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affairs, or the honor and character of the officer as a public servant, the conclusion reached is the same: Public policy can not tolerate such dealings by an officer with his own department or office. It will not uphold them. It follows that the warrant issued to the deputy secretary of internal affairs' confers no title, as against a claimant under an older survey, to the land in controversy. The warrant was issued contrary to public policy. The board of property should have refused to accept the return of survey under it, and to permit a patent to issue for it. The learned judge of the court below rightly rejected it, when offered on the trial, for the purpose of showing title in the appellants, and the judgment is now af. firmed.

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1. The sheriff and the assignee for benefit of creditors should not be joined as parties defendant in a bill for an injunction by contract and attaching creditors of the assignor to restrain a sale of the latter's property on execu tions issued on confessed judgments in favor of other creditors.

2. A bill for an injunction by mere contract creditors will not lie to restrain execution sales of the debtor's property on the ground of fraud and collusion between the latter, the execution plaintiffs, the sheriff, and the assignee for benefit of creditors of such debtor. 3. Nor, as a general rule, will such bill lie in favor of attaching creditors, but they will be left to pursue their remedies at law.

Sterrett, C. J., dissenting.

Appeal from court of common pleas, Philadelphia county.

Bill by the E. R. Artman-Treichler Company and many others against Isaac Giles, trading as Giles & Co., Max Giles, Leo Giles, S. Dessau, Mayer L. Kahn, assignee for the benefit of creditors of Giles & Co., and Horatio P. Connell, high sheriff of Philadel. phia county, for an injunction to restrain a sheriff's sale of the property of Giles & Co., and for the appointment of a receiver. From a decree continuing a temporary injunction theretofore issued, defendants appeal. Reversed.

Max Herzberg and John G. Johnson, for appellants. John Weaver, John M. Gest, John Sparhawk, Jr., Julius C. Levi, William S. Divine, and Samuel B. Huey, for appellees.

MITCHELL, J. There are some formal objections to the bill, which should be briefly noticed. It joins separate respond. ents, acting in different capacities, upon different rights, and not chargeable with any joint liability or interest in the relief sought. Among these respondents are the sheriff and the assignee for the benefit of creditors, neither of whom is a proper party to a bill of this nature. The sheriff is not, because he is acting under the com. mand of a writ, and accountable for his

action to the court from which it issued. This is not practically of any importance in the present case, because the writ and the bill are in the same court, but it is incorrect practice. An injunction to stay proceedings at law should go against theparty, not against the sheriff or other officer, who is already under the mandateof one court, and should not be put in peril of disobedience by discordant orders of conflicting jurisdictions. For the samereasons the assignee should not be madeparty. He is accountable to another court, which has the exclusive control over his official action, and may perchance hold that he should have done the very thing this injunction prohibits. But the substantial question is the right of complainants to invoke the aid of a court of equity to interfere with the due course of pro ceedings at law by a creditor to obtain. satisfaction of his judgment. It is conceded that this injunction is without prece dent in Pennsylvania. The complainants are of two classes,-one mere simple contract creditors, with neither judgment nor lien; the other, also without judgment, but with such lien as they have obtained by attachment under the act of 1869. As to the former, the overwhelming weight of authority is against the asserted right. It is enough for us to quote the deliberate opinion of Chancellor Kent in Wiggins v. Armstrong, 2 Johns. Ch. 144, where, after stating frankly that his first impression was in favor of the jurisdiction in equity, he concludes, after examination of thecases, that it could not be sustained, and that there ought to be no interference until the creditor has established his title by judgment. "On the strength of settled authorities" he dismissed the bill. The cases cited by appellants show that this view has been followed with great uniformity in nearly all the states where the question has arisen. The cases also show that the same general rule applies to the second class of the complainants,-those who have issued attachments. Exceptional cases may arise in which creditors hav-ing a lien, even though only by attachment on mesne process, may have a standing for assistance in equity, but the presumption is against them, and for the same reasons as in regard to the other class. As a general rule, they are left to their rights and remedies at law. The present is not such an exceptional case as would bring it within our authorities. As already said, there is no precedent upon the same state of facts, but the general rule that equity will not interfere between debtor and creditor, but will leave each to his rights and his remedies at law, issettled beyond all question. The cases in which equity has been most frequently invoked are where the creditor is alleged to be proceeding under forms of law, but in violation of other parties' rights. this class are Gilder v. Merwin, 6 Whart. 522; Riley v. Ellmaker, Id. 545; Reeser v. Johnson, 76 Pa. St. 313; Taylor's Appeal, 93 Pa. St. 21; Davis v. Michener, 106 Pa. St. 895, and Walker's Appeal, 112 Pa. St. 579, 4 Atl. Rep. 13. The only exception so far recognized is in the case of a levy upon a wife's separate property for a debt

