VOL. IV.

THURSDAY, APRIL 19, 1883.

No. 7

SUPREME COURT.

Appeal of John Jones.

The 3d section of the Act of 1872 does not give a lien on chose in action in favor of wages claimants; the lien is limited to such property as is subject to seizure and sale on execution.

Moneys received from the insurance of a woolen mill must be distributed pro rata among all creditors; the wages of operatives in the mill are not entitled to a preference in such distribution.

The proceeds of a crop of wheat, growing at the time the labor of operatives was performed and severed, by sale or otherwise, before the real estate is sold, is properly applicible to the payment of their wages, in preference to the lien of a judgment on the land. That the severance was produced by the sale of a receiver will not affect the rule.

IT SEEMS that the proceeds of a grass crop, grown after claims for wages had accrued, should, however, be awarded to lien creditors in their order.

IT SEEMS, ALSO, that the proceeds of old iron, which had formed a part of the machinery of a mill destroyed by fire, should be distributed as real estate.

Certiorari to the Court of Common Pleas of Chester county.

Robert Preston was in 1878 the owner of woolen mills and other real estate, which was encumbered with liens. In that year he entered into copartnership with one Firth, and the business of manufacturing woolen goods was carried on by them under the firm name of "Robert Preston." The stock and machinery in the mill, and the real estate became, by virtue of the articles, partnership property. The firm failed, and on February 12, 1881, ceased operations. On the same day Preston made an individual assignment for the benefit of creditors. On June 22, 1881, a receiver of the firm was appointed by the court. On June 1, 1881, the mills were destroyed by fire, having been insured the previous January in the name of Robert Preston.

The assets for distribution were, (1) the proceeds of the sale of corn, grass and wheat; (2) the proceeds of the sale of old iron which had formed part of the machinery of the mill destroyed by fire; and (3) moneys received from the insurance on mill. The corn was harvested in the fall of 1880; the wheat was sown the same fall; and the grass was grown in the

The court below, FUTHEY, P. J., applied the proceeds of the grass and old iron to lien creditors, but allowed a preference out of the proceeds of the corn, wheat and insurance moneys, to the wages claim

ants.

This appeal was then taken by John Jones, a lien creditor.

March 19, 1883. STERRETT, J. The subject of complaint in the first and secand specifications is that the amount realized by the receiver from the sale of corn and the growing wheat crop, was erroneously awarded to the appellees on their respective claim for wages, under the Act of 9th April, 1872, to the exclusion of appellant's claim.

The corn was grown on the land bound by appellant's judgment; but having been garnered in the fall before the receiver was appointed, it came into his possession as personal property of the insolvent firm, in whose service the wages claimants were employed. The wheat, having been sown the same fall, was a growing crop at the time the wages were earned, and in that condition it was afterwards sold by the receiver as personal property. The learned judge was clearly right in so treating it.Growing crops, the product of agriculture, pass to the administrator or assignee for the benefit of creditors, as the case may be, and are liable to be seized and sold on execution as personal chattels of the debtors; Patterson's Appeal, 11 P. F. Smith 294; Hershey v. Metzgar, 9 Norris 217.All that is required is that there should be, as there was in this case, a severance, by sale or otherwise of the growing grain, before the land itself is sold. It is quite clear that the appellant, a judgment creditor, had no lien on the growing wheat

crop or the products thereof. If he was interested in the proceeds of either it was only as a general creditor of the insolvent firm. As to the proceeds of the old iron, which had formed part of the machinery of the mill destroyed by the fire, and the grass crop, which, in an agricultural sense, was wholly grown after the claims for wages had accrued and while the land was in the hands of the receiver, the court, upon principles recognized in Altemose v. Hufsmith, 9 Wright 128; Reiff v. Reiff, 14 P. F. Smith 134; Bausman's and Herr's Appeal, 9 Norris 178, and other cases, very properly drew a distinction in favor of the appellant as a judgment lien creditor; but no question as to these items arise in this case.

