis Railway Company, to recover damages for an injury to said Daniel Cummings, whereby 'he lost his leg.
    The lad, who was about fourteen years of age, was caught and crushed between two coal cars in the coal yard of Morris McCue. At this same point there are several coal yards which are supplied with coal brought in cars on the defendant railway.
    The ground on that side of the railroad at this point is about eight to ten feet lower than the railroad. The coal cars are run into the coal yards upon switches and short tracks running out into the coal yards upon frame trestle-work, and the coal is unloaded by drops, in the bottom of the cars, which are unfastened and the coal dropped down through the trestle-work into the coal yard. There are between the points named two main tracks of the railroad; then alongside and east of these main tracts there is a side track, which side track is located, partly on the ground of the railroad and partly on the ground of the owners of the coal yard. This side track was put in by the railroad, but a part of the cost of the same was assessed upon the owner of each coal yard connected with it.
    From this side track there are switches and tracks running into each coal yard. These short tracks are upon the private property of the owners of the coal yards, and were constructed by themselves upon the trestle-work, as above stated. The owner of one of these coal yards is Morris McCue. He owns mines on the line of the railroad. His coal is loaded into cars of his own at the mines and then brought in by the defendant railroad company, on its road, by its locomotives and employees, to his coal yard in the city. When the train with the coal cars arrives it is changed, by a switch, from the main track to the side track, above mentioned; then it passes along the siding until near McOue’s siding, when that switch is also turned and the cars are run from the coal siding on McOue’s private track. The locomotive does not follow on this private track into the coal yard, but at this point it gives the cars a shove or a shot and drives them back on the coal switch by means of the force thus applied by means of the locomotive.
    Located adjoining and east of McCue’s coal yard is the coal yard of the National Coal Company.
    On the 4th day of June 1878, a locomotive in charge of the employees of defendant company, with a train of about twelve coal cars, came into the city over the railroad. Of the cars in this train six belonged to McCue and the balance to the National Coal Company, and were to be delivered upon tbe sidings or tracks in these two coal yards.
    The twelve coal cars were in front and pushed by the locomotive in the rear. The train switched off upon the side track, ran opposite to McCue’s yard, uncoupled the six cars of McCue, gave them a shove and sent them back upon McOue’s siding, in his coal yard, and then ran back towards Second avenue until clear of McOue’s siding, and stopped; then came ahead fast, intending to pass McCue’s coal yard and shove or shoot the other six cars upon the siding of the National Coal Company. When the locomotive and train drew back from McOue’s siding it was the duty of those in charge of the train to change the switch at McOue’s so as to direct and send the train, on its return, past McCue’s siding and upon the siding of the National Coal Company.
    But this was neglected: the switch was not. turned; and when the coal train returned it ran back again upon McOue’s switch and collided with the cars there previously left, and broke and wrecked several of said cars and threw them down on the trestle-work.
    The business of this boy, the plaintiff, was to mount the cars, after the drops in the bottom were opened, and push the coal in them to the opening in the centre. He and his employer, McCue, had just mounted the next to the rear car for this purpose, when the collision took place. McCue sprang down upon the coal below, but the boy was caught between the fragments or parts of the car, and fell, with the debris, down upo.n the coal below; his leg was crushed and was amputated shortly after. This action was brought for the injury thus sustained, and the cause of action against the defendant was the alleged carelessness and negligence of the defendant’s employees in again running their train back into McCue’s coal yard with great force and violence, and with neglecting to turn the switch and thus guide and direct the train to its proper destination on the tracks of the National Coal Company.
    The plaintiff having proved the above facts the defendant moved for a nonsuit for the following reasons:
    “ That taking all the evidence to be true as testified to on behalf of plaintiff’s witnesses it discloses nothing more than a case of an employee injured in and about the work of a railroad company. The evidence shows that at the time Daniel Cummings was injured he was in the service of the coal company. And by a contract and arrangement between McCue and the railroad company by which coal was to be delivered in the coal yard over sidings, which was upon the ground of McCue and others, connecting with the main track of the company. And under this contract or arrangement which was used in common as a place for the delivery of coal, was a ’coal depot connecting with the railroad, and as such under the Act of 1868, parties connected in and about the depots and tracks of the railroad company in a business of this kind cannot recover against the common employer.”
    The court sustained the motion for the nonsuit. A motion was subsequently made in the court in banc to take said nonsuit off, which was refused. The plaintiff then took this writ and assigned this action for error.

      Barton & Sons, for plaintiffs in error.
    In the court below the defendant relied on Kirby v. Railroad, 26 P. F. Smith 506. A very superficial examination of that case shows that it does not rule this one. Kirby, when injured, was on the cars of the railroad on the side track of the railroad, actually on the company’s ground. The coal railroad did not connect, but ran alongside above grade, and the coal was run down chutes from the cars of the coal company into the cars of the railroad. Kirby was loading coal into the railroad company’s cars. Cummings, the plaintiff, was on the cars of McCue. The cars were on the siding of McCue, and the siding was on his property at a time when all connection was or should have been cut off. The cars of the defendant and its employees had no authority to be there then more than merely to go past, and by their own negligence in not turning their switch, ran off their course, and into the private property of another.
    The Act of 1868 is a sufficient innovation upon the rights of the people without extending it any further than the words will bear. It is confined to those injured while employed in or about depots, or in or upon any car or train therein or thereon. That is upon a car or train of the railroad company on its railroad or in its depot. The boy was not employed in or about a railroad depot. He was simply unloading coal in the coal yard of a private citizen from a car that had passed all the perils of railroad and depots.

      Hampton & Balzell, for defendant in error.
    Counsel for plaintiff seek to distinguish Kirby’s case from this, by saying that there the cars were the railroad company’s, and the siding on the company’s ground, while in this the cars were McCue’s, and the switch on his ground. To maintain such distinction is to fritter away the statute. If the party is injured while lawfully employed about a railroad company’s road or works, it matters not on whose car he may be, or whether on any car, he is within the express letter of the statute. That construction which makes the defendant’s liability depend upon a difference of a few feet in distance, is wholly inconsistent with the plain intent of the statute, which was to put all persons subject to risk from railway operation on the same footing, whether they were in the actual employ of the company causing the injury or not. Hence the language used: “ On or about the roads, works, depots and premises.”
    But so far as the plaintiff's rights are concerned, he may be said to have been on the defendant’s road or premises. The company not only had a right, but it was its duty, to run cars over the McCue switch and into his yard. It was its switch for the purpose of moving trains over it to deliver coal.
    The argument of plaintiff is not new. It is the same that was made and disposed of in Mulherrin v. Del., L. & W. Railroad Co., 31 P. F. Smith 376.
   The judgment of the Supreme Court was entered November 17th 1879,

Per Curiam.

This case is not distinguishable from Mulherrin v. Delaware, Lackawanna and Western Railroad Co., 31 P. F. Smith 366. The side track here, though upon the property of the plaintiff’s employee, was nevertheless used by the defendant and by his license. The plaintiff below was therefore employed on or about the defendant’s road, and within the very terms of the Act of 1868.

Judgment affirmed.