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Worrell then came down stairs and began a fendant in error and McFarlane, with a view to sale of the goods. No bids were made by any defraud the creditors of the latter. This quesperson but McFarlane, and the goods were tion was fully and clearly submitted to the jury. knocked down on his bid to John Clark. Wor- | The court charged, “if any or all of the circumrell stated that he sold the goods in different stances surrounding this transaction indicate lots, and knocked them off at bids that, in the that there was an understanding or arrangeaggregate, amounted to $200. After the store ment between Clark and McFarlane to have goods were sold he sold some shingles for $80, this sale made for the purpose of hindering, dewhich were also knocked off to John Clark, laying or defrauding the creditors of McFarlane, making the total amount of sale $280, for which then no title would pass under that sheriff's a draft was drawn on John Clark, the plaintiff, sale to John Clark, because it was a fraudulent at Williams port, and afterwards paid by him. sale, and Clark could not set up a title acquired Dunlap, the plaintiff in this execution, was not under and through fraud." Still further it at the sale w hen it began, but came there shortly charged, if they were “satisfied from all the afierward. Some objections were made by him circumstances given in evidence that there was when he got there to the manner in which the a fraudulent arrangement between Clark and sale was being conducted. McFarlane and he McFarlane to make sale and purchase this propwent into a small office adjoining the store; erty through a sheriff's sale, then Sheriff Pentz, had some conversation, during which the sale who levied upon and sold this same property was stopped ; that when they came out Dunlap | afterwards, could not be called to respond in allowed the sale to go on.

damages to the plaintiff." Statements were made by McFarlane that the The sale was not made on an execution in sale was being made for his benefit, and he in favor of the deferidant in error. He resided in quired of parties at the sale whether they in- ' another county, and was not personally present tended to m ake bids on the property. After the at the sale. He authorized his son, who was sale timber trees were contracted for by McFar- carrying on business for him in the vicinity, lane to m ake shingle bolts, and these trees were to bid for bim. The son, who was confined to paid for out of the store, where the business was his bed by sickness, requested the sheriff to bid carried on i u the same manner after the sale as a sum specified. When the property was exit had been before.

posed to sale the defendant in the execution, at The verdict was in favor of the plaintiff, Clark, the request of the sheriff, bid the sum specified, and the defendant took this writ of error, assign- , and the property was struck down to the deing for error, inter alia, the refusal of the court fendant in error. Several persons were at the to affirm his third point: “That if the jury sale. No one bid higher. The validity of the believe there was an arrangement by the claim- judgment on which the execution issued is unaut in this action, that the sale made in Febru- / questioned. All the forms of law were complied ary, 1875, should be for the benefit and advantage with. The property sold at a fair price. Most of the defendant in that writ, who was also the of it in lots, it is true, but there is no evidence defendant in the writ upon which the sale was that it would have brought more if it had been made in 1877. the said sale of February, 1875, | sold by items. The defendant in error was not was void.',

consulted in regard to the sale, and gave no For plaiutiff in error, Messrs. Wallace & Krebs | directions as to

directions as to the manner of making it. Standand Frank Fielding.

ing, then, in the position of a good faith purContra, Messrs. Murray & Gordon.

chaser at a public judicial sale, it would have

been clearly wrong to effect his title by the deOpinion by MERCUR, J. Filed October 2, 1882. clarations of McFarlane, of which he had no

action by the defendant in error was to notice. All such evidence was properly rejected.

damages for the sale of his personal A wide range was given in the admission of property Sanders as the property of one McFarlane. | evidence. All the circumstances connected with

Wo and a-half years prior to this alleged the sale of other property about the same time, against

the property had been sold on execution on the same execution, the possession and conOst M cFarlane, and bought by the defend-trol thereof, and the conduct and declarations plain tit.

error. The attempt was made by the of the parties to the executions at the sale were sale. If

f in error to attack the validity of the given in evidence. Under a clear and fair fact to be

If there was any fraud therein, it was a charge the jury found the defendant did not be found by the jury, and not one in law | participate in any fraudulent arrangement con

eclared by the court. It was claimed to nected with the sale. have bee,

een made by collusion between the de' The eighth specification of error is to the an

Si

recove

trespass tbe property

ant in error. The at

to be declared by the court.

