text:
    Adams Express Company versus Schlessinger.
    1. Several trunks were transported by an express company and after re-/ retaining in their office for a considerable time an order of court under the Act of December 14th 1SG3 was obtained to sell them for freight, &e. Held, that this order did not protect the company for selling the trunks unopened and locked and without exposing the contents.
    2. The plaintiff testified as to the character and value of the contents of the trunk. Evidence that the plaintiff was a lady of wealth, &c., and that the goods described by her were such as are possessed by persons in similar circumstances in life, was admissible.
    3. An agreement by an agent of a corporation made in the course of the business intrusted to 'him is binding on the corporation although in excess of his instructions.
    4. Tanner v. Oil Creek Co., 3 P. F. Smith 411, recognised.
    February 9th 1874.
    Before Asnew, C. J., Mercur and Gordon, JJ. Siiarswood, J., ad Nisi Prius.
    Error to the District Court of Philadelphia: No. 27, to July Term 1872.
    This was an action on the case brought March 4th 1871, by Mary E. Schlessinger against The Adams Express Company.
    The first count charged that the plaintiff delivered to the defendants divers goods (which were described) of the value of $20,000, to be taken care of and safely kept and delivered to the plaintiff on demand; that the defendants did not take proper care of the goods, nor deliver them when demanded, but by their negligence the goods were lost; the second count charged that the defendants had the care of the goods and did not take due care of them; the third count was in trover.
    The plaintiff’s claim was, that having four trunks containing valuable articles of clothing, silverware, books, &c., in New York, she employed the defendants to have them brought for her to Philadelphia; that after their arrival at Philadelphia, she called at the office of the company, and not being ready then to remove them, the agents of the company then told her they might remain there for a year.
    In less than a year the plaintiffs, by virtue of an order of the Court of Common Pleas, under the Act of December 14th 1863, Pamph. L. 1127, 1 Br. Purd. 220, pi. 6, et seq., sold the trunks unopened and she thereby lost the goods.
    The act provides:—
    “ Sect. 1. In all cases in which commission merchants, factois and all common carriers, or other persons, shall have a lien, under existing laws, upon any goods, wares, merchandise or other property, for or on account of the costs or expenses of carriage, storage or labor bestowed on such goods, wares, merchandise or other property, if the owner or consignee of the same shall fail or neglect or refuse to pay the amount of charges upon any such property, goods, wares or merchandise, within sixty days after demand thereof made personally upon such owner or consignee, then and in such case it shall and may be lawful for any such commission merchant, factor, common carrier or other person having such lien, as aforesaid, after the expiration of said period of sixty days, to expose such goods, wares, merchandise or other property to sale at public auction, and to sell the same, or so much thereof as shall be sufficient to discharge said lien, together with costs of sale and advertising: Provided, That notice of such sale, together with the name of the person or persons to whom such goods shall have been consigned, shall have been first published for three successive weeks in a newspaper published in the county, and by six written or printed handbills, put up in the most public and conspicuous places in the vicinity of the depot where the said goods may be.
    “ Sect. 2. Upon the application of any of the persons or corporations having a lien upon goods, wares, merchandise or other property, as mentioned in the first section of this act, verified by affidavit, to any of the judges of the Courts of Common Pleas of this Commonwealth, setting forth that the places of residence of the owner and consignee of any such goods, wares, merchandise or other property are unknown, or that such goods, wares, merchandise or other property are of such perishable nature or so damaged, or showing any other cause that shall render it impracticable to give the notice as provided for in the first section of this act, then and in such case it shall and may be lawful for a judge of the city or county in which the goods may be, to make an order, to be by him signed, authorizing the sale of such goods, wares, merchandise or other property, upon such terms as to notice as the nature of the case may admit of, and to such judge shall seem meet: Provided, That in cases of perishable property, the affidavit and proceedings required by this section may be had before a justice of the peace.

