proper to sentence the defendant to abate, the
Court may direct the sheriff to do so without thus
sentencing the defendant.

Taggart v. Commonwealth, 9 Harris, 530.
Commonwealth v. Barclay, 1 Casey, 503.

that we see no reason why the learned Court below should have arrived at a different conclusion. Writ refused.

Opinion by PAXson, J.

May 21, 1888. THE COURT. This was a petition by I. P. Wanger, Esq., District Attor- Jan. '88, 308. ney of Montgomery County, praying for a writ of mandamus to the Judges of the Court of Quarter Sessions of Montgomery County, to enforce the judgment and sentence of the said Court in the above stated case by an order directed to the sheriff of said county, requiring him forthwith to abate the nuisance complained of at the costs of the defendant.

The defendant had been convicted in the Court below of maintaining a public nuisance, and had been sentenced to pay a fine, and to abate the nuisance. The nuisance consisted of the storage of a large quantity of gunpowder and dynamite in a building near a public highway, to the damage of the neighbors and travelling public. It was not the building that was the nuisance; it was the storage of the above-named explosives and dangerous substances therein. Upon proceeding to enforce the sentence, the defendant showed that he was not the owner of the premises; that he was merely the agent at one time of the parties who used the building as a storehouse for powder, and that since the trial he was no longer such agent, and had no control over the building or its contents. The Court below held that the defendant could not be required to abate a nuisance over which he has no control, and that the sheriff could not be required to remove it inasmuch as the ground upon which he acts in such cases is the refusal of the defendant to do what he ought to have done.

It will appear, from what has been said, that the Court below has acted upon the application of the District Attorney, and refused it. If the Court had declined to act there might have been some ground for the application for a mandamus. That the writ will lie from this Court to a lower Court to compel the performance of a duty is settled law. Thus if a Judge unreasonably delay judgment in a particular case, he may be compelled to do so by mandamus. But it will not lie to compel him to give judgment in a particular way; it will only require him to act. Hence, when the Judge has acted, mandamus will not lie to reverse his action. The Judge below has acted in the matter referred to; he has refused to order the sheriff to proceed to abate the nuisance, for reasons which he regards as legal and satisfactory, and we cannot reverse his decision upon a writ of mandamus, even were we satisfied that it is erroneous. We are free to say, however,

Klein's Appeal.

H. S. P. N.

March 30, 1888.

Bill in equity-Bonds pledged as collateral by bailee What complainant must show in order to recover the same.

In order to entitle a complainant in a bill in equity to recover bonds which he alleged had been transferred by his bailee to defendant as collateral security, it is incumbent upon him to identify the bonds which he alleges were so hypothecated and in the absence of such identification he cannot recover.

Appeal from a decree of Common Pleas No. 4, of Philadelphia County.

Bill in equity, by Charles Klein and Lizzie Mindill against William F. Harrity, assignee of Ladner Brothers, and the Commercial National Bank, to recover from the latter $14,000 par value of bonds of the Southern Maryland Railroad Company.

The bill averred: That the plaintiff, Charles Klein, and the said Lizzie Mindill, were the owners of first mortgage bonds of the Southern Maryland Railroad, a corporation existing under and by virtue of the laws of Maryland, the said Klein being the owner of $13,500 of said bonds, and the said Lizzie Mindill $500 of said bonds; that said bonds were issued under a mortgage dated May 1, 1879, and that said corporation, being desirous to cancel said mortgage and bonds created a new mortgage, dated January 1, 1881, and issued new bonds thereunder, to be exchanged for the former bonds; that said plaintiffs deposited their bonds under the former mortgage with the said Ladner Brothers, who were bankers and brokers at the time, for the purpose of having them exchanged for the new bonds; that said Ladner Brothers received said bonds under the mortgage of January 1, 1881, for said plaintiffs, and after having so received them, fraudulently and without authority from plaintiffs deposited them with the Commercial National Bank, who are not purchasers for value, and who now refuse to deliver them to the plaintiffs, although requested to do so; that said Ladner Brothers, on the twenty-fifth day of August, 1884, made a general assignment for the benefit of creditors. And the bill prays for an injunction restraining the defendants from in any way disposing of or interfering with said bonds, and that said Commercial National Bank be ordered and directed

