Worrell then came down stairs and began a sale of the goods. No bids were made by any person but McFarlane, and the goods were knocked down on his bid to John Clark. Worrell stated that he sold the goods in different lots, and knocked them off at bids that, in the aggregate, amounted to $200. After the store goods were sold he sold some shingles for $80, which were also knocked off to John Clark, making the total amount of sale $280, for which a draft was drawn on John Clark, the plaintiff, at Williamsport, and afterwards paid by him. Dunlap, the plaintiff in this execution, was not at the sale when it began, but came there shortly | afterward. Some objections were made by him when he got there to the manner in which the sale was being conducted. McFarlane and he went into a small office adjoining the store; had some conversation, during which the sale was stopped; that when they came out Dunlap allowed the sale to go on. Statements were made by McFarlane that the sale was being made for his benefit, and he inquired of parties at the sale whether they intended to make bids on the property. After the sale timber trees were contracted for by McFarlane to make shingle bolts, and these trees were paid for out of the store, where the business was carried on in the same manner after the sale as it had been before. The verdict was in favor of the plaintiff, Clark, and the defendant took this writ of error, assigning for error, inter alia, the refusal of the court to affirm his third point: "That if the jury believe there was an arrangement by the claimant in this action, that the sale made in February, 1875, should be for the benefit and advantage of the defendant in that writ, who was also the defendant in the writ upon which the sale was made in 1877, the said sale of February, 1875, was void." fendant in error and McFarlane, with a view to defraud the creditors of the latter. This question was fully and clearly submitted to the jury. The court charged, "if any or all of the circumstances surrounding this transaction indicate that there was an understanding or arrangement between Clark and McFarlane to have this sale made for the purpose of hindering, delaying or defrauding the creditors of McFarlane, then no title would pass under that sheriff's sale to John Clark, because it was a fraudulent sale, and Clark could not set up a title acquired under and through fraud.” Still further it charged, if they were "satisfied from all the circumstances given in evidence that there was a fraudulent arrangement between Clark and McFarlane to make sale and purchase this property through a sheriff's sale, then Sheriff Pentz, who levied upon and sold this same property afterwards, could not be called to respond in damages to the plaintiff." The sale was not made on an execution in favor of the defendant in error. He resided in another county, and was not personally present at the sale. He authorized his son, who was carrying on business for him in the vicinity, to bid for him. The son, who was confined to his bed by sickness, requested the sheriff to bid a sum specified. When the property was exposed to sale the defendant in the execution, at the request of the sheriff, bid the sum specified, and the property was struck down to the defendant in error. Several persons were at the sale. No one bid higher. The validity of the judgment on which the execution issued is unquestioned. All the forms of law were complied with. The property sold at a fair price. Most of it in lots, it is true, but there is no evidence that it would have brought more if it had been sold by items. The defendant in error was not consulted in regard to the sale, and gave no For plaintiff in error, Messrs. Wallace & Krebs directions as to the manner of making it. Standand Frank Fielding. Contra, Messrs. Murray & Gordon. Opinion by MERCUR, J. Filed October 2, 1882. This action by the defendant in error was to recover damages for the sale of his personal property as the property of one McFarlane. Some two and a-half years prior to this alleged trespass the property had been sold on execution against McFarlane, and bought by the defendant in error. The attempt was made by the plaintiff in error to attack the validity of the sale. If there was any fraud therein, it was a fact to be found by the jury, and not one in law to be declared by the court. It was claimed to have been made by collusion between the de ing, then, in the position of a good faith purchaser at a public judicial sale, it would have been clearly wrong to effect his title by the declarations of McFarlane, of which he had no notice. All such evidence was properly rejected. A wide range was given in the admission of evidence. All the circumstances connected with the sale of other property about the same time, on the same execution, the possession and control thereof, and the conduct and declarations of the parties to the executions at the sale were given in evidence. Under a clear and fair charge the jury found the defendant did not participate in any fraudulent arrangement connected with the sale. The eighth