      “ Sect. 3. The residue of moneys arising from any such sales, either under the first or second sections of this act, after deducting the amount of the lien as aforesaid, together with costs of advertising and sales, shall be held subject to the order of the owner or owners of such property.”
    The case was tried, February 24th 1874, before Thayer, J.
    The plaintiff testified:—
    “ I don’t remember the dates exactly. I called at Adams Express Office and asked the party behind the counter where I could have trunks brought from New York. • He directed a colored man to take me up to the counter. I told the clerk I wanted to have my trunks brought from New York. * * * I showed him a letter from Mrs. Lamporte, requesting me to have the trunks taken away. They told me the trunks would be in Philadelphia within a few days. I don’t remember how many days. At the end of the time I called and saw my trunks. The clerk pointed them out to me. I asked him then whether I should pay the freight, which was eight dollars. I handed him (Granger) a ten-dollar note, and he said I should pay for them when I took them away. Then I asked him if he would keep them for me on storage, and what it would cost. He said that they were not allowed to take storage but that they would keep my trunks. I asked him how long. He said ‘ one year, no longer.’ At the end of something like two months, I called there with my son, and he went down stairs. They took him down in the basement, He took a book out of one of the trunks, and came up-stairs with the book with him, and told me to ask the gentleman again in his presence, which I did; and he (Granger) made exactly the same answer — that was, that he would charge no storage if I could pay them for the transportation when I took them away, and that they would be kept one year. He said, ‘ we are not allowed to take storage; we will keep them for nothing and for one year.’ I never went there again until the month of February. Then I came to Adams Express to get my trunks to put them at Mr. Ohl’s; then they told me my trunks were sold. That was the last week in April 1870 I got the letter.” *****
    The plaintiff was then asked, “ What did your four trunks contain ?” This was objected to by the defendants; and being examined by the defendants she said: that she had packed them in January and ordered them to Philadelphia in April and they had been in her house in the intermediate time; she saw the trunks in February ; she knew what was in them when she left New York ; they had good locks and ¿keys; she had not seen them again until after she received the letter of April 1870 and then they were in the same condition as when she left them at New York, without any appearance of having been broken open: in New York they had been in charge of Mrs. Lamporte.
    The witness then testified in chief, very much at large, what were the contents of the trunks and the value of the individual articles enumerated by her.
    The defendant renewed the objection to the plaintiff’s testimony, “ upon the ground that the witness’s knowledge of the delivery of these trunks to the carrier is not sufficient evidence of the delivery of these' articles which she has enumerated in her testimony, inasmuch as she did not know what those contents were when they were delivered to the carrier ;' also on the ground of the looseness of the plaintiff’s testimony in respect to these articles being in the trunks at the time of the delivery to the carrier.”
    The objection was overruled by the court, and a bill of exceptions was sealed.
    She testified also that'she called afterwards for the goods, and was told that they had been sold for the freight.
    The plaintiff gave evidence by her son, that on the 3d of July 1870, he went with his mother to the Adams Express Company’s office and got a book from one of the trunks and at that time one of the agents told her in answer to a direct question that they would keep the trunks for a year; that he made a list of their contents in April or March 1871; but had made no list at the time he helped to pack them. He testified also from the list which he had made what were the contents and their value.
    The plaintiff proposed to prove by Judge Pierce that she had been a lady of wealth, and in good circumstances, and that the goods contained in the trunks were such as are possessed by people in similar circumstances in life.
    The offer was objected to by the defendants, admitted by the court and a bill of exceptions sealed.
    The witness testified that the plaintiff had a considerable estate, which was held in trust forffier: that she was “ of fine social position.”
    There was much other evidence on behalf of the plaintiff.
    The defendants called Arthur Granger, who testified that he was a clerk in defendants’ office, having charge of unclaimed packages and undelivered freight; that plaintiff came to the office in April 1870, saying she expected some trunks from New York; the trunks not having then arrived, she came again on the 28th of that month ; the trunks had come 'and were on the platform; she said she had not room to take them then and would call in two or three weeks to say where they should be delivered: she called the third time with her son about a month after the trunks had arrived, to get something out of one of the.trunks; she said she had not been able to take the trunks away but hoped to get a house in a short time and would then let me know when they should be delivered.
    She never asked witness how long they would keep these goods in the store; he never said they would keep them a year or for any less time, witness had no authority to make such promise, his instructions were when such question was asked to say the goods could stay on storage for 90 days, and after that they would he sold for freight; this was on defendants’ printed notices ; witness did not promise the plaintiff to keep the goods longer than that time, if he had done so it would have been outside of his authority. The trunks were in the store of the defendants eight months, kept safely with other boxes, packages, &c. Plaintiff at no time disclosed to the defendants the value of the contents of the trunks or they would not have permitted them to remain in the store.
    The witness gave much more testimony in direct contradiction of most of the plaintiff’s statements.
    The defendants gave in evidence their petition to .the Court of Common Pleas for an order under the Act of December 14th 1863, to sell a number of different packages of goods, including the plaintiff’s four trunks, describing them by their marks; also the order of the court dated November 19th 1870, to sell the packages at auction after three weeks’ notice in a newspaper, &c.
    H. Gorman, an agent of the defendants, testified that neither Granger nor any other clerk had authority to agree to keep the goods for a year; nor for longer than from 60 to 90 days; he testified also to the advertisements and putting up the handbills; the witness superintended the sale of the goods.
    There was other evidence in corroboration of the above witnesses and in support generally of defendants’ case.
    The evidence was that the trunks were sold December 29th and 30th 1870; sale was of each of the trunks separately without being opened or information what were the contents: The product of the sale being $32.50.
    ■The defendants’ points with answers were:—
    I. That if defendants are liable, they are liable only as gratuitous bailees, without hire, and plaintiff must prove neglect and want of ordinary care, in order to establish liability.
    The judge’s answer — Yes. “ If they offer to deliver the property and were to keep it without compensation, the plaintiff must show either neglect or misconduct.”
    2. That there is no evidence of neglect or want of ordinary care.
    3. That if the evidence shows that Mr. Granger had no authority to contract or promise to keep the trunks for one year, then such promise would not bind the defendants.
    These points .were refused.
    4. That having a lien on the trunks for freight, and not knowing the plaintiff’s residence or address, defendants had the right to obtain an order of court for the sale of these trunks ; that such order was made, and if complied with, then the defendants are not liable in this action for any amount whatever.
    5. That the evidence given by the plaintiff and her son of the contents of these trunks in January 1870, is not evidence of their contents at the time they came into defendant’s possession in the month of April following, neither plaintiff nor her son having had knowledge of or access to them in the interval, and no one having been examined to show who had the care or custody of them in the interval.
    Answer: ‘ Refused — but I left it to the jury to say whether such evidence was satisfactory, and told them that it should be received with caution, and vei-y carefully weighed and examined.”
    6. That there is no evidence of the contents or value of these trunks except the son’s testimony as to the contents of one trunk at the time he opened it in the basement of the defendants’ office, and the testimony of Gorman and Hicks, and the jury must confine themselves to their description of contents and value at the time they examined them.
    Answer — “ Refused.”
    In his charge, Judge Thayer, after referring to the evidence and its conflicting character, said: * * *
    “ It is further answered to the statements of the plaintiff, that the clerk had no authority to make any such arrangement, that if he did do it, it was beyond his power to bind the company in any such arrangement — that it was altogether beyond the range of his authority, inasmuch as it was in contradiction of the well established regulations of the company. With regard to this last point, I am bound to say, that although there may have been a lack of authority given to the clerk to enter into any such engagement, yet if, £e being an agent of the company, intrusted with the control and management of that department of the business, did in truth and in fact, when applied to for information in regard to it by Mrs. Schlessinger, make the answer which is imputed to him, then the company is bound By it. It is impossible that the public should know all the private regulations of a company engaged in such a business as this. The public have a right to suppose that the agents and officers of such a company are authorized to answer for the company in regard to all matters which are within the scope of the particular duty confided to them. The public have a right to regard the answer of the agent as the answer of the company, if it be an answer connected with the duty which'is intrusted to the agent by the company.