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of the husband. It was held in Hunter's Appeal, 40 Pa. St. 194, that a bill would die for an injunction in such case, but the decision was put upon the ground that the statute expressly probibits such a levy, and the fact that the wife's title was un-disputed. In the subsequent case of Thompson's Appeal, 107 Pa. St. 559, an injunction was awarded against repeated actions of ejectment brought by a sheriff's vendee of the husband's title, but it was again on the ground that such action was contrary to the statute, the wife's estate being undoubted, and the ejectments not brought in good faith. If there be any doubt or dispute on the facts, the creditor is entitled to levy and sell, and proceed by ejectment on the sheriff's deed. Winch's Appeal, 61 Pa. St. 424. In this case it is said by Agnew, J., that the jurisdiction in -equity "was never intended to be used to obstruct the collection of debts." And in Taylor's Appeal, supra, the present chief justice, after stating the rule that equity will not intervene, but the creditor will be allowed to proceed with his execution, and test the title by ejectment, continues: "It may happen that the bona fide owner of real estate is subjected to the inconvenience of having his property levied on for the debt of one who is not, and has never been, interested therein;

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*but such results cannot be wholly avoided. Relief must be sought, when they so occur, in speeding the determination of the questions in dispute by such means as are provided by law for that purpose.' ." The only case at all analogous to the present, in which a creditor not having a judgment has been permitted to interfere with the debtor's disposition of his property, is Fowler v. Kingsley, 87 Pa. St. 449. In that case the bill averred that the debtor had conveyed land to his sonin-law by collusion, to defraud his creditors, and that the grantee was about to convey to bona fide purchasers. debtor having died, the bill was sustained upon the ground that the creditor complainant, though without a judgment, had an express statuory lien, which gave him a standing. To sustain the present injunction would be going a decided step further than any case adjudicated, and in -opposition to established principles. The subject is not without serious difficulties in either aspect. That the present practice affords some opportunities for fraud must be conceded, and the case in hand, full as it is of suspicious circumstances, is an apt illustration. But, on the other hand, the contrary practice would be susceptible of enormous abuse if every suspicious or unscrupulous self-asserted creditor may, without any proof of his own claim, arrest the regular process of law, and tie the hands of the debtor and his bona fide creditors by vague and general charges of fraud and collusion, including, as in the present case, with very slight, if any, evidence at all, the sheriff and the assignee for the benefit of creditors. "A rule of procedure which allowed any prowling creditor, before his claim was definitely established by judgment, and without reference to the character of his demand, to file a bill to impeach transfers, or to

interfere with the business affairs of the alleged debtor, would manifestly be susceptible of the grossest abuse. A more powerful weapon of oppression could not be placed at the disposal of unscrupulous litigants." Wait, Fraud. Conv. § 73. As said by our Brother Sterrett in Taylor's Appeal, already quoted, inconvenient results in individual cases cannot be wholly avoided, and the relief must be sought by the means provided by law. We think it better to stand on the established remedies, and these are not so inefficient and inadequate as appellees seem to think. The creditors who have attachments on the goods have, of course, a standing to rule the sheriff to pay proceeds of sale into court, and there to question the validity of the confessed judgments, so as to increase the fund going to the assignee for their benefit. The assignee can be made to do his full duty, or be discharged by the court having jurisdiction over him. And it may be that, if the assignment is shown clearly to be fraudulent and collusive, and meant to binder and delay creditors, and that their hands are thereby tied as against the fraudulent judgments, and they are left without legal remedy, then not only can the assignee he removed, but the assignment itself may be vacated and declared void on a creditors' bill. This question, however, is not raised in the present case, and we do not now decide it. It can only be raised on a direct attack by a bill for that purpose in the court having jurisdiction over the assignment. The present bill cannot be sustained.