specification of error is to the an swer to the third point. The answer may be liable to criticism. The point asked for a declaration of law, on certain facts stated, that the sale was void. This the court declined to affirm, but referred the facts therein stated to the jury for their determination. If there had been any evidence to justify the submission to the jury of | the facts stated in the point, the latter part of the answer would have been objectionable. If, however, there was not sufficient evidence of the fact alleged to submit to the jury, the court ought to have denied it. Then the other part of the answer did no injury to the plaintiff in error. On a careful reading of the evidence we do not find any sufficient to justify its submission. Still further, the mere fact of an arrangement with the defendant in error, that the sale should be for the benefit and advantage of the defendant in the execution, did not of itself make the sale absolutely void. It would be voidable by any creditor defrauded, but was good as between the parties thereto. The point wholly ignores all question of fraud. On no principle, then, can the sale be declared void. It is not necessary to consider the other specifications separately; they present no just cause of complaint. Judgment affirmed. GIBBS AND STERRETT MANUFACTURING COMPANY'S APPEAL. Construction of the Act of April 9, 1872, for the better securing the wages for manual labor to miners, mechanics and laborers. Lewis, the defendant in the execution, contracted with Smith to drill eight oil wells on land owned in fee by the latter. Smith agreed to construct the necessary carpenter rigs, furnish all the machinery, tubings, casing and fittings for the wells at his own expense, and pay Lewis sixty-five cents per foot for drilling. Lewis was to furnish his own drilling tools, perform or cause to be performed all the labor, and pay all the expenses of drilling the wells. He had no interest in the land on which they were located, nor in the oil to be produced therefrom; nor had Smith, the owner of the land, any interest in the drilling tools sold on the execution. Lewis was simply a contractor engaged in drilling wells for different persons, moving his tools from place to place, as occasion might require, and using them there until the well was completed and connected with a tank. His work was then finished and his tools re moved. Held, that Lewis did not belong to either of the classes of employers designated by the act, and that his drilling tools, etc., were not subject to the lien contemplated by the first section thereof. The auditor (W. B. Chapman, Esq.), found the following facts: That the plaintiffs, Gibbs & Sterrett Manufacturing Company, recovered two judgments against P. M. Lewis, to wit, No. 87 May Term, 1881, judgment for $216.75; No. 88 May Term, 1881, judgment for $225.28; and that on March 2, 1881, writs of fieri facias were issued upon said judgments, and on the 16th day of March, 1881, R. Sartwell, sheriff of said county, levied said writs and seized the property of P. M. Lewis, the defendant, one complete set of drilling tools, used in drilling oil wells, and on the 23d day of March, 1881, after due and legal notice, sold said property as that of the defendants; money made thereon, after paying of costs, to wit, $500.04, was by him paid into court. That before said property was sold, John Cunningham served upon the sheriff holding said writs a written notice that he, the said Cunningham, claimed a lien upon said property for wages of manual labor performed with the tools, and the property levied upon in the drilling of oil wells for said defendant, from the 5th day of December, 1880, to March 8, 1881, making a total of forty-six days at $3 per day as tool-dresser, the total amount claimed to be due on said amount was $138. W. J. Basoom served upon the sheriff a like notice, being the same character of a claim, for twenty-seven days work, at $3 per day, from December 22, 1880, to March 8, 1881, claimed a balance due him as driller, of $34.25. Robert R. Young at the same time served a like notice, making a like claim for seventy days work, at $3.50 per day, as driller, from December 2, 1880, to March 8, 1881, balance claimed to be due $157.89. W. R. Richardson at the same time served a like notice, making a like claim, for ninty-three days work, at $3.25 per day, as driller, from December 5, 1880, to March 8, 1881, amount claimed to be due was $303.25. We find there was due to each of said claimants the several sums set out in their respective claims for work and labor performed at the time and in the manner claimed by them in their said notices, and within six months before the serving of said notices upon said sheriff. We are asked to find that these labor claims are a first lien to the amount of $200 on the money in court, under the provisions of the 1st and 2d sections of the Act of Assembly of April 9, 1872, Appeal from the decree of the Court of Com- for the better securing the wages for manual mon Pleas of McKean county. This was an appeal by the Gibbs & Sterrett