right on, and sold under all the writs. The auditor understands the law to be, if the conduct or words of the plaintiff show that his object was simply to secure a lien, and the defendant was to have rights and privileges inconsistent with the regular and legal execution of the writs, such instructions, as against other executions, were the same, in effect, as a formal stay of the writ, and as irrevocably and with like force inured to the benefit of the other creditors. Our supreme court has adhered strictly to the rule requiring the utmost good faith in the use of execution process. And while in Brown's Appeal, 26 Pa. St. 490, and Landis v. Evans, 113 Pa. St. 332, 6 Atl. Rep. 908, contested executions were sustained, it was on the ground that there was no evidence of improper purpose in the words or acts of the plaintiffs. To sustain the Larzelere Company's execution would be against the spirit of the authorities; and the auditor, therefore, feels compelled to postpone it in distributing the fund before him.”

The Larzelere Company excepted to the auditor's action in rejecting evidence explanatory of the purpose of the letter, in finding that there was either legal or actual fraud in the company's declarations or conduct, and in not distributing enough of the fund to the company to pay its claim, but distributing it among subsequent execution creditors. The court dismissed the exceptions to the report, and confirmed it. This action is assigned as error. N. H. Larzelere, Richard C. Dale, and Samuel Dickson, for appellant.

In Landis v. Evans, 113 Pa. St. 332, 6 Atl. Rep. 908, the first execution was placed in the sheriff's hands February 26th. Plaintiff told the sheriff's deputy not to go to defendant's house that day, as the house was torn up, and next morning told him not to go up till the afternoon, as the ladies were cleaning things up. In the afternoon, before the sheriff levied, a second writ came into his hands, and the levy was made that afternoon under both writs. The fund was awarded to the first execution; Mr. Justice STERRETT saying: "It cannot be doubted that what was thus said and suggested by the plaintiff in the execution was prompted by a desire to accommodate the family of the defendant in the execution, and cannot be fairly construed as evidence of a design on his part to merely obtain a lien by virtue of his execution, and hold the same as security. The authorities are abundant that when the primary design of a plaintiff in issuing an execution is to obtain a lien upon the defendant's personal property, and not to sell the same except in the contingency of a subsequent execution being issued, the lien of the execution will be postponed. The facts recited in the case do not warrant any such conclusion; on the contrary, they show nothing more than a disposition on the part of the plaintiff to treat the family of the defendant in the execution with due consideration, by not subjecting them to unnecessary inconvenience in any manTo continue the lien of an execution, it is not necessary that the personal property levied on should be taken into actual possession. It is sufficient if it be forthcoming to answer the exigencies of the writ. The leaving the goods, therefore, in the possession of the defendant by the permission of the plaintiff will not divest the lien of the execution unless there be fraud. McGinnis v. Prieson, 85 Pa. St. 111. The element of fraudulent collusion with the debtor is shown in Dorrance v. Com., 13 Pa. St. 160, and Keyser's Appeal, Id. 409. In Brown's Appeal, 26 Pa. St. 490, the jury found specially that the writ was issued to prevent other creditors from levying, but, notwithstanding, the supreme court held that the lien was not lost, if plaintiff did not interfere with the sheriff in the performance of his duty, or give any directions inconsistent with the command in the writ to have the money at the return-day before the court. The cases cited by the auditor do not apply. In Weir v. Hale, 3 Watts & S. 285, there was proof of an express agreement between the execution creditor and the defendant that no sale was to take place unless other executions came in, and that the proceedings under the

ner.