Injunction dissolved, and bill dismissed.

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LANDLORD AND TENANT-DISTRESS-SALE OF THIRD PERSON'S GOODS-TRESPASS.

1. The goods of a third person consigned to an agent to be sold on commission are not liable to distress for rent due by the agent, and the landlord, if he knows that the goods are so owned, and has them sold under distress, is liable to the owner in trespass.

2. Where the goods of a third person left on the premises of a tenant for sale on commission are sold upon a distress warrant issued by the landlord against the tenant, without the owner's having notice thereof, the owner is not bound to replevy the goods under the statute, but may proceed in trespass for damages.

Appeal from court of common pleas, Lancaster county; J. B. Livingston, Judge.

Action of trespass by Theodore P. Brown and H. Y. Simpson, partners trading as the Worcester Organ Company, against D. P. Stackhouse and Christian S. Kline. There was a judgment for plaintiffs, and defendants appeal. Affirmed.

The charge of the court below, omitting the points and answers thereto, was as follows: "Gentlemen of the Jury: This is an action of trespass, brought by plaintiff, the Worcester Organ Company,

against the defendants, Stackhouse and Kline, to recover from Stackhouse and Kline, by way of damages, the price and value of four organs, which the plaintiffs say the defendants unlawfully and wrongfully took and sold, which belonged to plaintiff and not to Mr. Manby, as whose property they distrained upon and sold them, with interest thereon from January 1, 1889. It appears from the evidence that Mr. Stackhouse is a resident of this cicy, and C. S. Kline is a constable of the township of West Hempfield, in the county of Lancaster. That a man named Manby, with his son, in 1888, were associated together in the sale of organs, pianos, etc. That the son drew out of the business later. That they leased a room in this city from Mr. Stackhouse, in which to con. duct and carry on their business. That the plaintiff, the Worcester Organ Company, consigned to Mr. Manby four organs, to be leased or sold on commission by Manby, the organs to be the property of the plaintiff. That during the time these organs were in the room which Manby had leased from Stackhouse, rent be. came due, which for some time remained unpaid, and that Stackhouse, having wait. ed for some time, issued a landlord's warrant, and placed it in the hands of Constable Kline for execution. That the constable distrained, levied on these pianos under and by virtue of this landlord's warrant, and sold them as the property of Manby, and for the injury and damage to plaintiff thereby this action is brought. Mr. Manby tells you that those organs were the property of the Worcester Organ Company, and were consigned to him to be sold on commission. That he informed Mr. Stackhouse that they were the property of the plaintiffs and consigned to him on commission before he seized them, and, after he seized them, before he sold them. That he notified Kline these were the goods of plaintiffs before the sale, on the day of sale, when Stackhouse and others were present; told the constable he would sell them at his peril. This is denied by Kline and Stackhouse. You will remember all the testimony, as well of defendants as of plaintiffs, and consider it all in mak. ing up your verdict. If these pianos were really the property of the Worcester Organ Company, and were consigned and intrusted to Manby to be sold on commission for the company plaintiff, then the law in such case is that goods intrusted to an agent to be sold on commission are not liable to distress for reut due by the agent to whom they are consigned. The general rule being that where the tenant in the course of his business is necessarily put in possession of the property of those with whom he deals, or those who employ him to sell on commission, etc., such property, although on the demised premises, is not liable to distress for rent due thereon from the tenant to his landlord, and could not be legally sold on or by virtue of a landlord's warrant. Goods deposited with another to a wait an opportunity to be sold are not liable to distress for rent owing by the bailee. This principle of exemption extends to every species of trade; not on account of the character of the in

dividual in whose hands they were depos. ited, but for the benefit of trade generally, which alone is to be considered, and for which only goods are by law to be favored and protected. * ** If you find from the whole evidence that the four or gans referred to therein were not the property of Manby, but were the property of the Worcester Organ Company, and were consigned by the company to Manby, to be sold by him on commission for the company, and that this was made known to Mr. Stackhouse, or he knew it before the distress and sale, your ver dict should be for the plaintiff for the value of the organs as shown by the evidence, with interest from January 1, 1889. But, if you find from the whole evidence that at the time of the distress and sale under the landlord's warrant, issued by Stackhouse, and executed by Kline, these four organs were not the property of the Worcester Organ Company, but were the property of Manhy, the tenant of Stackhouse, your verdict should be for the defendants."