    “ Therefore, if you believe in point of fact that Mr. Granger, or anybody else who had competent authority from the company to attend to this department of the business, did make this answer, then the company are bound by it, although he might in doing that, have exceeded the regulations or instructions of the company on that subject. The important inquiry, perhaps, is whether in point of fact he did enter into such an engagement upon the part of the company, as is alleged. If he did, then the company are bound by it. If he did enter into such an engagement, namely to keep this baggage for a year, then it follows as a necessary consequence that the defendants had no right to sell the trunks within a year, in order to enforce the payment of their lien for freight — at any rate, without demanding the freight. * * * Supposing, however, that no engagement was made by him on behalf of the company to keep the goods for a year, what is then the relative situation of the parties under that aspect of the case? If it is true, as Mr. Granger has testified, that the plaintiff agreed to come very shortly and give such information to the company as would enable them to send these trunks to her, then it was plainly her duty to have complied with that promise. If she entered into that engagement, she ought to have come within a reasonable time and have taken the trunks away, or given information which would have enabled the company to have delivered the trunks to her; and if she neglected to do that, and left them in the hands of the company against their consent, then the trunks would be there at the risk of the plaintiff so far as all the ordinary accidents and chances to which they were exposed are concerned. . But nevertheless the defendants were bound to take ordinary care of the property while it actually remained in their possession. In other words, the neglect of the plaintiff to take away the trunks, if she promised to do so, would not justify the defendants in making, an improper or illegal disposition of the property, subsequently, if any such disposition was made; nor does it relieve them from that ordinary care which they are bound to take of all property, left in their charge under such circumstances. I do not know that the question of ordinary diligence can arise in any aspect of this case, except one, and perhaps the evidence upon that point is hardly of sufficient magnitude or weight to .raise the question. I shall leave it to you to say whether it does or not. * * * * * * If the trunks have been opened by anybody, or the things have been abstracted while in the custody of the defendants, and if that occurred by the negligence or want of ordinary care of the defendants, then they are responsible. They are responsible for the use of ordinary care in the taking care of the property while it remained in their custody, even though they should be during that period merely voluntary bailees of the goods.
    “ But the question appears to me to be rather whether the company were guilty of any improper conduct in the subsequent treatment of these goods, and whether they appropriated these goods in any unlawful manner or not. That seems to me to be the real question in this case rather than any question of negligence, because we can hardly describe that as negligence, perhaps, which is due to the direct and avowed act of the party himself in the exercise of what he claims to have been a legal right. These goods remained in the possession of defendants until December 1870. * * * They were then sent to auction and sold on the SOth'of December 1870, and this is alleged was done in pursuance of an order of the’ Court of Common Pleas,' which, as the defendants say, protects them in having made that sale. They say that, having disposed of the property in a manner provided by law, and under the sanction of an express order of a' court of competent jurisdiction, that they are absolutely exempt from responsibility for making that sale.
    “Whether they are exempt or not depends upon certain facts in the cause. In the first place, they are not protected by that order if their agent agreed to keep the goods for a year; if that year had not elapsed. In that case they had no right to apply for the order, being bound by the special agreement. If they entered into any such agreement as that which the plaintiff has described, they had no right to make the application to the Court of Common Pleas for the order of sale; and in that case the order would not exempt them from the responsibility for selling the goods. Suppose that their version of the affair is the true one, and that they only suffered the goods to remain temporarily in the premises until the plaintiff should send for them after a brief lapse of time. Then, if the defendants were in no default in that respect, and if Mrs. Schlessinger was in default in not keeping her promise to send for them within a brief period, they had a right to make the application to the court under the Act of 1868, which they did make for the order of the sale of these goods, because they were not bound to keep them for ever after the plaintiff had promised to come for them within a very short time, or to send for them, or to give the defendants information where they could send them. They were not bound to continue to be her bailees for these goods against their own consent; and if she did not comply with her promise they had a right, after the lapse of a reasonable length of time (and I think until the month of December would have been a reasonable length of time, for the goods came in April), to give her notice, and make the application, if they did not know her residence, which they did make to the Court of Common Pleas ■for the order of sale. If they made that application under such circumstances in good faith, and proceeded to execute the order in good faith, then they would be exempt from responsibility arising from the sale of the property. But a question arises here as to whether they did execute the order, the protection of which they claim. The order of the court, made under the Act of 1863, was made for the purpose of enabling commission merchants, carriers, factors and others to enforee their liens against property in their possession by ordering the sale of the property. The order of the court under the application made in pursuance of the act, was for the sale of the said goods, wares and merchandise. Was that order executed by the sale which was made of this property in the manner in which it was made? Had the defendant any right, under an order, to sell trunks locked up without stating whether they had anything in them ? — in a lump,' without exhibiting them and without any notice of any kind as to the contents of the trunks, so that no one knew whether they contained stones or ingots of gold, valuable or worthless things ? Had they any right to execute this order of sale in such a manner as that ? In regard to that I am bound to instruct you most emphatically: they had no such right. It was not a proper execution of the order made by the Court of Common Pleas. * * * The defendants were bound to act in good-faith, to have exposed these goods for sale at a public auction after the manner in which goods are usually sold. * * * Therefore I feel bound to instruct you that the' defendants did not fulfil this order of the Court of Common Pleas in a proper manner, and that the sale in the manner in which they acted was an improper appropriation of the goods, and was in point of law a wrongful conversion of the goods. * * * If then this sale was conducted in that manner, it was an unlawful sale. It was not such a sale as was ordered by the court and the defendants cannot claim the protection of the order of the court unless they have complied with its terms.
    “ All that remains for me to say is something with regard to the value of these goods. * * It would be very dangerous indeed for a jury without a knowledge of the actual contents of these trunks to undertake to guess at what might be contained in them, or to undertake to give any large amount representing the value of things which might be contained in these four trunks. The jury in this matter should proceed with as much care and exactness as the evidence will permit. They should bear in mind in considering the evidence of the plaintiff, the natural bias which possibly may have influenced her from her interest in the result of this case — a bias of which she may be unconscious, and which may to a certain extent have affected her testimony, although she may have desired to state nothing but what she believed to be absolutely and strictly true. It is very important to remember the position of the plaintiff and her son, upon whose testimony, so far as the plaintiff’s case is concerned, the question of value is to be determined. You are to bear in mind, constantly, their relation to the case and to make such allowance for it as you see proper. Of course no more. It is the plaintiff’s duty to satisfy you upon that point. The value of these things is not to be affected by any considerations which are merely personal to the plaintiff herself. The value of this property is not to be affixed by any mere fancies or by any sentiments, however honorable, natural and proper those sentiments may be. An heir-loom in a family, the picture of an ancestor, or a memorial of a friend, may be of inestimable personal value to the owner. There may be sentiments connected with them, which it is impossible to measure by any pecuniary standard. It is not by such considerations that you are to arrive at the value of the plaintiff’s property, for the law does not recognise any such difficult and impossible standard as a measure of value. It adopts a more practical method of ascertaining the value — a method which can he applied practically to the relations of human life, which is susceptible of some degree of certainty and which in its application will do justice between man and man. Therefore in determining the value of these things you are not to be affected in' your estimates by any such ideas as these to which I have referred. You are to set the market value upon each of these articles if you should find for the plaintiff, and you are to determine what each of them is worth pecuniarily — what they would bring if sold at a public sale. * * *
    “There is perhaps no discrepancy between the general character and the description of the articles, as testified to by the plaintiff and the defendants’ witnesses, though, there is á very wide discrepancy in regard to the testimony as to their value and their general condition and quality. I shall leave that question to you entirely, with the remark that it is necessary to be cautious, of course, in estimating the value of such property. I am sure you will look at the subject as men of business and common sense, and if there should be a verdict for the plaintiff, you will affix such a value to these articles as you think they would have brought at a public sale. You are not, if there should be a verdict for1 the plaintiff, to inflame the damages by affixing any fanciful values, but you should, in doing justice between the parties, affix such a value as you think the articles really and intrinsically possess— such a value as would be represented by the prices they would bring if they had been sold.” * * *
    The verdict was for the plaintiff for $6000.
    The defendants took a writ of error, and assigned for error the rulings on the questions of evidence, — the answers to the points, and, in several specifications, the charge of the court.

