15 F. 778 -

778

FEDERAL BEPOBTER.

ing to indicate ,that he expected the corn to be shipped. Upon all of the. evidence, I am of the opinion, and therefore find the fact to be, that the parties did not intend the actual delivery of the corn contracted for, but did intend to speculate upon the future market, and to settle the profit or loss of the defendant upon the baBis of the prices of the grain on the thirty-first of May, 1881, as compared with the price at which defendant contracted to sell. Such being the fact, the law is well settled that the plaintiff cannot recover. Melchertv. Am. Un. Tel. 00. 11 FED. REP; 193; Gregory v. Wendell, 39 Mich. 337; Pickering v. Oease, 79 Ill. 328j!Barnard v. Backhau8, 8upra. Judgment for defendant.

HARDESTY (OwtlUlt Court,

v.

PYLE.

w: JJ. 'Penn8yZfJlJm·a.

STOCK.

March 21, 1883.)

L RAILnoAD

Rolling stock dQes not become affixed to the railroad upon which it is placed. Therefore, a mortgage, although in terms covering beacquired rolling stock, does oot. attach' to the rolling stock of a third person subsequently placcd 9n the road under a contract with a company then operating it. . .

2.

EXECUTION-·LEVY UNDER

A sheriff's return to a writ of :fi. !a......'·'And I have, therefore, by virtue of the same written writ, levied upon all the right, title, interest, and claim of the S. & M. Hallroad Company, of, in,.lI:nd to the i::l. & M. Railroad,. in Somerset county, a,nd state of Pennsylvania, 'and upon all the property, real, personal, and mixed, including locomotive, caril, .. .. :II' now in the regular use of the said B. & M. Ratlroad Company, in the conductihg of its business as a cara se:zure of the and cars, and in an action of trespass against the sheriff, is conclusive evidence against him of sueh seizure.

Wnw.

3.

SAME-AGREEMEN1' AS TO ROLJ,ING STOCK SEIZED.

.

The attorneys at law of the plaintiff, (the owner Of tue roIling stock,) In that capacity meJ;ely, and without special authority so to do, signed an agreement as the basis of a consentable decree, in an equity suit, to which the .plaintiff was a stranger, and in Which he had no interest, ";lrich inter alia, for the withdl'awa]Jdf exceptions to the sheriff's sale, filed by the railroad company, . (the defendant'in lhe execution,' and the confirmation of the sale, and the retnI'll. of the to the railroad, al)d its delivery to the sheriff's vendee; the preamhle of the agreement reciting, I. Whereas, it is ,desirable the " relative fights 'of all parties' interested or concerned should 'be determined at lllW anli the. sixth clause of the· paper declaring, "The rights of R. 13. Hal'.desty to any title or claim to. tllt' rolling stock, if he has any legal r'ght, according tolaw. This agreement is not to prejudice anr righthe'thay, and whiCh can be, legallyestahlished to the rolling stock." The: shul'ifl.was, not a party to the eq uity:suit or the agreemellto Beld, that the

HARDESTY'V.PtLm.

77lJ

agreement must be construed as reserving to the plaintiff an his legalremediaS'. , and did not operate as an estoppel to bar his action of trespass against the sheriff.

Sur motion on the part of the defendant for a new trial. Wm. M. Hall and Geo. W.Guthrie, for motion. H. W. Wier, for plaintiff. Before MoKENNAN and ,AOHESON, JJ. ACHESON, J. 1. We cannot give our assent to the proposition that the rolling stock in question was bound by the first mortgage of the first corporation." That company never owned any rolling stock, and none passed to the purchaser of the railroad at the sale under' the company's second mortgage. The locomotive a.nd cars were acquired after that sale, and after the incorporation of the second company. Moreover, the jury have found that they were not the property of the second company, but were purchased and owned by Coffroth, Uhl & Sanner, and that their title became vested in the plaintiff before the trespass complained of. It is true the first mortgage in terms covered the "future-to-be-acquired" rolling stock of the company, and, doubtless, it would have attached. to engirres, and cars subsequently acquired by the mortgagor arid pla(jedupon the road. But. none of the cases relied on by the learned counsel gives countenance to the notion that such mortgage grasps the, rolling stock of third persons, temporarily used upon the railroa;d, under a contract between them and a company subsequently operating the road. t;uch rolling stock does not become affixed to and I), part of the railroad. lJ. S. v. New Orleans R. R. 12' Wall. 362:' It, remains "lOose property, and susceptible of separate ownership." Id. 865. Speaking of the rights of railroad mortgagees in aft'er-acquired cars, Chief Justice WAITE, in Fosdick v. Schall, 99 U. S. 251, said: "Tbe take just such an interest in ,the property as the mortgagor acquired; no more, .no less." Here the mortgagor never had any interest in the locomotive and cars, and the verdict establishes that at the time of the sheriff's levy they were the individual personal property of the plaintiff. 2. But -the defendant fD.sists that it wafVerrot-to hold that the sheriff's return to the writ of fl.. fa. imported a, of tive and cars. :The return, dernand,alld'non-paynient, proceeds in the' words
.. And I have, therefore, by vjr;j;ue of the same levied upon all thertght, title, interest, and claim of the Somerset & Mineral Point Railroad Company of, in, and to the Somerset &> Mineral Point'RlI.i1r()ad, in Somerset