Manufacturing Company from the decree of dis- | tribution of the proceeds of sheriff's sale in the matter of executions in favor of Gibbs & Sterrett Manufacturing Company v. P. M. Lewis. labor to miners, mechanics and laborers. (The remaining facts of the case are stated in the opinion of the Supreme Court seq.) Upon the law of the case the auditor reported as follows: "The execution creditors are entitled to the the surface is mining. The Legislature has defined the producing of oil as mining. In the Act of June 28, 1879, P. L., 186, a further supplement relating to the liens of mechanics and others. Section 2 provides: money in controversy under the lien of their writs, unless the provisions of the 1st and 2d sections of the Act of Assembly of the 9th day of April, 1872, 2 Purd. Dig., 1464, has given a different direction to this fund. The 1st section of said act provides, that 'all moneys that may “That all persons performing labor for or be due, or hereafter become due, for labor, or about the construction or erection of any engine, for services rendered by any miner, mechanic, engine-house, derrick or tank, or for boring, laborer and clerk, from any person or persons, drilling or mining on any lease, shall have a or chartered company employing clerks, miners, lien upon said engine, engine-house, derrick, oil mechanics or laborers, either as owners, les- well and fixtures.' Here is a clear expression sees, contractors or under-owners of any works, | of legislative intention defining the act of promines, manufactory or other business where | ducing oil to be mining. This act was passed clerks, miners or mechanics are employed, seven years after said Mining Act, no doubt the whether at so much per diem or otherwise, Legislature having it in mind when this act for any period not exceeding six months im- was passed. mediately preceding the sale or transfer of such works, mines, manufactory or business or other property connected therewith, in carrying on said business, by execution or otherwise, preceding the death or insolvency of such employer or employers, shall be a lien upon said mine, manufactory, business or other property in and about or used in carrying on the said business, or inducing the oil after the well was completed, it 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 mine, manufactory, business or other property as aforesaid.' "The counsel for the labor claimants contends, that drilling and sinking of oil wells and the production of petroleum oil is mining, and that the defendant Lewis was a 'contractor,' as is provided for in said act, and that these labor claimants are miners, and while at work for Lewis were engaged in the business of mining, with the drilling tools and property sold, in drilling and mining for petroleum oil, and that they are within the provisions of said act providing that such laborers 'shall be a lien upon said mine, manufactory, business or other property in or about or used in carrying on the said business or connection therewith,' and are thereby entitled first to be paid out of money accruing from said sale. The Act of April 9, 1872, is general and broad in its terms. The court, however, so far as we are informed, have construed it to apply only to mining and manufacturing business, and that laborers therein employed are the only ones preferred. "We are of the opinion that producing oil in the way and manner it is produced in this country is mining, and is within the provisions of said act. It is said in Stoughton's Appeal, 7 | Norris, 189, 'that oil is a mineral, and being a mineral is part of the land.' Then clearly the producing of petroleum oil and bringing it to "It is contended by counsel for execution creditors that in case we come to the conclusion that producing oil is mining, still that they are entitled to the money in court, for the reason that the drilling tools, the property sold, was not a part of the mining interest, not connected with the landed interest, not to be used in pro being simply the property of the defendant, and under a special contract simply to drill the well or sink the shaft, whereby the oil might be produced by the operator and brought to the surface. "Under the facts found, we are inclined to adopt this view of the law in this case, believing that under the Act of April 9, 1872, to entitle a laborer to a preference of liens, that the property sold must belong to the mining interest, the producing interest, so that in case the mine was sold the property used would be sold therewith. Had the wells and land been sold, instead of the tools, we have no doubt but what the laborers would have a lien upon the money accruing from the sale. "The contractor mentioned in said act, in our judgment, is one who is operating the mine. The connection in which this word appears in the statute seems to apply this. The whole sentence reads: 'Either as owner, lessee, contractor or under-owner of any works or mines.' The contractor evidently is supposed to be one employed by the owner or lessee to operate the mine, produce the mineral, coal, iron, oil or