      D. Webster and T. Cuyler, for plaintiffs in error.
    Granger, the agent of the company, was not acting within the scope of his* authority: Story on Agency, sects. 126-132, 302-307, 73 ; Paley on Agency, 198, 199; Howard v. Brattewaite, 1 Ves. & B. 209; Whitehead v. Tuckett, 15 East. 400; Rosseter v. Rosseter, 8 Wend. 494; Beals v. Allen, 18 Johns. 367 ; Allen v. Ogden, 1 W. C. C. R. 174; Smith’s Mercantile Law, 59 ; Jordon v. Norton, 4 Mees. & Wels. 155; Condit v. Baldwin, 7 Smith (N. Y.) 219; Story on Eq. Juris., sects. 344-394; Williams v. Getty, 7 Casey 461; Saving Fund Society v. Saving Bank, 12 Id. 503; Moore v. Patterson, 4 Id. 505; Wilson v. Wilson, 2 Id. 393; Stevenson v. Hoy, 7 Wright 191.

      M. H. Todd and W. L. Hirst, for defendant in error,
    cited Tanner v. Oil Creek R. R. Co., 3 P. F. Smith 411.
   The opinion of the court was delivered, May 11th 1874, by

Mercur, J.

The argument in this case has taken a wide range. The great antiquity of some of the property, as well as the diversified character and alleged yalue of many of the articles, have given ample grounds for discussion.

The legal questions to be determined are few. The jury passed upon the value of the property, under a careful and restraining charge of the court. They were properly instructed as to the discharge of their duties; under the conflicting evidence, the measure of damages was properly submitted to them. We discover no error in the admission of the evidence; it bore directly upon the value of the articles, and the probability of their being in the trunks at the time of the sale by the plaintiff in error.

Much of the argument relating to the question of negligence does not bear very directly upon the controlling questions in the case. The right to recover does not rest upon the careless and negligent manner in which the property was kept, but on the unlawful and irregular manner in which it was sold. Hence the omission of the defendant in error to inform the company in regard to the value of the property, worked no injury to the latter. The company did keep it carefully and securely against all injury and loss.

The count in trover strikes at the invalidity of the sale, at the time when, and the manner and circumstances under which, it was made.

The court was entirely correct in holding the company responsible for the agreement of its agent to keep the goods for one year. The act was within the general scope of the agent’s authority. It was a representation made in the course of the business intrusted to his particular care. Corporations act through agents. The public is not informed as to the specific and private instructions which may be given to them, limiting their ostensible powers. A just protection to persons dealing with corporations imperatively requires that the act of the agent, within the general scope of the business with which he is intrusted, shall bind the company, although the specific act may be in excess of his private instructions : Tanner v. Oil Creek R. R. Co., 3 P. F. Smith 411. If the testimony of the defendant in error was believed, the right of sale did not exist at that time.

The first and second sections of the Act of 14th December 1863, Pur. Dig. 220, pi. 6 and 7, under which the plaintiff in error proposed to sell the property, authorized the company to “expose” it to sale at public auction. The fair meaning of “ expose” in this statute obviously is “ to exhibit,” “ to bring into view,” “ display,” to “ point out or show to the bystanders.” Selling the trunks with the goods locked up in them, and describing the contents as unknown, withholds from the bidders all knowledge of the character or value of the contents, and clearly was not within the meaning of the law which directs the manner of sale. This' manner of selling goods of value is unjust to the owner. It is no answer for a corporation to say that by this method its sales in the aggregate produce quite as large a sum as if the articles were exposed to view. The company may not suffer, yet great injustice be done to the owner of valuable goods. There is no just reason why his goods should be sold at a sacrifice to enable the almost worthless property of another to be sold for more than its value. Such a mode of selling is unjust to the bidders; generally they will not stand upon equal ground. The strong probability is that the contents will be known to one or more of the agents, and all packages that are really valuable will' be struck down at low prices to some one acting in the interest of the knowing agent. In this very case the evidence shows that the contents of the trunks were actually examined by one of the agents of the company before the sale, yet each was sold as contents unknown, for a few dollars. To whom they were sold, or what became of the contents, the evidence fails to disclose.

In the whole record we discover nothing which requires our correction; therefore, Judgment affirmed.


source: Caselaw Access Project

author: Agnew, C. J.