to deliver said bonds to the amount of $14,000 | that a part of the bonds pledged by the Ladners to said plaintiffs, and for general relief. with the bank for loans which they received, The answer, in effect, averred that the Com- were pledged as an additional security for antemercial National Bank on the fifth day of Sep-cedent loans, instead of security for continued tember, 1883, loaned to Ladner Brothers, $18,- subsequent loans, it is impossible to say from any 000, upon collaterals, in which were included evidence in the cause that those particular bonds $11,000 of the Southern Maryland Railroad had ever belonged to either of the plaintiffs." Company; that on the fourth day of April, 1884, $4000 of said loan was paid off, and on the same day the further sum of $1000 was paid off, leaving a balance of $13,000 still remaining, which amount was carried, with an additional deposit of $5000 of the bonds of said company, until July 22, 1884, when it was consolidated with the other loans in a demand note for $32,500, which still remains unpaid, and the answer admits that said Ladner Brothers made a general assignment for the benefit of creditors as averred in the bill.

The case was referred to John H. Seltzer, Esq., as Master, who found, inter alia, that the Ladner Bros., prior to their failure, delivered the bonds in question to the defendant bank as collateral for debts, which they then owed the bank, that the possession of the bonds in suit is not denied by the bank, the answer filed admits that they have the bonds, and accordingly reported that complainants were entitled to a decree in accordance with their bill.

A decree was accordingly entered, dismissing the bill with costs. Whereupon this appeal was taken, the action of the Court being assigned as error.

J. M. Moyer, for appellants.

John G. Johnson (James W. Paul with him), for appellees.

May 21, 1888. THE COURT. There is no question of law disputed in this case. The appellees concede, that if the bonds which they received from the Ladner Brothers were the property of the appellants, and were received and applied as collateral security for an antecedent debt, the appellants have a right to a decree. The whole contention is one of fact, which the Master has determined in favor of the appellants. The learned Judge of the Court below, however, upon the exceptions filed, reversed the Master's finding, and entered a decree in favor of the appellees; and, upon a full examination of the evidence, we are clearly of opinion that the Court was right.

To these findings of fact exceptions were filed by the bank, which the Court, THAYER, P. J., There is evidence to show that the complainsustained, filing, inter alia, the following opinion: ants were the owners of certain bonds of the "In truth there was no competent evidence Southern Maryland Railway Company, amountwhatever that the bonds of the Southern Mary-ing, in the aggregate, to $14,000; that in land Railroad, which the Ladners pledged with December 1880, they left these bonds with the the bank for loans which they received from the bank, were bonds belonging either to Klein or Lizzie Mindill. This part of the plaintiffs' case was therefore totally defective in proofs. The Master reports that the answer of the bank admits that they received the bonds from the Ladners.' If this is intended to convey the idea that the answer admits that the bonds which the defendants received from the Ladners as security for loans which they made to them, were bonds which had belonged to either of the plaintiffs, it is a misapprehension of the facts. The answer

contains no such admission.

"In like manner the finding of the Master 'that the Ladners delivered the bonds to the defendants, who kept possession of the same on account of an overdue indebtedness of Ladner Brothers,' is not sustained by any fair reading of the testimony. Upon that point the plaintiffs examined but a single witness, Mr. Graham, the cashier of the bank. Without going through his testimony in detail, it it is sufficient to say that we have been unable to find in it any satisfactory support for the Master's finding. Even if it were conceded that an inference could be fairly drawn from any portion of Mr. Graham's testimony,

Ladner Brothers, who were brokers, with instruction to have them exchanged for bonds of a later issue; that the exchange was effected, and the new bonds, for a time, were suffered to remain in the custody of Ladner Brothers. There is evidence, also, to show that the Ladner Brothers on the 5th September, 1883, delivered certain bonds of the Southern Maryland Railway Company, to the amount of $10,000 to the Commercial National Bank as collateral security for a loan, and that some time afterwards, Ladner Brothers left with the same bank $6000 of similar bonds for a like purpose. But there is no evidence whatever that the bonds which were received by Ladner Brothers, in exchange for those left with them by the complainants in December, 1880, were the same bonds which the Ladner Brothers deposited with the Commercial Bank three years later; and in the absence of all evidence of identification, it is impossible of course for the complainants to recover.