Defendants' points were as follows: “(1) Legal notice of the distraint of the organs having been given to Mr. Manby, who testified he was the agent for plaintiffs, it was the duty of plaintiffs, under the act of assembly governing such cases, to replevy the organs as directed by said act; and this not having been done. plaintiffs cannot recover in this action of trespass, and the verdict must therefore be for the defendants. (2) The act of assembly is imperative in pointing out the remedy by replevin in such cases. (3) If the jury believe that either Mr. Stackhouse or Mr. Kline had notice that certain organs had been consigned to Mr. Manby, under the contract between plaintiffs and Manby, other than the four organs levied upon and sold under the landlord's warrant, such notice would not be sufficient to allow a recovery by plaintiffs, and the verdict must be for defendants." The first and third points were refused, the former on the ground that Manby was not the proper party to receive notice. The second point was affirmed, with the qualification that the property must have been legally distrained.

Plaintiffs' sixth and seventh points were as follows, and were affirmed: “(6) It being the uncontradicted evidence in the case that the property sold was the property of the Worcester Organ Company, left with Manby to be sold on commission, and that Manby had no prop. erty in the same, the verdict must be for the plaintiffs for the value of the orgaus, with interest from the time of the sale. (7) Where the property of a third person left on the premises for sale on commission in the course of trade is sold upon a landlord's warrant, the owner thereof, not having notice of the distress, is not bound to replevy the goods before the sale, but may proceed in trespass for damages against the landlord and his bailiff."

The specifications of error were in the court's answers to the sixth and seventh points of plaintiffs, and the first and second points of defendants

H. C. Brubaker and Chas. I. Landis, for appellants. Brown & Hensel, for appellees.

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GREEN, J. The question whether Stackhouse, the landlord, knew, before the distress and sale, that the organs distrained were the property of the plain. tiffs, was fairly submitted to the jury as essential to the right of recovery, and, when the verdict was found for the plaintiffs, the fact of such prior knowledge was conclusively established. There was ample testimony to support the allegation, and, although the defendants denied having such knowledge, a question of veracity only was raised by such denial, and that was a matter exclusively for the jury. The ultimate question which then arises is whether the distress was lawful or not. If not, the defendants were trespassers, and were liable as such. In Kerr v. Sharp, 14 Serg. & R. 399, we held that any irregularity in taking a distress makes the landlord, at common law, a trespasser ab initio," and we decided that an omission to appraise and advertise the sale of the goods distrained, agreeably to the act of March 21, 1772, was such an irregularity, and that trespass was the proper remedy. To the same effect is Brisben v. Wilson, 60 Pa. St. 452, in which we said, as no legal right or title can grow out of a trespass, the sale is invalid, and trover can be maintained against the purchaser of the goods. In Caldeleugh v. Hollingsworth, 8 Watts & S. 302, cited for the appellant, no notice was given to the landlord, before selling, that the machine distrained was the property of another, and left with the tenant for repairs; and that element, which is the controlling one in this case, was absent from that. That the goods of strangers consigned to an agent to be sold on commission are not liable to distress for rent due by the agent is such very familiar law that it is conceded by the appellant, and the merest reference to one or two of the cases on that subject will suffice the purpose of the present contention: Sewing Mach. Co. v. Sloan, 87 Pa. St. 438; Page v. Middleton, 118 Pa. St. 546, 12 Atl. Rep. 415. In this case the defendant caused the warrant of distress to be levied upon the plaintiffs' goods, knowing them to be the property of the plaintiffs, left with the tenant, Manby, for sale on commission, according to the verdict of the jury, and his distress was therefore unlawful, and constituted him a trespasser ab initio. That being the case, trespass was an available remedy to the owner as upon any unlawful taking. In the case of Machine Co. v. Spencer, 147 Pa. St. 468, 23 Atl. Rep. 774, the landlord had no knowledge of the title of the owner when the distress was levied, and, as soon as he was notified of the owner's title, he requested the owner to replevy the goods, and adjourned the sale to give him time to do so, but the owner did not replevy them, and waited till after the sale, and then brought trespass. He had distinct, actual notice of the distress before the sale, and had the opportunity to pursue the statutory remedy of replevin within the statutory time