license: Public Domain

text:
    Philadelphia & Reading Railroad Company versus Long and Wife.
    1. Railroad trains may be run at a high rate of speed to reach their greatest utility; but in populous towns and cities the speed must be moderated.
    2. If parents permit a child of tender years to wander on a street it is negligence.
    3. In this case a child of tender years whilst on a railroad track in a street in a city was killed by a train ; — under the evidence it was for the jury to say whether the train was running too fast, or there was negligence otherwise ; and whether the child was in the street through the negligence of the parents.
    4. Kay v. Penna. R. R. Co., 15 P. F. Smith 276, followed.
    February 9th 1874.
    Before Agnew, C. J., Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 24, to July Term 1872.
    This was an action on the case brought August 31st 1871, by Jacob V. Long and Mary his wife against The Philadelphia and Reading Railroad Company. The cause of action was the alleged negligence of defendants’ servants, which resulted in the death of Rosanna Long, a child of the plaintiffs, who was run over by one of the defendants’ engines.
    The defendants’ road from Norristown to Philadelphia passes along Cresson street in Manayunk; the depot in Manayunk is at the intersection of Cresson street by Gay street; Cotton street crosses the railroad on Cresson street, and is 744 feet from Gay street in the direction of Philadelphia; between Gay and Cotton streets Levering and Grape streets cross the railroad, Grape street being nearest to Cotton street; from the station at Gay street toward Cotton street there is an up-grade of 32 feet to the mile, which is a “ stiff” grade for starting; the track is perfectly straight from the Gay street station to Cotton street. On the 10th of May 1871, the train from Norristown to Philadelphia, after leaving the Gay street depot, near Cotton street crossing, ran over the plaintiff’s child, who was about 25 months old; the train, including cárs, engine, &c., was 325 feet long; Cresson street is about 50 feet wide; the two tracks of the railroad are in its centre, and are together 16 feet wide. Each side of the street is built up with houses, and many people pass along the street going from Cotton street to the depot. The elevation of the railroad track is higher than the street curb, sloping to the curb on each side, and the road-bed is considerably higher than the sidewalks.
    Mary A. Long, plaintiff, testified : “ I live in Cresson street, between Cotton and Grape; when I saw the child she came and asked me for a piece of bread, and by that I went to do my housework and she went out, and the first thing I knew, she was run over; she was not more than a few minutes out of my sight,— about three or four minutes; * * * I did not notice the train pass; we live on the line of the railroad; * * * when I last saw my little girl I gave her a piece of bread and left her in the kitchen; she must have opened the back door and got out through the alley; my mother was in the house with me ; I did not notice her go out; I left her in the kitchen ; I went to scrub a piece of oil-cloth in the next room; * * * I was in the middle room; you could see from one to the other; I had not noticed her go out; I was by the hearth ; she got into the alley ; the side door goes right out into the alley; it was latched, but she opened it; she was in the kitchen-; I did not miss her at all; I did not know at that time whether she was in the kitchen or out in the street; she had been in the yard playing when she came in and asked me for a piece of bread.”
    Jacob Peterman testified: “ I was on the train which ran over the child; was on hind car on the hind platform of whole train; when I had got on it was going six or seven miles an hour; I am satisfied if I had been off I could not have got on; I heard the whistle blow ‘ down brakes ’ when the hind part of the train was crossing Grape street; at that time the front part of the train was about Cotton street; the hind car of the train was about half way across Cotton street when the train stopped; the train went a whole square; saw the child after the car passed over her ; it laid between the up and down tracks.” * * *
    Samuel A. Moore testified: “ The little child was in the middle of the crossing when I first saw her ; I saw the train coming; saw the locomotive strike her; I was coming from work; was coming out of an alley below Cresson street, running from Mechanic to Cotton streets; I stepped out of this alley into Cotton street below the railroad, and saw the child and the locomotive; the child had a piece of bread ; I heard the whistle while I was five yards in the alley, before I saw the child; she was walking when I first saw her; when I got to the opening of the alley the train was on her; saw the train when it stopped ; was about ten or fifteen feet below Cotton street; the hind end ; it was going pretty fast when I saw it; first heard the whistle before I got out of the alley into Cotton street; when I got out, I saw the child between the two tracks in the centre of Cotton street; don’t think she sat down ; it appeared as if she sat down; when I first saw her she was between the two tracks — the up and down tracks — and walking towards me; I then just saw the end of the locomotive; when I got eyes on the child, saw her walk on towards the other track; I just saw the cowcatcher then ; the child walked right towards the locomotive ; I thought she would sit down when the cow-catcher struck her; don’t say she sat down; she could walk, kind of ‘ trottling ’ along, when she was struck.” * * *
    John Nicholls testified: “I live in Cresson street, two doors above Cotton, other side from Mr. Long; was in the house at the time of the accident; three minutes before was at the corner; did not see the child when it was at the corner of Cotton and Cresson streets; saw nothing about the accident; heard whistle after the train passed; saw train from my window; I ran out and had the baby picked up; heard the whistle blow after the train passed the window; saw the cars pass, — going about eight miles an hour; Cresson street is always pretty well crowded — great many people walking and crossing it.” * * *
    Benjamin Levering testified: “ I was in the neighborhood, and had just passed the railroad track when I saw two children together on the upper side of the railroad; they were on the side of Mr. Long’s house; I crossed at Cotton street; saw the engine coming; saw it when it left the depot; the child was then on the upper side; I crossed and went up Cresson street when the train passed, and just as I turned round the child went on the track and the cow-catcher struck her; saw the train pass; saw the child struck ; the train was going over eight miles an hour; I can tell, for I have lived there all my life; the whistle blowed a few yards before it struck the child; could not say how many ; I was two or three doors above Cotton street.” * * *
    There was other evidence as to the circumstances of the accident, the speed at which the train was running, &c.
    For the defendants, F. IT. Wilson, superintendent of the railroad, testified, that a train starting from the depot under eighty pounds of steam could not attain a speed of eight miles an hour by the time it would reach Cotton street. “ Six miles an hour was the speed to which trains were restricted in going through Manayunk ; that is the speed now; there has been no change in this since we have had the road; trains ring the bolls continually from the time they enter Manayunk until they leave it; that is the mode of warning used; the whistle is used only for the purpose of stopping the train, in event of accident.” * * *
    Daniel Miller, the engineer, testified: * * * “ When I left Manayunk station had eighty pounds of steam, that is thirty pounds less than usual; I was on the right-hand side looking ahead ; I saw nothing at all; the fireman was ringing the bell; he hallooed me to stop ; he was ringing the bell as soon as the engine started ; I could not tell exactly where we were when the fireman hallooed me to stop; I had not seen anything on the track up to this time ; we were close to Cotton street; I whistled ‘ down brakes,’ reversed engine, and stopped as soon as I could; we went to the next crossing at Mechanic street; one square ; stopped within the length of the train ; I suppose the train was going five to six miles an hour; * * * can’t see from my side anything right in front of the engine, or on the other side, on account of the boiler; there is nothing to prevent me seeing whole track some distance in front of the engine; I was looking out at the time ; did not see the child; if the child had been on the track while we were at Grape street, could have seen the child from the side where I was; I could not see right in front of the locomotive, but can see five or six feet in front of it; if the child was standing on the other track, it would be about a half square before she would be shut out of view; the boiler would have shut her out; it is my duty to keep an eye on the track ; the fireman rings the bell and tends the fire, the engineer minds the track; he has nothing else to do; I did so on that day, from time we left the depot until the accident. The shortest distance ahead of the engine one could see a person, if on the other track, would be about one-half square — that is, one half way between Grape and Cotton streets; if a person was on the fireman’s side of the engine on our track, would be shut out within twenty or thirty feet from the engine ; I noticed the steam before I left station; we look at it there, because if the steam gets low we can’t get it up ; looked at it there, and saw it was eighty pounds ; we usually get one hundred and ten pounds there before we leave, if we have time to get it.”
    William Grady, the fireman, testified as the engineer as to the amount of steam, the rate of speed, &c. He also testified: “ As soon as we left the station I commenced to pull the bell; was ringing it all the way from the station ; kept ringing it all the way through Manayunk; we ring the bell always; when anybody is ahead on the track we whistle ; * * * when I first saw the child she was stepping on the track — on the left-hand or inside rail of our track — some five or six feet in front of the engine, as near as I could judge ; I turned to tell the engineer as soon as I saw it; he did not hear me at first; told him second time; he didn’t hear at first on account of the noise of the bell; as soon as he understood me he whistled and stopped ; we stopped on the next crossing, about two hundred feet off; it was impossible to have stopped sooner; when I saw the child step on the track it was impossible to have stopped the train; was engaged in ringing the bell all the way down and looking at the steam-gauge; I just happened to look out, and saw the child, for the first time, just as it was stepping in front of the track ; the engineer was looking out when I turned to tell him. ” * * *
    The conductor testified that he supposed the rate of speed was about five miles an hour.
    The defendants’ points, all of which were affirmed, were :—
    1. The mere fact of the child having been killed on the defendants’ railroad raises no presumption that her death was caused by negligence on the part of the defendants.
    2. The verdict must be for the defendants, unless the evidence clearly establishes that the death of the child was caused by want of ordinary care on the part of the agents of the defendants, in the management of the train, and that the parents of the child took all proper precautions for her safety.
    3. The men in charge of the train were not bound to anticipate that any person, either infant or adult, would cross the track immediately in front of the engine, and that the defendants are not responsible for an omission to provide against such a contingency.
    4. When an infant, less than two years and two months old, is suffered to wander on a railroad track, where trains are constantly passing, the parents of such an infant are guilty of negligence, which precludes their recovering damages for the death of the child by being accidentally run over by a passing train.
    5. Should the jury find for the plaintiffs, damages can be assessed only for the pecuniary loss which the evidence shows they have actually sustained, and that neither the bodily sufferings of the child nor the mental sufferings of the parents can be taken into consideration.
    The court further charged:—