As we have seen, when the wages were earned and the employers became insolvent, the corn and the growing wheat crop were personal property of the firm-chattels, not in any manner bound by the lien of pre-existing judgments, but liable to seizure and sale on execution. This being so, we are of opinion that, according to the true interpretation of the Act of 1872, the employees in the mill had a lien upon both, which adhered to the proceeds thereof in the hands of the receiver, and hence the court was right in awarding that part of the fund to them. The first section of the act provides that all moneys due for labor and services rendered by those belonging to either of the classes mentioned therein, "shall be a lien upon said mines, manufactory, business or other property, in and about, or used in carrying on said business, or in connection therewith, to the extent of the interest of said owners or contractors, as the case may be, in said property and shall be preferred and first paid out of the proceeds of the sale of such mines, manufactory, business or other property as aforesaid; provided that the claim of such miner, mechanics, laborer and clerk, thus preferred, shall not exceed $200." It is also provided in the 4th section of the act, "that no lien of mortgage

or judgment entered before such labor is performed, shall be affected or impaired thereby." The 3d section of the act declares that "in all cases of the death, insolvency or assignment of any person or persons, or chartered company, engaged in operations as herein before mentioned, or of executions issued against them, the lien of preference mentioned in the first section of this act, with the like limitations and powers shall extend to every property of said persons or chartered company."

This clearly gives the appellees a lien on the personal chattels of the firm, including the corn and growing wheat crop in question, and also upon the real estate, subject to the right of prior mortgage and judgment creditors. The first and second assignments are not sustained.

The question raised by the third and fourth assignments is whether the appellees had a lien also on the insurance policy or proceeds thereof. When the mill, machinery, etc., were destroyed, the policy became a chose in action, and the money afterwards realized therefrom came into the hands of the receiver as part of the assets of the firm. As has already been observed, the act gives the employees therein named a lien, not only on the real estate, but also on the personal goods and chattels of their employers; but we think it would be a strained construction to hold that it was intended to give them a lien on choses in action. There is nothing in the phraseology of the act or its supplements to indicate a legislative intention to extend the lien beyond such personal property as is subject to seizure and sale on execution. The Act of the 8th May, 1874, P. L. 120, postpones coal lease mortgages to the lien of wages mentioned in the Act of 1872. By act of April 20, 1876, P. L. 43, the wages claimants may, after the expiration of thirty days from any voluntary assignment for the benefit of creditors made by their employers, enforce the collection of their claims, just as if no

such assignment had been made; and if the assignee has sold the property, he may be compelled to file his account thereof forthwith. The last Act (June 12, 1878, P. L. 207) gives the employees a preference over landlords in all claims for rent of mines, manufactories or other real estate held under lease, where the lessee is the party employing the miners, mechanics, laborers or clerks, provided that these workman shall give notice of the nature and amount of their claims to the landlord or his bailiff before actual sale of the property levied on.

The language employed in the several acts appears to contemplate a lien upon the employer's real estate and such personal property as is ordinarily the subject of seizure and sale on execution or distress for rent, and not upon choses in action. We think therefore, that the learned judge erred in awarding the proceeds of the insurance policy to the labor claimants, to the exclusion of other creditors. That part of the fund is not subject to lien in favor of any class of creditors, and hence it should be distributed pro rata among all.

Decree reversed at cost of appellees and it is ordered that the record be remitted with instructions to distribute the fund in accordance with this opinion.

Dunkle v. Harrington.

Some of the personal property that had been levied upon and advertised for sale was loaned by the sheriff to a third party, the sheriff told the bidder at the sheriff's sale that the property loaned by him was to be sold with the other property in his actual possession. HELD, that the bidder could recover from the sheriff.

hold, but which at the time was missing. In answer thereto, the sheriff informed him that there was that amount of casing which belonged to the property; that he had loaned it to some one interested in an oil well on the Booth farm; that it was to have been returned before the sale; that it should be included in the sale, and that he also repeated publicly that he would inwould deliver it to the purchaser. He clude the casing in the sale, and that he would deliver it to the purchaser. This is the testimony of the two Brennemans and of Charles Harrington. It is corrobois contradicted by no one except the derated by the evidence of Miles Sloan, and fendant himself. Induced by this declaration and agreement of Dunkle, the plaintiff bid off the property for the sum of $385, and at once paid this amount to the sheriff's clerk.

contends, that the evidence ought not to have been submitted to the jury for the purpose of establishing a personal undertaking on the part of the sheriff to sell deliver the casing. But why not? Had property as his own, no one, we think, he as a private person been selling the would contend that he would not have been bound by such a contract. His duty as an officer was a plain one; he had but to pursue the directions of his writ withwhat was not in his possession. Doubtout undertaking either to sell or deliver less he would have so done but for the fact that he had previously and unwarrantably intermeddled with the property, and made himself personally liable therefor by loaning it to an operator on the Booth farm. Herein is found not only the reason, but the consideration for this anomalous contract. By this arrangement with a purchaser at his sale, the sheriff relieved himself from the undoubted obligation which he was under, to the plaintiff in the

