by execution, mentioned therein." It will be observed that in the act of 1862, the six months within which the wages of labor are preferred, in a case such as the one before us, are reckoned from the date of the levy; in the act of 1872, the date of the sale is the point of time from which the six months are to run. Was it in the contemplation of the Legislature in passing the act of 1872, to allow liens to accumulate against personal property after it had been levied upon, with the result, in many instances, of sweeping away the proceeds of a sale from vigilant and meritorious execution creditors? It is a familiar rule of construction, that the real intention will always prevail over the literal sense of terms, especially when adherence to literal terms would lead to palpable injustice, contradiction and absurdity. There is no evidence that Mr. Schrader agreed to, or was in any way a party, to the use of the printing establishment by Mr. Burr, after it had been seized by the sheriff. If the broad construction claimed for the act of 1872 is the true one, it is plain that an execution creditor upon whose writ a levy has been made of property abundantly sufficient to satisfy his judgment, may yet realize nothing, in consequence of the interposition of liens created after the property was in the custody of the law. Without reference to the words "by execution or otherwise preceding the death or insolvency of such employer or employers," we think the preference given to the wages of labor under the act of 1872, cannot be extended to a time subsequent to the date of the levy. This construction, it seems to us, is alike consonant with reason and authority. The return of the sheriff established beyond controversy that he had seized the property and taken it into his own possession. A sheriff's levy necessarily disturbs the possession of the owner of the goods levied upon. It is a seizure. It cannot be made in Pennsylvania without having the goods levied upon, in actual manucapture or control. It vests the possession so fully in the sheriff, that he may maintain trespass for any disturbance of it; and of course it divests the possession of the owner. Even the owner himself may become a trespasser against the sheriff, by removing the goods from his control: Welsh vs. Bell, 8 Casey, 15. The very point before us has been disposed of in a few sentences in the case of Glass vs. Gilbert, 8 P. F. S. Chief Justice Agnew says (page 288): "Property levied is in the custody of the law, the end of which might be defeated if creditors could subsequently acquire a paramount interest in it. It was therefore held that a treasurer's warrant to the sheriff to sell the lands of a delinquent collector of taxes created a lien by seizure, which not only justified the sale, but preserved the proceeds of sale against lien creditors subsequent to the levy." We think the auditor committed no error in excluding claims for labor, which was performed subsequent to the time of the levy by the sheriff, from participation in the fund for distribution. Another controverted question involved in the report of the auditor grows out of a mechanics' lien filed by Pott & Vastine against F. A. Burr. When the hearing was had before the auditor, a rule was pending in court to show cause why this lien should not be stricken from the lien docket. This application was based on the decision of the Supreme Court in the case of St. Clair Coal Co. vs. Martz, 2 Legal Chronicle, 89. The auditor has made his report in the alternative, one distribution including this mechanics' lien, the other excluding it. It is too plain to admit of argument that the decision in St. Clair Coal Co. vs. Martz, is fatal to the lien as filed. It does not necessarily follow that Pott & Vastine cannot come in upon the fund. On the day of the sale they gave written notice of the amount they claimed as a lien on the press, engine, boiler and gearing, thus limiting it so as to avoid the legal objections to the lien as filed. Independent of their filing any paper, the statute gave a lien which had not expired when the sheriff's sale was made. If the claim filed be defective, the filing of it does not exhaust or affect the lien, which exists independently of it, till the six months have expired. A second, third, or fourth claim may be filed, and no prior one can be pleaded against the last. The means given to mechanics and material men, are not exhausted by an abortive attempt to pursue the directions of the statute, by filing the claim within six months. This is but the mode of giving it fruitful effect; and should it fail from some technical or even substantial defect, the lien is no more destroyed, than would be a bond, sued out by an improper or inappropriate writ. The claim still remains, and so does the lien, until barred by the lapse of six months after the work is finished or materials furnished. To hold otherwise might be attended not only by inconvenience, but gross injustice-a hazard which no analogy in the law calls upon us to encounter, and against which we are admonished by the frequent failures of these recorded claims upon merely formal grounds, or