'180
county, and state of Pensylvania, and upon all the property, real, personal, and mixed, including locomotive, cars, hand-cars, tools, engine-houses, depot, water-station, siding, and switches now in the regular use of the said Somer"et & Mineral Point Railroad Company in the conducting of its business as a carirer, and the rights, franchises, privileges, and rights of way of said company incident, appurtenant, or in any wise appertaining or connected therewith. Taken in execution as the property of the Somerset & Mineral Point Hailroad Company at the suit of John Hoth," etc.

This return is drawn with much precision, and, we think, admits of but one interpretation. While the seizure was of the right, title, and interest of the defendant in the execution in and to the described raiiroad, as respects the "locomotiye, cars," etc., "in the regular use" of the defendant "in the conducting of its business as a carl'ier," the levy, by very exact language, .was UP0l). the things themselves, and not mertqly upon the defendant's interest therein. If, as is now claimed, the intention was simply to levy upon the right, title, and interest of the defendant company in the railroad and its appurtenances, together with the corporate franchises, as an entirety, different phraseology would have been employed. We do not see how, under the terms of the levy, the plaintiff could. have removed the . . locomotive and cars without defying the authority of the sheriff and becoming a trespasser against him. Welsh v. Bell" 32 Pa, St. 12 Our construction of the return is consistent with, and is fully justified by, the conduct of the sheriff. By the uncontradicted evidence it was shown that after the levy and before his sale he locked the wheels of the cars. , It is idle to say that. thiswas but to prevent the cars being run off in violation of an injunction in another proceeiling. The sheriff ,had'no process in his hands, other than the writ of ji. jCl., which ' , gave him any color of authority to touch the cars. If the, construction given to, the levy was correct the charge to the jury astq its effect was undoubte,dly accurate. A levy by the sheriff UpoI;J, the a stranger to tha execution is the exercise qf domina trespass, though there be no ion over theOl sufficient actual takin,g or touchingof the go.ods·. Welshv. Bell, supr,a;, Wintri.nghqln v :r, ,.00,(.736; v. 13aker, 1 Mete. 21.' And the sheriff's retu.rn that he levied is conclusive evidence agl;1.inst hiIUJpat and took the goods int'o,:bis possession. v. Bed, snp'ra. 'So,' also, in Paxton';;. Stecke'l, 2 Pili. St. it held. the sheriff's return "attached 24 pieces of iron,etc., in the kiohOf J. Stettler," 'subjected an action ofhespass,a:nd evidence. against him'. . " . . . .' ' . . . " ,,' " , . .. . '
, .

he

to

'

'

.,)

HARDESTY":"'. PYLE.

781

It is, urged that constructive seizure is predicable oniy of a lawful execution, and t4at there can be no suoh where the writ or levy is void.' But if this be conceded we do not see how it helps the defendant. There is absolutely no foundation for the insinuation that the execution here was unlawful. It was the ordinary writ of fieri facias against a oorporation. The oounsel assume that under the Pennsylvania statutes levy upon the railroad and franchises of a corporation oannotbe made under such a writ, but only upon an alias or pluries writ after a return of nulla bona. We do not know that this has been authoritatively decided, and do not feel called on to express any opinion as to what is the correct praotice. We incline to think that such levy made on the firstfi./a. would, at the most, be but an irregularity, and by no means a nullity. But however this may be, the writ here unquestionably authorized the sheriff to levy on personal property, which he proceeded to is that do, as his return clearly shows; 'and the plaintiff's the levy embraced his goods a'nd chattels;' :Surely it is a poor answer for the sheriff to make that his levy, as flo whole, was broaider than his writ warranted. 3. The defendant contends that the court erred 'in refusing to charge that the agreement of January 8, 1879, estopped the plaintiff from suing the sheriff in trespass. .But.if the wbieh the defendant· claim.s for that instrument be the true one, it mightweU be doubted whether Messrs. Rupple: and Hay, in their mere oapaoity of attorneys, could bind the plaintiff by their signature. , PI/rker, 7 Oranch, 436; Gable v. Hain; 1 PElD. &W. 264; 'WilUsv. Willis,12 Pa. St. 15'9; :Stokely v. RobinsOn, 34Pa. St.3t!>. The agreemen't'did not'inanywise benefit the plaIntiff,' and 'wasinade in an equity suit (as 'the basis' of a decree therein) to which he was 'an entire stranger, and in which he' had no interest.', he any concern with the rule for allattachmentfot contempt,'the pendency of which was theoccasion'of the agreement. 'ant (the sheriff) was no partytotbat snit or to the agreement. .'It IS then very questionable under the decisions: whether Mesllrt!; Rttpple 'and Ray, without special' allthorityso to or destroy the plaintiff's right 6f the defendant. But the' paper pl'ofessto do M,' and we'th:inItJ;it,i$Jt1()t fairly open to a 'construction whi'Ch would prbdtroe [email protected]:;TlYe parties tothe'agreement were not dealing the plaintiff and the defendant. The main purpose in view was to pnrge-a contempt of court and secure a return of the locomotive which