The learned counsel for the defendant

January 2, 1883. GORDON, J. On the 15th day of June, 1878, a writ of levari facias, at the suit of W. P. Bratton against Johnston and McIntyre, was issued to B. B. Dunkle, as sheriff of the county, of Clarion, commanding him to sell a certain leasehold estate of the defendants as therein described. On the day of the sale, and just before the bidding commenced, inquiries were made by Harrington of the sheriff, concerning some four hundred feet of casing which had been upon the lease

had disposed of. If, then, this contract was made for his own benefit, why was it not personal, and why cannot it be enforced as such? We have as yet heard no reason which ought to induce us to adopt a contrary conclusion, and we therefore cannot agree to sustain the second and fourth assignments of the plaintiff in error.

Of the two remaining exceptions little need be said, as they are of no consequence. The writ of injunction, or prohibition, was properly admitted for the pur

pose proposed, the contradiction of the defendant. It was directed to the sheriff and by him executed, and it might fairly be presumed that he knew its contents. In fact, however, an inspection of the paper shows it to have been of so little account as a matter of evidence that we may well wonder why its admission was thought worthy of an exception.

As to the ruling out of the parol proof of the contents of the advertisements, we may, as an abstract proposition, admit that that action of the court was wrong; nevertheless, as we cannot see how evidence of that kind could affect the case in any way, we will not consent to reverse on a worthless abstraction, and this the rather as the defendant successfully opposed the introduction of the very same kind of evidence on part of the plaintiff. The preceding acts of Dunkle as sheriff had really little or nothing to do with the main point of the case; the point on which alone it turned, the fact of their having been a personal contract at the time of the sale, by which he undertook to deliver the property to the plaintiff. Upon the question of that contract the character of the advertisements could have no effect; hence their admission or rejection was alike unimportant.

The judgment is affirmed.

Mulligan v. Knickerbocker Ice Co.

Where the transcript is in other respects regular, and there has been a trial on the merits, and the judgment is less than one hundred dollars, and the process shows that the damages claimed were less than one hundred dollars, the court will not reverse because the amount of the

claim is not set out on the transcript. Certiorari.

The opinion of the court was delivered April 16, 1883, by

RICE, P. J.-The exceptions to this record were filed nine days before the argument court in November, 1882, instead of ten, as strictly required by the rule of court. But the third argument court has been reached, and it is now too late to move, for the first time, to have the exceptions dismissed because they were filed a day too late.

The jurisdiction of a justice of the peace is determined, in an action of trespass or of trover, by the amount of the damages alleged to have been sustained, or the value of the property claimed, and not by the amount of the judgment But where

the transcript is in other respects regular, and the summons shows that the damages alleged to have sustained are less than one hundred dollars, and there has been a trial on the merits, and the judgment entered is for less than one hundred dollars, the failure to set out the amount of the claim on the transcript does not seem to us to be such a material irregularity as to warrant a reversal on certiorari. The case seems to be ruled by Miller v. Savage (2 Luz. Leg. Reg. 191). Luz. Leg. Reg. 191). As to the authority for referring to the summons, we refer to Lloyd v. Sayer, (No. 205, October term, 1882, Mss.)

The proceedings are affirmed.

1. The wife petitioned for divorce on the ground of desertion; the husband's answer simply denied the allega

tion of the petition; HELD, that she was entitled to a

reasonable allowance for counsel fees, etc.

2. A woman who is living in a state of adultery has no claim upon her husband for support, and where this is shown clearly the court will refuse on application for alimony pendente lite.

Rule to show cause why the respondent shall not pay the libellant a reasonable sum to provide an attorney and procure witnesses in her cause, and to maintain and support her ad litem.

November 27, 1882. RICE, P. J. We conclude, after a careful consideration of the evidence taken on this rule, that the application for alimony pendente lite ought to be refused. A woman who is living in a state of adultery has no claim upon her husband for support, and where this is clearly shown the court will, in the exercise of their discretion, refuse an application of this nature. The reasons for this rule are forcibly stated by Thayer, P. J., in Stock v. Stock (11 Phila. 324.)

The request for an allowance for counsel fees rest on a different basis. The answer of the respondent does not charge adultery against the libellant, and to meet the issue, as the respondent has seen fit to present it, she it entitled to a reasonable allowance to pay counsel and to procure the attendance of witnesses.

The application for alimony pendente lite is refused, but it is ordered that the respondent, within twenty days from this date, pay to the libellant, or to her attorney of record, the sum of twenty dollars as counsel fees, and the sum of five dollars to procure the attendance of witnesses.