writ were taken only to force a compromise with the general creditors, or to give defendant time to adjust his affairs. In Com. v. Stremback, 3 Rawle, 341, the plaintiff instructed the sheriff to hold a levy without proceeding to sale until further orders, and the levy stood dormant for 13 months. In Eberle v. Mayer, 1 Rawle, 366, an execution was placed in the sheriff's hands on June 19th, and held over defendant's property without sale until October 25th, when the creditor directed the sheriff to stay all proceedings, at his risk, until further directions. On November 3d a second execution came in, and it was held that it took precedence of the first. In Truitt v. Ludwig, 25 Pa. St. 146, the first execution creditor directed a stay of execution, and accepted a bond with security from defendant for the debt. The goods were left in the possession of defendant from January until May, when a second execution came in. In Kauffelt's Appeal, 9 Watts, 334, the sheriff was instructed not to proceed further on his writ; to put no more costs upon it. This was held equivalent to a formal stay. In Dorrance v. Com., 13 Pa. St. 160, an execution creditor, who had entered into negotiations with a defendant for a settlement of the debt, whereby the orderly proceedings were interrupted, was held to have no claim against the sheriff for the loss of the goods. In Freeburger's Appeal, 40 Pa. St. 244, an execution was placed in the sheriff's hands on July 15th, and the sheriff then instructed not to proceed on the writ until further orders. A second execution came in on August 18th. It was held that the first execution had no lien as against the second. In Stern's Appeal, 64 Pa. St. 447, a judgment creditor issued an execution to June term, under which nothing was done; an alias to September term, under which nothing was done; and on November 9th a pluries to December term, under which no levy was made by the sheriff under orders given by the plaintiff. On Sunday, December 6th, the plaintiff told the sheriff to make a levy on the following day. Before the levy was made, a second execution came in. The court held that an instruction given to the sheriff on Sunday was void, and that, as the execution had been held for one month without levy under instructions, no lien upon the goods had attached. In Pary's Appeal, 41 Pa. St. 273, the sheriff, down to the time of sale, permitted defendant to remain in undisturbed control of his property up to the hour of sale, and then the property was sold in a lump to the attorney of the earlier execution creditor. The surroundings of the sale clearly indicated fraud, and the court so held. In Keyser's Appeal, 13 Pa. St. 409, it was held that "the mere leaving in the possession of the defendant until sale goods levied upon with the permission of the plaintiff will not divest the lien of the execution unless there be fraud." So in Bingham v. Young, 10 Pa. St. 395, there was evidence of a fraudulent arrangement, whereby the defendant was invested with the apparent ownership of property until the sheriff's course was changed by the issuing of other writs.

Bickel & Hobson, for appellees.

Applying former decisions to the words of appellant's letter: "DEAR SIR: I want you to do nothing to annoy Mr. Ervin, or make any publicity"--the publicity of judicial sales is, in every aspect in which the matter can be received, a requisite of indispensable necessity, and in accordance with the whole statutory policy on the subject. Secret or private sales of personal property by an officer of the law charged with execution are not countenanced by any adjudicated cases in this state. Bingham v. Young, 10 Pa. St. 395. Goods levied on should, in a reasonable time thereafter, be taken possession of by the officer of the law, in such a manner as to apprise everybody that they have been taken in execution. Wood v. Vanarsdale, 3 Rawle, 401. This case is cited approvingly in several cases, notably in Pary's Appeal, 41 Pa. St. 273. "I want him to go ahead, and conduct his business as usual. Allow him to take and keep the money that comes in." Possession and control remaining after levy as before, and private sales, are both in contravention

of the law, and, when they result from arrangements made by the execution creditor, he will be postponed to a junior execution. Such arrangements are so evidently for the benefit of the debtor, rather than a means of collecting the debt according to law, and the exigence of the writ, and they present such a strong temptation to do wrong, not only in making sales, but to carry off and conceal the property, that the law forbids them altogether, not only for fraud in fact, but as being a fraud in law. Pary's Appeal, 41 Pa. St. 273. If the plaintiff, even without any previous concert or collusion with the defendant, on delivering his execution to the sheriff directs him to make a seizure of the defendant's personal property, but not to take it from him, or to sell it without further orders, for he expects the debt will be settled or paid without that, or if he give any direction to the like effect, his execution will not be good against subsequent executions at the suit of other creditors. And this would be the case though the plaintiff may not thereby intend to hinder, delay, or defraud other creditors, but to hasten the debtor merely to pay. Weir v. Hale, 3 Watts & S. 285; Keyser's Appeal, 13 Pa. St. 409; Bingham v. Young, 10 Pa. St. 395; Truitt v. Ludwig, 25 Pa. St. 145. If instructions amounting to a stay or a relinquishment of the goods to the debtor are given to the sheriff, the plaintiff's right to the proceeds is postponed in favor of subsequent executions. Eberle v. Mayer, 1 Rawle, 366; Kauffelt's Appeal, 9 Watts, 334; Dorrance v. Com., 13 Pa. St. 160. The evidence offered to explain Mr. Larzelere's purpose in writing the letter was properly excluded. Cake v. Bank, 9 Atl. Rep. 302; Rowland v. Finney, 96 Pa. St. 196; Martin v. Berens, 67 Pa. St. 459. In the case of Landis v. Evans, 113 Pa. St. 332, 6 Atl. Rep. 908, cited by appellant, plaintiff simply asked a day's delay, and then that the sheriff wait till the afternoon, and then specifically instructed the sheriff to levy before the second writ was placed in his hands.