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swer to the third point. The answer may be The auditor (W. B. Chapman, Esq.), found liable to criticism. The point asked for a decla- the following facts: That the plaintiff's, Gibbs ration of law, on certain facts stated, that the sale & Sterrett Manufacturing Company, recovered was void. This the court declined to affirm, two judgments against P. M. Lewis, to wit, No. but referred the facts therein stated to the jury 87 May Term, 1881, judgment for $216.75; No. 88 for their determination. If there had been any May Termı, 1881, judgment for $225.28; and that evidence to justify the submission to the jury of on March 2, 1881, writs of fieri facias were issued the facts stated in the point, the latter part of upon said judgments, and on the 16th day of the answer would have been objectionable. If, | March, 1881, R. Sartwell, sheriff of said county, however, there was not sufficient evidence of levied said writs and seized the property of P. the fact alleged to submit to the jury, the court M. Lewis, the defendant, one complete set of ought to have denied it. Then the other part drilling tools, used in drilling oil wells, and on of the answer did no injury to the plaintiff in the 23d day of March, 1881, after due and legal error. On a careful reading of the evidence we notice, sold said property as that of the defenddo not find any sufficient to justify its submis- | ants; money made thereon, after paying of costs, sion. Still further, the mere fact of an arrange- to wit, $500.04, was by him paid into court. That ment with the defendant in error, that the sale before said property was sold, John Cunningshould be for the benefit and advantage of the ham served upon the sheriff holding said writs defendant in the execution, did not of itself a written notice that he, the said Cunningham, make the sale absolutely void. It would be claimed a lien upon said property for wages of voidable by any creditor defrauded, but was manual labor performed with the tools, and the good as between the parties thereto. The point property levied upon in the drilling of oil wells wholly ignores all question of fraud. On no for said defendant, from the 5th day of Decemprinciple, then, can the sale be declared void. | ber, 1880, to March 8, 1881, making a total of It is not necessary to consider the other specific forty-six days at $3 per day as tool-dresser, the cations separately; they present no just cause total amount claimed to be due on said amount of complaint. : Judgment affirmed. was $138. W.J. Basoom served upon the sheriff

a like notice, being the same character of a claim, GIBBS AND STERRETT MANUFACTURING for twenty-seven days work, at $3 per day, from COMPANY'S APPEAL.

December 22, 1880, to March 8, 1881, claimed a

balance due him as driller, of $34.25. Construction of the Act of April 9, 1872, for the better

Robert R. Young at the same time served a securing the wages for manual labor to miners, mechanics and laborers.

like notice, making a like claim for seventy Lewis, the defendant in the execution, contracted with | days work, at $3.50 per day, as driller, from DeSmith to drill eight oil wells on land owned in fee by

cember 2, 1880, to March 8, 1881, balance claimed the latter. Smith agreed to construct the necessary

to be due $157.89. carpenter rigs, furnish all the machinery, tubings, casing and fittings for the wells at his own expense, and

W. R. Richardson at the same time served a pay Lewis sixty-five cents per foot for drilling. Lewis like notice, making a like claim, for ninty-three was to furnish his own drilling tools, perform or cause I days work, at $3.25 per day, as driller. from Deto be performed all the labor, and pay all the expenses

cember 5, 1880, to March 8, 1881, amount claimed of drilling the wells. He had no interest in the land on which they were located, nor in the oil to be pro

to be due was $303.25. therefrom; nor had Smith, the owner of the land, any We find there was due to each of said claiminterest in the drilling tools sold on the execution.

ants the several sums set out in their respective Lewis was simply a contractor engaged in drilling

claims for work and labor performed at the time wells for different persons, moving his tools from place to place, as occasion might require, and using them

and in the manner claimed by them in their there until the well was completed and connected with said notices, and within six months before the a tank. His work was then finished and his tools re

serving of said notices upon said sheriff. We moved.

are asked to find that these labor claims are a Held, that Lewis did not belong to either of the classes of employers designated by the act, and that his drilling

first lien to the amount of $200 on the money in tools, etc., were not subject to the lien contemplated by court, under the provisions of the 1st and 2d the first section thereof.