Moreover, as the testimony offered by the complainants is wholly to the effect that the $10,000 of bonds delivered to the Commercial Bank on the 5th September, 1883, were with other securities deposited as collateral security

Edward Campbell, for plaintiff in error, cited-
Balsbaugh v. Frazer, 19 Pa. 99.
Shoemaker v. Stiles, 102 Id. 554.

Dubois's Appeal, 38 Id. 231.

McKelvy and Sterrett's Appeal, 15 WEEKLY NOTES, 564.

for a loan of $18,000, on that day made, and tiff. Kennedy then took this writ, and assigned were received by the Commercial Bank, without for error the entry of the decree. notice of or defect in the title of Ladners, it is plain that even if proof of identification had been made, there could be no recovery as to this portion of the bonds until that debt is discharged, and it is shown that the $13,000 of the specific loan yet remains unpaid. The only witness examined upon the question was Edwin P. Graham, who was the appellants' witness. His testimony is plain and positive on this point; he is uncontradicted, and his veracity is not called in question. In view of what has been said, it is unnecessary for us to consider the other questions raised in the cause by the appellants.

The decree of the Common Pleas is affirmed, and the appeal dismissed at the cost of the appellants.

Opinion by CLARK, J.

Lodge v. Gaunt, 16 Id. 438.

G. W. K. Minor, for defendant in error.

May 21, 1888. THE COURT. This is a very small case, so small that it would have been better for all parties concerned had they kept it out of this Court. The amount in controversy is but ten dollars, being a sum retained by the respondent as a fee for collecting a sum of money under the following circumstances: The respondent had entered his appearance as attorney for the plaintiff in a judgment, Walker v. Huntley, No. 191,

TRUNKEY, STERRETT, and GREEN, JJ., Sept. T., 1882, in the Common Pleas of Fayette absent.

Jan. '88, 270.

W. M. S., Jr.

May 10, 1888.

In re Robert P. Kennedy. Attorney and client-Relations between-Rule upon attorney to pay over money belonging to client- When not granted.

It is only by virtue of the relation of attorney and client that the Court can interfere in a summary manner to compel the payment of money of the client in the hands of the attorney; hence, if in an application by the client to compel payment, this relationship be denied, the Court has no jurisdiction.

Where, in such cases, an issue of fact is fairly raised between the attorney and his client, the former is entitled to a trial by jury.

Where it appears that an attorney has retained from funds of the client in his hands, in good faith, a sum believed not to be more than an honest compensation for his services, a rule taken by the client to obtain said sum will be dismissed, and the latter remitted to a jury trial.

Balsbaugh v. Frazer, 19 Pa. 95, followed.

Error to the Common Pleas of Fayette County.

Sur rule upon Robert P. Kennedy, a member of the bar of Fayette County, to pay over money of the plaintiff's collected by him in the case of Elizabeth A. Walker against Asa Huntley. The petition was filed by the guardian of Mrs. Walker's minor child.

The facts are stated in the opinion of the Supreme Court, infra. The Court below made the rule absolute, and directed Mr. Kennedy to pay over to the petitioner, or his attorney, $10, the amount in question; and ordered that Kennedy's name be erased as one of the attorneys for plain

County. The interest on this judgment, $60 per annum, was paid to him for about four years, and all of it except the last payment of $60 was paid over to the party entitled thereto. From the last sum he claimed to deduct the sum of $10 as a fee and tendered the petitioner the balance thereof, $50. This the latter declined to receive and presented his petition to the Court below, alleging the refusal to pay, and averring that respondent was never employed by him as an attorney and had no authority to collect the interest money in question. The respondent answered the petition, alleging that he was employed as counsel and had the right to receive the money in that capacity. The Court below made an order requiring the respondent to pay over the money.

If the allegation of the petitioner is true, that there was no relation of attorney and client between them, it is very plain that the petitioner is out of Court.

that the Court has any jurisdiction to interfere in It is only by virtue of such relation a summary manner. The Court might as well make an order upon an attorney to pay his tradesmen's bills.