of five days, but he declined to do so, and permitted the sale to proceed. We held he was bound to bring replevin. But here the distress was levied in Lancaster city, Penn., and the owners lived in Boston, Mass., and had no notice of the distress, and consequently no opportunity to replevy the goods within the five days. In view of all the facts of the present case, we think there was no error in the action of the learned court below. Judgment affirmed.

TAGG v. McGEORGE et al. (Supreme Court of Pennsylvania. May 22, 1893.)

MASTER AND SERVANT NEGLIGENCE-YOUTHFUL EMPLOYES AND DANGEROUS MACHINERY. 1. Where young persons without experience are employed to work at dangerous machines, the employer must give suitable instructions as to the manner of using them, and warning as to the danger of carelessness, and if he neglects such duty, or gives improper instructions, he is liable if by reason thereof injury results to the employe. Zurn v. Tetlow, 19 Atl. Rep. 504, 131 Pa. St. 213, and O'Keefe v. Thorn, (Pa. Sup.) 16 Atl. Rep. 737, distinguished. Rummel v. Dilworth, Porter & Co., 19 Atl. Rep. 345, 346, 131 Pa. St. 509, followed.

2. In an action against a master for injuries to a minor servant from a dangerous machine, the fact that the court, in answer to plaintiff's request to hold that, if plaintiff was young and inexperienced, it was defendant's duty to explain the danger to him, used the qualification "perhaps" in saying that, if plaintiff had experience from any other source, then ground for exception by defendant where the such explanation was not necessary, is not other instructions clearly told the jury that under such circumstances the explanation would not be necessary.

juries to a youthful servant from a dangerous 3. In an action against a master for inmachine which he was cleaning while in motion, there was evidence that the foreman told plaintiff to hurry up with his machine, as he would have also to clean another. Held, that it was proper to charge that defendant was liable if plaintiff was not aware of the danger, and, his will being subject to the foreman, he obeyed him, because he thought the foreman knew better, or because he was afraid to disobey. Lee v. Woolsey, 109 Pa. St. 124, and Kehler v. Schwenk, 25 Atl. Rep. 130, 151 Pa. St. 519, followed.

Appeal from court of common pleas, Delaware county.

Action by William F. Tagg, by his father and next friend, John S. Tugg, against William McGeorge, Jr., and others, executors and trustees under the will of Thomas Kent, deceased, for personal injuries. There was a judgment for plaintiff, and defendants appeal. Affirmed.

Isaac Johnson, for appellants. Ray W. Jones and V. Gilpin Robinson, for appellee.

DEAN, J. William F. Tagg, a boy past 13 years of age, was employed by defendants in their woolen mill at Darby, Delaware county. He went to work with the consent of and by contract with his fnther, who worked in the same mill. The boy commenced on 10th October, 1887, piecing at what is known as a "woolen

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mule." His wages were fixed at two dollars per week. The usual wages of a piecer are about six dollars. There was evidence tending to show that Henry T. Kent, one of defendants, made the contract for employment, and then put the boy in charge of Charles Chadwick, who had been foreman in the mill for many years. Under his directions and control be remained as a piecer at the mule up until the 31st of December, 1887. About 12 o'clock of that day, while cleaning the machine with waste, it being then running, the waste caught in the wheels, his hand was drawn in, and so completely crushed that amputation was necessary. The plaintiff then brought suit to recover damages, averring negligence on part of defendants, which resulted in the injury, (1) in putting a young and inexperienced boy to work at dangerous machinery without explaining to him its character, or warning him of its danger; (2) in directing him, by the foreman, Chadwick, to hurriedly clean the machine while it was running, without informing him of the peculiar danger incident to such work.