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.

labor to miners, mechanics and laborers. This was an appeal by the Gibbs & Sterrett (The remaining facts of the case are stated in Manufacturing Company from the decree of dis- the opinion of the Supreme Court seq.) tribution of the proceeds of sheriff's sale in the Upon the law of the case the auditor reported matter of executions in favor of Gibbs & Ster- as follows: rett Manufacturing Company v. P. M. Lewis. “The execution creditors are entitled to the money in controversy under the lien of their the surface is mining. The Legislature has dewrits, unless the provisions of the 1st and 2d fined the producing of oil as mining. In the sections of the Act of Assembly of the 9th day Act of June 28, 1879, P. L., 186, a further suppleof April, 1872, 2 Purd. Dig., 1464, has given a ment relating to the liens of mechanics and different direction to this fund. The 1st section others. Section 2 provides : 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 an d 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 proniin es, 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 "It is contended by counsel for execution works, mines, manufactory or business or other creditors that in case we come to the conclusion property Connected therewith, in carrying on that producing oil is mining, still that they are said business, by execution or otherwise, preced- entitled to the money in court, for the reason ing the death or insolvency of such employer or that the drilling tools, the property sold, was employers, shall be a lien upon said mine, manu not a part of the mining interest, not connected Factory, business or other property in and about with the landed interest, not to be used in proor used in carrying on the said business, or inducing the oil after the well was completed, it connection therewith, to the extent of the in- being simply the property of the defendant, and terest of said owners or contractors, as the case | under a special contract simply to drill the well may be, in said property, and shall be preferred or sink the shaft, whereby the oil might be proand first Paid out of the proceeds of the sale of duced by the operator and brought to the surface. stien mine, manufactory, business or other prop- ' “Under the facts found, we are inclined to erty as aforesaid.'.

adopt this view of the law in this case, believing The Counsel for the labor claivnants con that under the Act of April 9, 1872, to entitle a tends, that drilling and sinking of oil wells and laborer to a preference of liens, that the property the prociuetion of petroleum oil is mining, and sold must belong to the mining interest, the that the defendant Lewis was a contractor,' as producing interest, so that in case the mine was is provided for in said act, and that these labor sold the property used would be sold therewith. claimants are miners, and while at work for Had the wells and land been sold, instead of the Lewis W ere engaged in the business of mining, tools, we have no doubt but what the laborers with m e drilling tools and property sold, in would have a lien upon the money accruing drilling and mining for petroleum oil, and that from the sale. they are w ithin the provisions of said act pro- "The contractor mentioned in said act, in our viding that such laborers shall be a lien upon judgment, is one who is operating the mine. said m n e, manufactory, business or other prop- The connection in which this word appears in erty in or about or used in carrying on the the statute seems to apply this. The whole said business or connection therewith,' and are sentence reads: "Either as owner, lessee, conthereby entitled first to be paid out of money tractor or under-owner of any works or mines.' acering from said sale. The Act of April 9, The contractor evidently is supposed to be one 18

S general and broad in its terms. The employed by the owner or lessee to operate the Cou

however, so far as we are informed, have mine, produce the mineral, coal, iron, oil or lled it to apply only to mining and manu- other mineral, at a fixed price per ton or barrel.

ng business, and that laborers therein | For this purpose he may use machinery, tools, Syed are the only ones preferred.

cars, of other property necessary to carry on said e a re of the opinion that producing oil in works, miues or manufacturing business ; that

ay and manner it is produced in this the property of said contractor must belong to of said

is mining, and is within the provisions the producing interest, or connected with said a act. It is said in Stoughton's Appeal, 7 | mining interest in producing the oil or operat.

. Norris,

***, 189, 'that oil is a mineral, and being a ing the mine is evident from the next paragrapb mineral i

ral is part of the land.' Then clearly the to the one quoted of said statute, and designatWeing of petroleum oil and bringing it to ling which property must be sold to entitle the

facturing busines

ell

"We are of the way and ma

[graphic]

laborer to his lien, the work must have been had Smith, the owner of the land, any interperformed ix 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 therewithing wells for different persons, moving his tools in carrying on said business.'

| from place to place, as occasion might require, “It is claimed that the property sold in this and using them there until the well was comcase comes within the provisions of said act, pleted and connected with a tank. His work to wit: 'Or other property connected there was then finished and his tools removed. with.' These words, in our judgment, mean The questions naturally suggested by these just what they say, 'connected therewith,' be- facts are: 1st. Did Lewis properly belong to longing thereto, belonging to the mining and either of the classes of employers designated by producing interest, and not property simply the act: 20. Was the property sold on the exeused by a stranger to the mining interest undercution so connected with and used in carrying a special contract for a fixed price to do and per- on any branch of business described in the act form some special work connected with and pre- as to subject it to the lien contemplated by the paring the mine for operation.