In Balsbaugh v. Frazer (19 Pa. 95) the rule was thus laid down in respect to the right of an attorney to retain his fees out of moneys in his hands: "If the client is dissatisfied with the sum retained he may either bring suit against the attorney or take a rule upon him. In the latter case the Court will compel immediate justice or inflict summary punishment upon the attorney if the sum be such as to show a fraudulent intent. But if the answer to the rule convinces the Court that it was held back in good faith and believed not to be more than an honest compensation, the rule will be dismissed and the client remitted to a jury trial." And we may add to this that a man does not lose his right to trial by jury because he is an attorney-at-law. Where an issue

of fact is fairly raised between himself and his | Upon March 28, 1883, a mechanic's lien was filed client he is as much entitled to such trial as any other citizen.

In the case in hand the only disputed fact was whether the respondent was of counsel for the petitioner. The latter, as before stated, denied the existence of any such relation. The Court below decided this question of fact against the respondent, ordered the money to be paid over by him, and that his name be stricken from the record of the judgment.

by Miller & Co., who claimed a balance due them from Childs, Willis & Loomis for about $1311.21, "for material furnished within six months last past for and about the erection and construction of (eleven) several buildings hereinafter mentioned, and against the same and the ground covered by said buildings, and so much other ground immediately adjacent thereto, and belonging to the above-named Childs, Willis & Loomis as may be necessary for the ordinary and useful purposes of the same.'

In any view of the case the order must be reversed. If we concede the right of the Court to "The said buildings are located on that certain find the disputed fact of the professional relation piece, parcel, or lot of ground situated in Kendall the facts as found put the petitioner out of Court. Borough, etc. ... containing 4 and 33-100 On the other hand, if the relation of attorney and acres of land, more or less. Each of said buildclient existed, the fee charged was so moderate that ings being a one-story frame building. The no reasonable man would think of disputing it. filter-house being twenty-eight by forty-two feet That some relation of attorney and client ex-in size. Boiler-house being twenty-eight by isted between these parties appears from the state-thirty-eight feet in size. Barrel-house being sixment of the petitioner. And there is some implication of such a relation in the fact that the respondent had collected the interest on this judgment for some years and paid it over to the petitioner.

The order is reversed at the cost of the petitioner below.

Opinion by PAXSON, J.

GORDON, C. J., and TRUNKEY, J., absent.

Jan. '88, 347.

Short v. Miller & Co.

H. C. O.

teen by forty feet in size. One tank-house being twenty-four by forty feet in size. One tank-house twenty by sixty feet in size, and one tank-house twenty by forty feet in size. Pump-house twelve by sixteen feet in size. Tool-house sixteen by twenty feet in size. Agitating-house twenty by twenty feet in size.

Office fourteen by twenty

feet in size, and stable sixteen by twenty feet in size. All said buildings going to make up the buildings of an oil refinery of said Childs, Willis & Loomis."

On July 20, 1883, Alfred Short, the assignee May 3, 1888. of Childs, Willis & Loomis, sold the property upon which the mechanic's lien was filed by order of the Court, thus discharging all liens; and an

Mechanic's lien-What property subject to-Act auditor was appointed to distribute the money

June 16, 1836.

accruing from the sale. Sampson Short, a judgment lien creditor of Childs, Willis & Loomis, denied the right of Miller & Co. to share in the distribution of the money accruing from the sale.

The Court directed a feigned issued to try this question. On the trial, before OLMSTED, P. J., the defendant contended that the lumber alleged to have been sold was not sold to be used in the erection or construction of any building to be erected upon the land described in the claim; that the said lien was not filed against any building described in said claim, but simply against an oil refinery, which is not a building, but consists of iron stills, condensers, agitators, pumps, pipes, fittings, receiving and storage tanks, which are not buildings and form no part of a building; and that an oil refinery is not embraced or included within the provisions of the Act of June 16, 1836, or its supplements, and that therefore Miller & Co. had no claim or lien upon the money in Court.

The defendant submitted, inter alia, the following point: "(1) That the property against which the alleged lien is filed is not the subject

of a mechanic's lien, and that the claim of the | The buildings appear to have been eleven in numplaintiff cannot be sustained." Answer. We ber, and are sufficiently described, and the size answer this point in the negative. (Third assign- and character thereof given. They consisted of a ment of error.) boiler-house, filter-house, barrel-house, several Verdict for the plaintiffs and judgment thereon; tank-houses, pump-house, tool-house, etc. etc., whereupon the defendant took this writ, assigning for error, inter alia, the answer of the Court to his point as above.

Byron D. Hamlin (John Forrest with him), structures, but they were permanent and suited for defendants in error.