PER CURIAM. The report of the learned auditor in the case before us is so thoroughly fortified by authority as to render it impregnable, and, as a consequence, we must approve the decree of the court, which sustains it. Decree affirmed, and appeal dismissed, at costs of appellant.

TELFORD & F. TURNPIKE Co. v. GERHAB.

(Supreme Court of Pennsylvania. March 19, 1888.)

1. CORPORATIONS-STOCK-TRANSFER-ENTRY ON BOOKS.

Where a president of a stock company transferred his stock by filling the printed form on the back of the certificate, and notified the directors and secretary of the sale and transfer, although the certificate stated that it was "transferable on the books of the company in person or by attorney," the purchaser became the equitable owner, against a judgment creditor of the vendor, although the transfer had not been noted on a so-called transfer book kept by the secretary; and he was entitled to have the transfer noted, on notice to the secretary, and presentation of the certificate.

2. SAME-LIABILITY OF COMPANY FOR REFUSAL TO NOTE TRANSFER.

Where a stock company refused to transfer certain shares of stock on its books to a third party, to whom a certificate had been assigned, but marked them on the books as the property of another, held, that the company was not liable in assumpsit for the conversion of the stock, but only in an action on the case for damages for the refusal to note the transfer.

Error to court of common pleas, Montgomery county; B. M. BOYER, President Judge.

John Gerhab, to the use of John N. Jacobs, plaintiff, sued the Telford & Franconia Turnpike Road Company, defendant, to recover the value of 11 shares of stock in said company, with accrued dividends. The following is the finding and opinion of the court below, (BOYER, P. J.:)

"John Gerhab was the owner of eleven shares of the capital stock of the Telford & Franconia Turnpike Road Company, for ten of which a certificate

had been issued by the company to John Gerhab direct; and one share was assigned by him to Henry D. Musselman. On the 13th day of March, 1879, the eleven shares were assigned by John Gerhab, for a sufficient consideration, to John N. Jacobs; of which fact Gerhab, who was in the board of directors of the company, and president of the same, immediately notified his associate directors, and resigned his office. The secretary of the company was also notified. The assignment was not made upon the books of the company; and, in fact, the turnpike company had no book for the transfer of stock by the seller, in person or by attorney. They had a book which was termed a 'transfer book,' but it was a book used simply to note transfers of stock by the secretary. The real transfer was on the back of the certificate, and in the form prescribed by the company, which differs from the usual form indorsed upon certificates of stock, contemplating a formal transfer upon the books, but is a printed form for a direct and immediate assignment and transfer in itself. It is true that upon the face of the certificates occur the printed words, Transferable in the books of the company in person or by attorney,' but the important word only,' in this connection, confining the transfer to be upon the books alone, as usual in such notices, is omitted, and the practice of the company conforms to this omission, as no actual transfer upon their books was ever made by a seller; but the transfer of stock upon their books was in their practice simply a notation by the secretary that such transfer had been made. When, therefore, Gerhab executed his absolute assignment upon the back of the certificates in the form furnished by the company itself, in their printed blank indorsed thereupon, Jacobs became the equitable owner of the stock, without any notation by the secretary upon the so-called transfer book; and, after due notice to the company, he became entitled to demand and receive any and all dividends afterwards declared upon the stock so acquired by him. He became entitled, also, to have his ownership noted upon the books of the company, upon notice to the company of his purchase, and the presentation of the certificates with the assignments upon them. This the company, after notice, through its officers, refuse to do; having allowed judgment to be recovered against them as garnishees of John Gerhab upon an attachment execution issued by the Union National Bank of Souderton, a judgment creditor of Gerhab, upon their answers to interrogatories, as follows, viz.: At the time of the service of the writ upon the officers of this company, the defendant, John Gerhab, held 11 shares of the capital stock of the company. The books of the company show that said shares are now, and were at the time, standing in the name of John Gerhab, and were never assigned on said books, or with our knowledge or consent, to any other person.' The garnishees, in their answers, made no mention that John Gerhab had before that date, and before the issuing of the attachment, notified the officers of the turnpike company that he had assigned his stock, and that he resigned from the presidency of the company on that account. Upon the judgment so obtained the stock was afterwards sold at sheriff's sale, and purchased by the Union National Bank of Souderton, the plaintiff in the execution, after notice had been publicly given at the sale by Jacobs that the stock was his, and not the stock of Gerhab. Afterwards the turnpike company marked the stock as transferred to the said purchaser at sheriff's sale, taking a bond of indemnity from the latter. It is a fact, however, whether material or not, that Jacobs did not produce and exhibit to the officers of the turnpike company the certificates, with the assignments upon them, until after the date of issuing and service of the attachment; nor until after the stock had been marked by the company upon their books as transferred to the bank. But the assignment of the stock by Gerhab to Jacobs, and notice thereof to the company, preceded the date of the writ of attachment execution, and should have warned the company to be cautious in their answer to the interrogatories filed by the attaching creditor, and to notify Gerhab's assignee to defend the suit. Under