first section thereof: “When we add the words immediately fol- A proper construction of the act answers both lowing, or in carrying on said business,' we these questions in the negative. The several are led to the conclusion, under the facts in this classes of employers, from whom wages must be case, that the drilling tools and property sold due in order to entitle their employees to a lien was not the kind of property provided for in under the act, are designated therein, “either said act, giving a preferred lien to miners, la- | as owners, lessees, contractors or under-Owners borers or mechanics.

of any works, mines, manufactory or other busi“Entertaining these views, we are forced to ness." Lewis was clearly neither owner, underthe conclusion that these labor claimants have owner nor lessee of the oil wells. He had no no lien upon the money in court."

| interest whatever therein, nor was be a conExceptions were filed and sustined, and dis- tractor within the meaning of the act. The tribution of the fund decreed among the labor word "contractors" as used therein is applicable claimants, which is assigned for error.

only to persons employed by the owner or lessee For appellants, Messrs. F. D. Reeves and Geo. of a mine to operate the same, produce the minA. Berry.

eral, coal, iron or whatever it may be, for an Contra, Messr8. J. C. &: George A. Sturgeon, agreed compensation, and does not embrace

those who undertake to perform some special Opinion by STERRETT, J. Filed October 2, 1882.

service in the construction of works, or the The conclusions of the learned auditor in this opening of mines preparatory to the case were correct, and the fund should have operated. been decreed, in accordance therewith, to the The property also which is subject to the lien appellants, on whose execution it was raised. / must be connected with the works or mines, Prima facie, they were entitled to the money, and used in carrying on the particular business and the appellees, who claimed it as preferred | contemplated by the construction of the one and lien creditors, under the Act of April 9, 1872, | the opening of the other; and not such property failed to bring themselves within the provisions as may be used, by one who has no interest in of the act.

| the operation of the works or mines, under a The facts found by the auditor are briefly special contract to do some special work in the these: In the fall of 1881, before any of the preparation of either for active operation. The labor embraced in the respective claims was per- phrases, " or other property connected therewith formed, Lewis, the defendant in the execution, in carrying on said business," and "property in contracted with Smith to drill eight oil wells on | and about or used in carrying on the business land owned in fee by the latter. Smith agreed or in connection therewith," employed in the to construct the necessary carpenter rigs, furnish act, clearly indicate that it was not intended to all the machinery, tubing, casing and fittings apply to the tools of an itinerant mechanic, such for the wells at his own expense, and pay Lewis as Lewis evidently was in this case. sixty-five cents per foot for drilling. Lewis was The conclusions of the learned auditor are so to furnish his own drilling tools, perform or fully sustained by his report that further comcause to be performed all the labor, and pay all ment is unnecessary. the expenses of drilling the wells. He had no Decree reversed at the costs of appellees, and interest in the land on which they were located, it is now ordered that the fund be distributed, nor in the oil to be produced therefrom; nor in accordance with the report of the auditor.

Pittsburgh Legal Journal.

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indeed it is not seriously denied that it has

rendered itself liable to taxation. It was conESTABLISHED 1853.

tended on the part of the Commonwealth that E. Y. BRECK, : : : : Editor. | according to the letter of the statutes the tax

should be imposed upon all of the capital stock No. 36.

of the company, while on the other side it was

urged that only so much of the stock was inPITTSBURGH, PA., APRIL 18, 1883.

tended to be taxed as is represented by property

of the company invested and used in the State Supreme Court, Penn'a. of Pennsylvania. It has been repeatedly de

cided, and is settled law, that a tax upon the

capital stock of a company is a tax upon its COMMON W EALTH OF PENNSYLVANIA V

| property and assets: Saving Fund v. Yard, 9 THE STANDARD OIL CO. OF CLEVELAND,

Barr, 359; Lehigh Coal and Navigation Co. v. OHIO.