The law applicable to the issue is well settled. In the text-books, and, with rare exceptions, in all the adjudicated cases, the rule laid down in substance is: When young persons without experience are employed to work with dangerous machines it is the duty of the employer to give suitable instructions as to the manner of using them, and warning as to the hazard of carelessness in their use. If the employer neglect this duty, or if he give improper instructions, he is responsible for the injury resulting from his neglect of duty. He is not answerable for injury to adults, nor for the injuries to young persons who have had that experience from which knowledge of danger may reasonably be presumed, and that discretion which prompts to care. The cases cited by counsel for appellants are not in conflict with this rule. In Zurn v. Tetlow, 134 Pa. St. 213, 19 Atl. Rep. 504, the boy was between 14 and 15, and had received such instructions from the foreman as were necessary to the nature of his employment. in O'Keefe v. Thorn, (Pa. Sup.) 16 Atl. Rep. 737, the boy was over 14. He was employed to shove tin plates under a stamping machine, and was injured by thrusting his hand under the stamp. The machine was not dangerous. The consequence of putting the band under the stamp was as obvious to a boy of 14 as to a man of 40. There has been no departure by this court from the law so clearly and concisely stated by our Brother Williams in Rummel v. Dilworth, Porter & Co., 131 Pa. St. 509, 19 Atl. Rep. 345, 346: "In the case of young persons it is the duty of the employer to take notice of their age and ability, and to use ordinary care to protect them from risks which they cannot properly appreciate, and to which they should not be exposed. The duty in such cases to warn and instruct grows naturally out of the ignorance and inexperience of the employe, and it does not extend to those who are of mature years, and who are famiiar with the employment and its risks." This was the law, as

stated, in terms that could not be misunderstood, by the court below to the jury. There was evidence tending to show that the woolen mule was a dangerous piece of machinery even to the adult workman, and that it was highly dangerous to one attempting to clean it while running. As to whether the boy had received any instructions from the foreman, or had by experience or in any other way acquired a knowledge of the machine and the danger of attempting to clean it while running, there was conflicting evidence. It was of that character that the jury alone could determine the truth, and it was with proper instructions submitted to them. They were told explicitly, more than once, that if the boy, by instructions and warning from the foreman, or by information from others, or by experience while tending the machine, had knowledge of its dangerous character, there could be no reco very.

Complaint is made of the answer of the court to plaintiff's second point, because of the use of the word "perhaps." The point, in effect, requested the court to say that, if the jury found the boy to be young and inexperienced, it was the duty of defendants to explain to him the danger. The answer was: "I affirm that point, gentlemen, also with the qualification, perhaps, that if he had that experience from any other source, then it would not be necessary." It is argued that the direction should have been positive and peremptory that if he bad the experience, no matter where obtained, instructions and warning on part of the foreman were immaterial, and there could be no recov ry. Picking out this single word, and assuming that plaintiff's second point embraced all the instructions upon that subject to the jury, it is liable to the charge of error. But, taking this answer in connection with what was said in other portions of the charge, there was no room for misunderstanding on part of the jury. In the body of the charge this pointed language is used: "You are first to find whether this boy had knowledge, either by previous experience either at Wolfenden's or any other place, or by knowledge obtained while he was operating this machine after running it two or three months, that it was dangerous. Now, if he knew it was dangerous to attempt to clean that machine while it was in operation, then he cannot recover." This same positive instruction, in substantially the same language, was given three times in the general charge, and the same idea or thought is expressed in five of the nine answers to plaintiff's points. In view of this oft-repeated correct statement of the law, we must assume that the jury could not have been misled by a single inadvertent use of a word which did not express correctly the meaning of the court.

So far as concerns the general rule applicable to employers and young and inexperienced employes, the law was plainly and correctly stated to the jury. The contradictory evidence was impartially submitted to them, that they might find whether it was a fact that the employment-cleaning a running machine of this

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