      “ Upon these general principles you will consider the facts of the case. The foundation of this action is the negligence of the defendants. Without this no recovery could be had, even if this was a suit by the child for injury to it. [It is for you to say whether the defendants used such reasonable care and diligence as were required at that time and place.] Negligence is not to be presumed; it is for the plaintiffs to show it. On that subject you have some evidence in relation to the speed of the train; the discrepancy between the witnesses is not very great, it all runs from five to eight miles; Levering said it was about eight miles; the others between five and six miles; it is manifest the rate was between five and eight miles ; [it is for you to say whether that rate of speed was excessive, and whether, if excessive, it contributed to the accident;] if the rate of speed did not contribute to the accident, it was nor negligence.

      “ There were only two witnesses who saw the accident, Samuel Moore and Benjamin Levering. You will give particular attention to these two witnesses. * * * [Upon this testimony you will consider whether the negligence of the defendants caused the injury, or whether it was one of those unfortunate accidents which could not be prevented.] If the child was playing near the track, and from fright', or even from heedlessness, or any other motive, suddenly darted in front of the train, the defendants could not be required to foresee and provide against such a contingency. That is one of those misfortunes for which there is no remedy.
    “ The second inquiry to which you will direct your attention is, did the parents take such care of the child as the circumstances required ? The child appears to have been able to lift the latch of the door and go out; the law upon this point has been very strictly laid down, [and the fact that the child is found in the street affords a strong presumption of negligence on the part of the plaintiffs. You will therefore consider whether the mother took reasonable care of the child; if she did not it was negligence], and if you find the parents to have been negligent you must find for the defendants. That is a good defence to this action.”
    The verdict was for the plaintiffs for $1200. Upon the removal of the record to the Supreme Court by the defendants, they assigned for error the portions of the charge in brackets.

      T. Part, Jr., and J. E. Gowen, for plaintiffs in error.—
    Generally what is and what is not negligence is a question for the jury; but if there be no evidence of negligence, or any facts or circumstances from which negligence could be fairly inferred, the court ought not to submit the question to their determination: Pennsylvania Railroad Company v. Barnett, 9 P. F. Smith 259. Conceding the bare assertion that the train was going at the rate of eight miles an hour at the time of the accident, such fact alone cannot justify an inference of negligence. It is the duty of those in charge of a train, when approaching a public crossing, to give notice by blowing the whistle, ringing the bell, or such other device as may be sufficient to warn travellers of their approach, a sufficient distance from the crossing to afford time for all approaching to stop in a place of safety, or, if on the track, to get out of danger. It is also their duty to look along the track, and if they see or might, by the use of due care or caution, see any obstruction on the track, to check the train by using every means in their power to prevent a collision: Pittsburg, F. W. & Ch. Railway v. Dunn, 6 P. F. Smith 280. A railroad train, approaching a public crossing with sufficient notice of its approach is not bound so to reduce its rate of speed that, if the warning be disregarded and a traveller cross in front of the train upon the highway, the engine can be checked in time to avoid collision ; the train hands are entitled to presume that no one, either infant or adult, will cross in the face of the train, and to maintain the usual rate of speed of the cars: Telfer v. the Northern Railroad Company, 30 New Jersey Law Reports (1 Vroom), 188; Shearman and Redfield on Negligence, sect. 478 ; Wilds v. Hudson R. Railroad, 29 New York 315.
    Where one steps suddenly in front of a moving train, so near that no signal could save him, the railroad company is not negligent in not having given a signal: Hartley v. Central Railroad Company, 42 New York (3 Hand) 468. If there be no negligence, the incapacity of the child creates no liability on the company : Kay v. Penna. R. R., 15 P. F. Smith 269; Flowers v. Penna. R. R. 19 Id. 210. They cited on the question of the parents’ neglect: Glassey v. Pass. Railway, 7 P. F. Smith 172.

      J. Dolman, for defendants in error.
    A jury alone can determine what is_negligence, and whether it has been proved: McCully v. Clark, 4 Wright 406; Telfer v. R. R. Co., 30 N. J. 192. That which in one case would be an ordinary and proper use of one’s rights, may by a change of circumstances become negligence and want of due care: Kay v. R. R. Co., 15 P. F. Smith 269. As to the parents’ negligence, he cited O’Flaherty v. Railroad Co., 3 Am. L. Times 42; Pittsburg, All. & M. Pass. Railway v. Pearson, 22 P. F. Smith 169.
   The opinion of the court was delivered, February 24th 1874, by

Agnew, C. J.