because of the want of the due observance of the statutory requisitions: Bournonville vs. Goodall, 10 Barr, 133; Chambers vs. Yarnall, 3 H. 265. Where the property is sold at sheriff's sale before the expiration of the time allowed by law for filing the lien, the claim may then be made upon the fund, with the same effect as it could be made against the building if the claim had been entered of record before its sale: Yearsley vs. Flanigen, 10 H. 489. This disposes of the only objection made to the payment of this lien, in the proceedings before the auditor. T. P. Trayer, Esq., the assignee in bankruptcy of F. A. Burr, excepts, because the auditor refused to charge Mr. Schrader with the difference between his bid at the first sale, and the amount at which the property was knocked down to him at the second sale. The legal liability of Mr. Schrader must be ascertained by a different proceeding, and we think the auditor very properly refused to entertain the proposition. That distribution made by the auditor which includes the payment of the mechanics' lien of Pott & Vastine is confirmed. and all exceptions in conflict with this decision are hereby overruled. Supreme Court of Pennsylvania. JUSTICE 23. ROWAND. A person who is not licensed to act as a broker may, nevertheless, maintain an action for a commission earned in the sale of arms. The act of assembly imposes a penalty of five hundred dollars for acting as a broker without a license, but this fact will not prevent a party from recovering in a particular case, wherein he has acted as an agent for another, on a contract for a commission for services rendered, in effecting the sale of a lot of arms. (Certificate from Nisi Príus, No. 174, of January Term, 1863.) This was an action on the case, to recover a commission alleged to have been earned by the plaintiff in effecting the sale of a lot of arms to the United States government. The defendants, P. S. Justice & Co., were manufacturing and selling arms, and the plaintiff charged that he had been employed by them, as agent, to effect a sale of a lot of arms as aforesaid; and that they had agreed to pay him a commission of five per cent. for his services. That he did sell the arms, and had earned his commission, but the defendants refused to pay the same. He therefore brought suit to recover, setting forth substantially the above facts. in a special count; also adding the common count. To this the defendants filed the ordinary short pleas, and a special plea, setting forth that plaintiff had paid no license as a broker, and was not authorized by law to act as such, and could not recover a commission for such services, the same being exercised contrary to law. On the trial of the cause, the learned judge (Thompson, C. J.) reserved the point of law raised by the defendants' special plea, and the jury found a verdict for the plaintiff for $1441.81. Subsequently, on the 4th day of April, 1868, the court ordered judgment to be entered on the verdict in favor of the plaintiff on the point reserved. (See App. Docket, page 416.) Whereupon the defendants caused the case to be certified into the Court in Banc. January 14, 1869, Thompson, C. J., delivered the opinion of the court, affirming the judgment at Nisi Prius. Holding that though the plaintiff was not licensed to act as a broker, he might still maintain an action for the commission alleged to have been earned by him under his contract with the defendants. That even if he had made himself liable to the penalty of five hundred dollars imposed by the act of assembly, the fact could not be made available here by the defendants to prevent a recovery on plaintiff's agreement with them. [The District Court seem to have arrived at a different conclusion: see Costello vs. Goldbeck, Briggs, J., 30 Legal Intelligencer, 108; but in the Supreme Court case there seems to have been a special contract.] Samuel G. Thompson and George Bull, Esqs., for the plaintiff. A. S. Letchworth, Esq., for defendants. NOTE. See also Shepler vs. Scott, 4 Norris, 329. INDEX. ACCOUNT. An account rendered becomes an account stated if not objected to in a reason- ACTION. See TRESPASS. REPLEVIN. MALICIOUS PROSECUTION. ARBITRATION. 2. An action for infringement of a patent survives against an administrator. 3. When several different forms of action will lie in any particular case, as as- 4. When property has been wrongfully taken and converted, and the owner 5. If trespass be brought in such a case, the plaintiff may recover as well the 6. But, if out of the three forms of action thus open to him, the plaintiff selects 7. In an action of trover, the quantum of damages, according to the rules of law, 8. The legal remedy for disturbance of a right of way is an action of trespass 9. Where several remedies are given, the party entitled to them may select that ACTS OF ASSEMBLY, considered and construed. LANDLORD AND TENANT. Ins. Co. vs. De Coursey, 88. 20. JUSTICES. Long vs. Shelly, 506. 29. 1821, March 15. 1832, 15. 1839, July 2. 1840, April 14. 1841, May 4. 1845, April 26. 1846, March 11. BOARD OF HEALTH. Eddy vs. Board of Health, 94. TURNPIKE. Simons vs. Turnpike, 101. 40 625 |