these circumstances, I hold that the proceedings in the attachment execution did not affect the ownership of the stock previously acquired by Jacobs; although not actually marked as transferred to him upon the books of the turnpike company. Even if the printed notice on the certificate had said that the stock was “only” transferable on the books of the company, Jacobs would still have become the equitable owner of the stock, under the assignment to him, and was entitled to hold the same against all subsequent attaching creditors of Gerhab; and the turnpike company, after notice of the assignment by Gerlab, had no authority to treat it as his. See Com. v. Watmough. 6 Whart. 117; Finney's Appeal, 59 Pa. St. 398. But if, as we have seen, Jacobs had become the virtual owner of the stock, and entitled to demand accruing dividends, it is not easy to see what substantial injury he has thus far suffered, merely from the refusal of the defendant company to note the transfer on their books, unless he had thereby lost an advantageous sale, which does not appear. Nor is this the form of action in which to recover the damages for the refusal to note the transfer. The refusal was a tort, the remedy for which is a special action on the case. See Morgan v. Bank, 8 Serg. & R. 73; Insurance Co. v. Com., 92 Pa. St. 72; Building Association v. Sendmeyer, 50 Pa. St. 67; Shipley v. Bank, 10 Johns. 484. It is true, the tort, in many cases of tort, may be waived, and an action brought in assumpsit. But this is only where the circumstances raise an implied contract. For example, assumpsit does not lie for a chattel illegally detained; but it does where one, tortiously in the possession of another's goods, converted them. In such case the plaintiff cannot waive the tort, and recover the value of the goods, unless the tort-feasor has sold them, and received the money, or where he has taken them as merchandise to market for the purpose of sale, and receipt of the money. See Borough v. Insurance Co., 81 Pa. St. 446-455; Boyer v. Bullard, 102 Pa. St. 555; Willet v. Willet, 3 Watts, 277; Gilmore. v. Wilbur, 12 Pick. 120; McCullough v. McCullough, 14 Pa. St. 295.

"It cannot be said that there ever was a conversion of this stock by the turnpike company, so as to raise the implied promise to pay for it. The mere marking it upon the so-called transfer book as having been transferred to the bank was no conversion for the use of the turnpike company; nor was it any conversion at all, for such marking in itself conferred no title to the real ownership of the stock, nor deprived the lawful owner of his rights. In this regard, therefore, the marking the stock as transferred to the bank was a nullity; and the refusal of the company to mark the stock as transferred to Jacobs, in accordance with the practice of the company in changes of ownership, was simply a tort, and not such a one from which an implied contract can arise. The case of Reese v. Bank, 26 Pa. St. 143, cited by plaintiff's counsel, has no application; for there there was an unlawful conversion of the stock by the bank to which the plaintiff was as a stockholder ratably entitled, but from the benefit of which he was excluded. That was a tort, therefore, from which an implied promise arose upon which assumpsit could be sustained. But we are of opinion that assumpsit is well brought for recovery of the dividends upon the disputed stock due at the date of the institution of the suit. This suit was brought May 11, 1883, when only one dividend, amounting to three per ct. upon the capital stock, had accrued. The later and larger dividends must, unless paid, be recovered in another suit. The plaintiff is also entitled to interest from the date of his demand; but, as there is no evidence of the precise date of the demand, we allow interest from the commencement of this suit, May 11, 1887. Principal of dividend, $16.50, plus interest from May 11, 1883, to April 4, 1887, $3.77 $20.27, the amount recoverable. As the sum which can be recovered in this action is within the jurisdiction of a justice of the peace, the judgment must be entered without costs. Judgment to be entered accordingly in favor of the plaintiff, unless exceptions are filed within thirty days, for the sum of $20.27, without costs."