This case has been argued by the eminent counsel of the railroad company as if the facts were fixed with the certainty of a special verdict. If we assume that the child, Rosanna Long, suddenly appeared upon the track, five or six feet ahead of the locomotive on the left-hand side; -that the engineer was in his proper place on the right side of the engine-cab, looking out constantly, but his vision, for several feet in front of the cow-catcher, was obstructed by the boiler and carriage of the engine; and that the fireman was at his post ringing the bell, and unable to keep a lookout on the left-hand side of the engine; we might conclude that the death of the child was an accident not within the power of the engineer to avoid, and that the court might have given a binding instruction to the jury." Then, indeed, the rate of speed would be immaterial, for, upon such a sudden appearance of the child on the track, no rate of speed, no matter how slow, could have saved it. But it was because these facts were not so fixed and certain, that the question of negligence must necessarily go to the jury, to ascertain exactly how they were ; and for the same reason the rate of speed became an element properly belonging to the case. Only two witnesses saw the accident happen. One of them, S. A. Moore, coming out of an alley into Cotton street, which crosses Cresson street and the railroad track at right angles, saw the child and the locomotive at the same instant at the crossing. To him the sight and the accident were simultaneous, so that his testimony gives us no information of the previous position of the child while the train was moving up Cresson from Gay street to Cotton. The other witness, Benjamin Levering, saw more. He crossed Cresson at Cotton street; saw the engine coming. Saw it when it left the depot at Gay street. The child was then on the upper side of the road ; after crossing, he himself turned up Cresson street, and in doing this turned his back upon the child ; for he says, just as I turned round the child went on the track, and the cow-catcher struck her, the train then going over eight miles an hour. In his Crosá-examination he says, when he got opposite to the store at the upper corner of Cotton street, the child was then on the side of Mr. Long’s house, and when he got over, the child was between the tracks. Thus it is very evident the testimony of this, the only witness who saw the child before the train reached Cotton street, left it an open question of fact where the child was, and whether she was not visible to the engineer had he kept a constant lookout while the train was moving up Cresson street, before it reached Cotton street, and whether a slower rate of speed would not have enabled the engineer to discover the child, as well as to reverse his engine before it came upon her. Two of the witnesses testify the speed to have been not less than eight miles an hour, and Levering gives as a reason for his belief, that he had lived there all Ms lifetime, and of course was in the habit of judging of the speed. Thus it is evident that the position of the child while the train was moving up Cresson street, the lookout of the engineer, the place of the fireman, the rate of speed, and all the circumstances, were matters entering into the question of negligence, taken into connection, also, with the all-important fact that Manayunk is a closely built, populous town, Cresson street a public thoroughfare, not of great width,-where many persons of all ages, sexes and condition are constantly passing and repassing, and crossing the tracks of the railroad rightfully. It was, therefore, clearly the province of the jury to ascertain from the evidence the true position of the child while the train was moving up Oresson street, when and how far the engineer ought to have seen the child in advance of the locomotive, and whether he was keeping a due lookout, anda properly regulated rate of speed, in traversing a populous street. It was in view of this duty of the jury, the instructions of the judge, contained in the first three assignments of error, were apposite and correct. We disagree emphatically to the position taken by the learned counsel of the railroad company that the rate of speed at the time was not material, and that seven or eight miles an hour is a rate of speed compatible with safety in passing through the streets of a populous town. While it is true that trains must be run at a high rate of speed to reach their greatest utility, populous towns and cities must be exceptions, when the speed must be moderated in view of the danger of life, limb and property. Where the people and the trains have a common right to be, and to have a joint use of the highway, the rights of each must be regarded. These remarks dispose of the first three assignments of error.

There can be no just complaint against that part of the charge recited in the fourth assignment. It does not contradict the answer to the defendants’ fourth point. The learned judge affirmed all his points, including the fourth, stating that it is negligence and would prevent a recovery for parents to suffer an infant less than two years and two months old to wander upon a railroad track when trains are constantly passing. In that part of the charge recited in the fourth assignment, the judge said, “ that the fact that the child is found in the street affords a strong presumption of negligence on the part of the plaintiffs. You will, therefore, consider -whether the mother took reasonable eare of the child; if she did not, it was negligence.” To suffer a child to wander on the street has the sense of permit. If such permission or sufferance exist, it is negligence. This is the assertion of a principle. But whether the mother did suffer the child to wander is a matter of fact, and is the subject of evidence, and this must depend upon the care she took of her child. Such care must be reasonable care dependent on the circumstances. This is a fact for the jury. If she did not exercise this care she was negligent. What more than this can be demanded of her ? When a railroad runs through a populous city has the company a right to exact a harder measure, and are we to say, as a matter of law, that the citizens are to be imprisoned in their houses, or their children caged like birds, otherwise it is negligence ? Is it negligence for the poor who congregate these crowded streets, unless, even in the summer’s heat, they live shut up in the noisome vapors of their closed tenements, without a breath of healthy air? Is this the life they must lead or be adjudged to be negligent ? This mother gave her child a piece of bread, to satisfy it, closed the kitchen door to keep it in, and went to the next room to scrub the oil-cloth on the floor, and before her labor was finished and in less than five minutes, the mangled body of her little one was brought in and laid before her. We have no reason to believe that her love for her child was less than that of the more favored of her sex, having servants at their beck. Because the child managed to lift the latch and momentarily disappeared, are we to say this was negligence per se, and that she suffered her child to wander into the street? What sort of justice is that which tells the mother agonizing over her dying child, your negligence caused this ? You suffered your child to run into the jaws of death? We cannot perceive any fault in the railroad company. A speed of eight miles an hour along this populous thoroughfare was all right. We can endorse no such cruel doctrine ; but we must say, as wo said in Kay v. Railroad Company, the doctrine which imputes negligence to a parent in such a case is repulsive to our natural instincts, and repugnant to the condition of that class of persons who have to maintain life by daily toil: 15 P. F. Smith 269. The judgment is aflirmed.


text:
    O’Neill et al. versus Wilt.
    1. A bond under the Sheriff’s Interpleader Act is forfeited, if on the trial of the issue the plaintiff is nonsuited under the Act of April 14th 1846, for the non-appearance at the trial of himself or his counsel and the goods are not afterwards forthcoming.
    2. The issue is under the power of the court as other issues, and the plaintiffs can be compelled to try or submit to a nonsuit.
    3. The power of the court is not arbitrary, but of sound discretion, to be exercised in view of the circumstances.
    4. The nonsuit ends the particular issue and determines it in favor of the execution-creditor so far at least that the sheriff may sell the goods, without liability to an action of trespass.
    6. Whether the claimant’s right of property is finally barred by such non-suit not determined.
    February 11th 1874.
    Before Agnew, C. J., Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 160, to January Term 1873.
    This was an action of debt on a bond in a sheriff’s interpleader, brought March 30th 1872, by Charles Wilt against Charles O’Neill, Alexander Patton and Alexander Foster.
    To January Term 1870 of the District Court, Charles Wilt issued a fieri facias on a judgment theretofore recovered by him against William Halpin, and levied upon goods as the property of Halpin. Charles O’Neill and Alexander Patton, two of the defendants, claimed the goods. The court awarded an issue to determine the ownership of the property, and under the order of the court, O’Neill and Patton, with Foster as their surety, entered into bond dated July 2d 1870, in the penalty of $1500, conditioned “ that if the said goods, so levied upon and claimed as aforesaid, shall be forthcoming upon the determination of the said issue to answer the said writ of execution, if the said issue shall be determined in favor of said Charles Wilt, or if so many of them shall be forthcoming as shall be determined not to be the property of said Charles O’Neill and Alexander Patton, then this obligation to be null and void.”
    When the feigned issue came on for trial, neither the plaintiffs nor their attorney appearing, the court directed a nonsuit to be entered, under the Act of April 14th 1846, Pamph. L. 829, 2 Br. Purd. 1169, pi. 36.
    A rule to show cause why the nonsuit should be taken off was granted. Testimony was heard under this rule, and it was discharged.
    The plaintiff in this issue then brought this suit on the inter-pleader bond.
    The cause was tried October 81st 1872, before Lynd, J. The plaintiff gave in evidence the record and proceedings under the execution; the bond, and the record of the nonsuit in the feigned issue. He also gave evidence of the value of the goods levied on under the execution and claimed by the defendants, and that they had not been forthcoming.
    The court instructed the jury to find for the plaintiff for the amount of his claim, if they believed 4he testimony as to the value of the goods, and reserved the question whether the nonsuit in the feigned issue was a determination of that issue within the meaning of the condition of the bond upon which this suit is brought.
    The jury found for the plaintiff for $868.81.
    The court in banc afterwards entered judgment for the plaintiff on the verdict upon the point reserved.
    The defendants took out a writ of error and assigned for error the entering of judgment for the plaintiff on the point reserved.

      W. S. Price (with whom was G. H. Armstrong), for plaintiffs in error.
    The surety, Foster, was not a party to the feigned issue, and should have the determination of a jury before his contingent liability could be fixed: Sheriff’s Interpleader Act, April 10th 1848, sec. 9, Pamph. L. 450, 1 Br. Purd. 643, pi. 48. A nonsuit cannot be entered in a feigned issue: Vansant v. Boileau, 1 Binn. 444; Muhlenberg v. Brock, 1 Casey 517.

      C. H. Hart, for defendant in error.
    In Pennsylvania a feigned issue is to every legal intent an action: Woods v. Woods, 17 S. & R. 12; McDaniel v. Haly, 1 Miles 353; Ringwalt v. Ahl, 12 Casey 336. The issue must be tried as a strict issue at law: Black v. Lamb, 1 Beasley 123; Black v. Shreve, 2 Id. 455; Carlisle v. Foster, 10 Ohio, N. S., 198 ; 2 Danl. Ch. Pr. (Perkins’ ed.) 1115; 1 Hoff. Ch. Pr. 511; 1 Turn. Prac. 450 ; 3 Greenl. on Evid. 298. Plaintiff in a feigned issue may suffer a nonsuit, if for any reason he so desires: 2 Arch. Pr. 646; Buller’s Nisi Prius 326; 3 Danl. Ch. Pr. 1305; Barnes v. Headley, 1 Campbell 164; Garrat v. Garrat, 4 Yeates 244; Hœcker v. Hœcker, 7 Phila. 371; Minium v. Hoig, 10 Casey 396.
   The opinion of the court was delivered, February 16th 1874, by

Agnew, C. J.

This was a sheriff’s interpleader bond, conditioned that the goods levied upon “ shall be forthcoming upon the determination of the said issue to answer the said writ of execution, if the said issue shall be determined in favor of the said Charles Wilt.” The sole question is whether a peremptory non-suit, under the Act of 14th April 1846, 2 Br. Dig. 1169, pi. 36, because of the non-appearance of the plaintiff in the issue or his counsel, is such a determination of the issue as will operate to forfeit the bond, if the goods be not forthcoming. We perceive no good reason why it is not. The issue is for the protection of the sheriff, and to save litigation: Bain v. Funk, 11 P. F. Smith 185; Bain v. Lyle, 18 Id. 60. It should be under the power and superintendence of the court, just as other issues are, else it would be in the power of parties to delay or prevent the trial, in disregard of the interests of justice. Hence the plaintiff can be forced to trial or compelled to submit to a nonsuit: Minium v. Horg, 10 Casey 396. The power of the court is not arbitrary, but one of sound discretion, to be exercised in view of the circumstances. If, therefore, the case be regularly on the trial list, and called for trial, and the plaintiff or his counsel do not appear, the court may, in the exercise of this discretion, order a nonsuit under the Act of 1846.

Without this power the controversy about the right of property in the goods may be prolonged indefinitely, to the prejudice of the execution-creditor.

This brings us to consider the effect of the nonsuit. If it be no determination of the issue in favor of the execution-creditor, a claimant, by repeated postponements, or by repeated renewals of the issue, may finally worry out the plaintiff in the writ by non-suit after nonsuit. The claimant is entitled as of right to ^ut one issue in the same case, and not to many. Hence, if there be a nonsuit, he cannot be reinstated in his issue, unless by the grace of the court for cause. It would be injustice to suffer him to renew the contest de novo as often as he is nonsuited. The non-suit, therefore, ends the particular issue, when not set aside by the court, and this necessarily determines the issue in favor of the execution-creditor, so far at least that the sheriff may sell the goods without liability to the claimant’s action for a trespass in the seizure and sale. The claimant having had his day in court, and failing to prosecute his claim, is barred of his action against the officer, and is bound to return the goods or forfeit his bond. Whether his right of property is finally barred by such a nonsuit, it is not necessary we should now determine, the question not being before us. ■ It is sufficient to say the bond is forfeited if the goods be not forthcoming; and in such event the surety is bound as well as the principal.

Perceiving no error in the record, the judgment is affirmed.