Northampton County, 8 W. & S., 334; West THE STANDARD OIL CO. OF CLEVELAND, Chester Gas Co. v. County of Chester, 6 Casey, OHIO, V. The COMMONWEALTH OF PENN | 232; Lackawanna Iron and Coal Co. v. County SYLVANIA.

of Luzerne, 6 Wright, 421; New York & Erie R.

Co. v. Sabin, 2 Casey, 242; Erie R. Co. v. ComForeign corporations doing business within the State of

monwealth, 16 P. F. Smith, 84; County of LackPennsylvania are liable under existing laws to pay a license tax for the protection afforded by the state to

awanna v. The Bank, 13 Norris, 221; Coatesville such cor

? corporations; but they cannot be taxed for the Gas Co. v. Chester Co., 1 Out., 476; Phænix Iron

ble amount of their capital stock, unless they make ('o. v. The Commonwealth, 9 P. F. Smith, 104; inis State their domicile and the situs of their property. The mere act of a foreign corporation sending its agents

Mutual Ins. Co. v. Supervisors of Erie, 4 N. Y., to transact business within this commonwealth, does

| H2; International Life Ins. Society v. Commisnot render its entire capital stock liable to taxation

sioners, 9 Barb., 318; New llaven v. Bank of

810ner'8, under existing laws.

New Haven, 31 Coun., 106; Nicholas v. New The State has no power to tax foreign corporations for Haven Co.. +2 Id., 103; Mechanics Bank v. the mere holding of stock in corporations or limited partnerships in this commonwealth, wbich have al

| Bridges, 30 N. J., 112; State v. Haight, 34 Id., ready Paial the tax levied upon them. Distinction, for

319; State Bank v. Breckrenridge, 7 Blackf., oses of taxation, between capital stock of a 395; Auditor v. New Albany R. Co., 11 Ind., 570; corporation and the certificates of stock held by its Whitney v. Madison, 23 Id., 331; Stute v. Hammembers.

ilton, 5 Ill., 310; Michigan R. Co. v. Porter', 17 A foreign corporation does not render itself liable to taxation within this state by the purchase of raw ma

Id., 280; Quincy R. Bridge ('0. v. Adams, 88 terial which is shipped to its place of domicile for man nil., 615; Hannibal & St. Joseph's R. Co. v. ufacture.

Shacklett, 30 Mo., 558; Rome R. v. Rome, 14 Ga., When an aet giving to the Commonwealth the power of 675; National Bank v. The Commonwealth, 9

collectins taxes, together with penalties for non-payment, etc., is repealed, reserving to the Commonwealth

Wallace, 353; Minois Railroal Tax Cascs, 2 the right to collect all taxes accrued, the penalties can

Otto, 598; Bible Co. v. Central R. Co., 40 Ga., not be re.

Ccovered upon suits afterwards instituted to | 846; Gordon v. Mayer, 5 Gill., 231. Equally collect the taxes.

well settled is the principle that the power of Review of the various acts imposiny taxes upon corpo

taxation, however vast in its character and GORDOS, STERRETT and TRUNKEY, JJ., dissent.

searching in its extent, is necessarily limited

to subjects within the jurisdiction of the StateError to the Court of Common Pleas of Dauphin county.

these subjects are persons, property and business.

See State Tax on Foreign Held Bonds, 15 Wallon by Paxsox, J. Filed November 20,

lace, 319; Maltby v. Reading & Columbia R. Co., 1882,

2 P. F. Smith, 146; McCullough v. State of MaryEach en party to this contention is dissatisfied land, 4 Wheaton, 316.

e judgment of the court below, and has ! It is undoubtedly competent for the Legislaits writ of error. We will first consider ture to lay a franchise or license tax upon forse as presented upon the Commonwealth's / eign corporations for the privilege of doing busi

The principal contention is as to the ex-ness within this State. The Act of 1869, P. L., ne Standard Oil Company is liable to taxa- | 83, to revise, amend and consolidate the several

der the several Acts of Assembly taxing laws regulating the licensing of foreign insurI corporations "doing business within this ance companies is such an act. It required a

on wealth.” The court below found the license and imposed a tax; heavy fines were fact tha

ut the company was doing business here; linflicted upon any such company doing business

rations

with the judgment of u taken its writ of e the case as present writ. The principale tent the Standard Oil Compan tion under the sever foreign corporations "a Common wealth." The c

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