other mineral, at a fixed price per ton or barrel. For this purpose he may use machinery, tools, cars, of other property necessary to carry on said works, mines or manufacturing business; that the property of said contractor must belong to the producing interest, or connected with said mining interest in producing the oil or operating the mine is evident from the next paragraph to the one quoted of said statute, and designating which property must be sold to entitle the laborer to his lien, the work must have been | had Smith, the owner of the land, any interperformed six months preceding the 'sale and est in the drilling tools sold on the execution. transfer of said works, mines, manufacturing Lewis was simply a contractor engaged in drillbusiness or other property connected therewith ing wells for different persons, moving his tools in carrying on said business.' from place to place, as occasion might require, and using them there until the well was conpleted and connected with a tank. His work was then finished and his tools removed. "It is claimed that the property sold in this case comes within the provisions of said act, to wit: 'Or other property connected therewith.' These words, in our judgment, mean just what they say, 'connected therewith,' belonging thereto, belonging to the mining and producing interest, and not property simply used by a stranger to the mining interest under a special contract for a fixed price to do and perform some special work connected with and pre-as to subject it to the lien contemplated by the paring the mine for operation. "When we add the words immediately following, or in carrying on said business,' we are led to the conclusion, under the facts in this case, that the drilling tools and property sold was not the kind of property provided for in said act, giving a preferred lien to miners, laborers or mechanics. "Entertaining these views, we are forced to the conclusion that these labor claimants have no lien upon the money in court.” Exceptions were filed and sustained, and distribution of the fund decreed among the labor claimants, which is assigned for error. For appellants, Messrs. F. D. Reeves and Geo. A. Berry.. Contra, Messrs. J. C. & George A. Sturgeon. Opinion by STERRETT, J. Filed October 2, 1882. The conclusions of the learned auditor in this case were correct, and the fund should have been decreed, in accordance therewith, to the appellants, on whose execution it was raised. Prima facie, they were entitled to the money, and the appellees, who claimed it as preferred lien creditors, under the Act of April 9, 1872, failed to bring themselves within the provisions of the act. The facts found by the auditor are briefly these: In the fall of 1881, before any of the labor embraced in the respective claims was performed, Lewis, the defendant in the execution, contracted with Smith to drill eight oil wells on land owned in fee by the latter. Smith agreed to construct the necessary carpenter rigs, furnish all the machinery, tubing, casing and fittings for the wells at his own expense, and pay Lewis sixty-five cents per foot for drilling. Lewis was to furnish his own drilling tools, perform or cause to be performed all the labor, and pay all the expenses of drilling the wells. He had no interest in the land on which they were located, nor in the oil to be produced therefrom; nor The questions naturally suggested by these facts are: 1st. Did Lewis properly belong to either of the classes of employers designated by the act? 2. Was the property sold on the execution so connected with and used in carrying on any branch of business described in the act first section thereof? A proper construction of the act answers both these questions in the negative. The several classes of employers, from whom wages must be due in order to entitle their employees to a lien under the act, are designated therein, "either as owners, lessees, contractors or under-owners of any works, mines, manufactory or other business." Lewis was clearly neither owner, underowner nor lessee of the oil wells. He had no interest whatever therein, nor was he a contractor within the meaning of the act. The word "contractors "as used therein is applicable only to persons employed by the owner or lessee of a mine to operate the same, produce the mineral, coal, iron or whatever it may be, for an agreed compensation, and does not embrace those who undertake to perform some special service in the construction of works, or the opening of mines preparatory to their being operated. The property also which is subject to the lien must be connected with the works or mines, and used in carrying on the particular business contemplated by the construction of the one and the opening of the other; and not such property as may be used, by one who has no interest in the operation of the works or mines, under a special contract to do some special work in the preparation of either for active operation. The phrases, "or other property connected therewith in carrying on said business,” and “property in and about or used in carrying on the business or in connection therewith," employed in the act, clearly indicate that it was not intended to apply to the tools of an itinerant mechanic, such as Lewis evidently was in this case. The conclusions of the learned auditor are so fully sustained by his report that further comment is unnecessary. Decree reversed at the costs of appellees, and it is now ordered that the fund be distributed, in accordance with the report of the auditor. Pittsburgh Legal Journal. ESTABLISHED 1853. E. Y. BRECK, N. S., Vol. XIII. 0. S., Vol. XXX. J : : Editor. PITTSBURGH, PA., APRIL 18, 1883. Supreme Court, Peun’a. No. 36. COMMONWEALTH OF PENNSYLVANIA v. indeed it is not seriously denied that it has rendered itself liable to taxation. It was contended on the part of the Commonwealth that according to the letter of the statutes the tax should be imposed upon all of the capital stock of the company, while on the other side it was urged that only so much of the stock was intended to be taxed as is represented by property of the company invested and used in the State of Pennsylvania. It has been repeatedly decided, and is settled law, that a tax upon the capital stock of a company is a tax upon its THE STANDARD OIL CO. OF CLEVELAND, property and assets: Saving Fund v. Yard, 9 OHIO. Barr, 359; Lehigh Coal and Navigation Co. v. THE STANDARD OIL CO. OF CLEVELAND, SYLVANIA. Foreign corporations doing business within the State of Pennsylvania are liable under existing laws to pay a license tax for the protection afforded by the State to such corporations; but they cannot be taxed for the whole amount of their capital stock, unless they make this State their domicile and the situs of their property. The mere act of a foreign corporation sending its agents to transact business within this Commonwealth, does not render its entire capital stock liable to taxation under existing laws. The State has no power to tax foreign corporations for the mere holding of stock in corporations or limited partnerships in this Commonwealth, which have already paid the tax levied upon them. Distinction, for the purposes of taxation, between capital stock of a corporation and the certificates of stock held by its members. of Luzerne, 6 Wright, 424; New York & Erie R. Co. v. Sabin, 2 Casey, 242; Erie R. Co. v. Commonwealth, 16 P. F. Smith, 84; County of Lackawanna v. The Bank, 13 Norris, 221; Coatesville Gas Co. v. Chester Co., 1 Out., 476; Phoenix Iron Co. v. The Commonwealth, 9 P. F. Smith, 104; Mutual Ins. Co. v. Supervisors of Erie, 4 N. Y., 442; International Life Ins. Society v. Commissioners, 28 Barb., 318; New Haven v. Bank of New Haven, 31 Conn., 106; Nicholas v. New Haven Co., 42 Id., 103; Mechanics' Bank v. Bridges, 30 N. J., 112; State v. Haight, 34 Id., 319; State Bank v. Breckrenridge, 7 Blackf., 395; Auditor v. New Albany R. Co., 11 Ind., 570; Whitney v. Madison, 23 Id., 331; State v. Hamilton, 5 Id., 310; Michigan R. Co. v. Porter, 17 Id., 280; Quincy R. Bridge Co. v. Adams, 88 Ill., 615; Hannibal & St. Joseph's R. Co. v. Shacklett, 30 Mo., 558; Rome R. v. Rome, 14 Ga., 675; National Bank v. The Commonwealth, 9 Wallace, 353; Illinois Railroad Tax Cases, 2 Otto, 598; Bible Co. v. Central R. Co., 40 Ga., 846; Gordon v. Mayer, 5 Gill., 231. Equally well settled is the principle that the power of taxation, however vast in its character and searching in its extent, is necessarily limited to subjects within the jurisdiction of the StateError to the Court of Common Pleas of Dau- these subjects are persons, property and business. phin county. A foreign corporation does not render itself liable to taxation within this State by the purchase of raw material which is shipped to its place of domicile for manufacture. When an act giving to the Commonwealth the power of collecting taxes, together with penalties for non-payment, etc., is repealed, reserving to the Commonwealth the right to collect all taxes accrued, the penalties cannot be recovered upon suits afterwards instituted to collect the taxes. 1882. See State Tax on Foreign Held Bonds, 15 Wal Opinion by PAXSON, J. Filed November 20, lace, 319; Maltby v. Reading & Columbia R. Co., 2 P. F. Smith, 146; McCullough v. State of Maryland, 4 Wheaton, 316. Each party to this contention is dissatisfied with the judgment of the court below, and has taken its writ of error. We will first consider the case as presented upon the Commonwealth's writ. The principal contention is as to the extent the Standard Oil Company is liable to taxation under the several Acts of Assembly taxing foreign corporations "doing business within this Commonwealth." The court below found the fact that the company was doing business here; It is undoubtedly competent for the Legislature to lay a franchise or license tax upon foreign corporations for the privilege of doing business within this State. The Act of 1868, P. L., 83, to revise, amend and consolidate the several laws regulating the licensing of foreign insurance companies is such an act. It required a license and imposed a tax; heavy fines were inflicted upon any such company doing business |