a

'had beep. run off by ,Newmeyer and McCaleb nnder a claim of right, butin :violation of an injunction. ,The sixth clause of the agreement deolares: "The :rights of R. S. Hardesty to any title or claim to the rolling stook, if he has any legal right, s1;1all be determined acoording .to law. Thisagree·ment is not to prejudioe any right he lIIay have and, whioh can belegalJy established to the rolling stook." The whole 'papal' is to be read in the of t4e, conoluding paragraph of the preamble, viz.: "And, wherea.s, it js desirable that the relative rights all parties interested or ooncerned ,should, be determined at law." ,ThiB'furnishes the key to the true intention of the parties. A conthe equity suit and all parties ,sentable decree was to ,bEl entered left to their leg/1.1 reD;ledies. In our opinion it would be a perversion of the agreement to hold that it bars the plaintiff's aotion against the sheriff for his trespass. 4. Since the hearing of this motion I have oarefully read the testi· ;monybearing on the of.4amltges to sec) whether there is gQOl! reasOn for the allegation that the, verdiot is excessive under the ·,evidence. Upon this branch. of the 9ase the plaintiff e:x;amined .six witnesses and the defendant two. The two witnesses on the part of [email protected],iff"who· concerning the locomotive, not only had perf!1onalk,:!Qwledge 9f .its condition, but were machinists who for many years had' employed in ,the building of locomotives. They aswere th,e defendant's were quite ,competent tp ·witnesses, so far as, aiPpeared.Deducting from the verdiot the inter·est, inolu.ded therein; would give $11,000 as the value the jury plaoed ,qnthe, rolling stock. As it consisted of a -locomotive, one passenger lill),!, a baggage car, "nd two cars, the :Ylliluation is not apparand we have been furnished with no new evidence JIQ it to be excessive. It 'is a, lllistake to say that in respect to theda.Qla.ges the jury blindly followed the plaintiff's witnesses. The · verdictwollid have been larger by $2,000 or $8,000 if the jury had aqopted minimum figures of those witnesses. In point of ,intelligence *hejury was rather apove :itb.;e average, and weare not convinoed that tlle verdiqt .did the defendant injustice. WJ;latbas been said .covers the grollDds fora new trialwhicb counsel most,d.¥lcussed. We do not. think the other I:easons assigned call for a;epj.ar)}. After a careful cOllsideration of the whole.JRf!e, we are, of that the motionf.or new trial abould be overruled, and judgment entered on the verdict. And it is so ordtlred.

THIRD !'OAT. BANK OE' SYRACUSE

v.

TOWN' OF SENECA. FALLS.

788,

THIRD NATIONAL BANK OF SYRACUSE

v.

TOWN OF SENECAFALLB.

(CirCUit (k,urt, N. D. New York.

1883,).

Hiscock, GWord x Doherty and George F. for plaintiff. Patrick J. Rogers, Curnelius E. Stephens, aiid James L. A'1lgle, for defendant. . . (". . COXE, J. This action is brought-upon interest' warrants originally attached to bonds alleged to have been issued by the is urged by the defendant that the suit should be disIhissed pursuant to the fifth section of the act of. March, 1875,dnt4e ground thaHhe demands in suit were improperly and collusively transferred for tha purpose of creating a. case within the jurisdiction oftha;col,trk This question should not be' decided upon conjectme;' the court isrtot >per... mitted to speculate as to the nature ofthetransactiQll bet'woonvendor and vendee. If suspicion were allowed to place of 'Proof; ,it is not unlikely that aconcillsion falVura!.l1e to' defendant'.athebry: