5. That even if the defendant promised to return the purchase money after the sale to the plaintiff, and he had been put in possession, under the pleadings, the plaintiff cannot recover the amount in this form of action. Answer. This point is affirmed, but if the plaintiff gave up possession on the promise of Cox to pay the money back, that is a consideration. (Fifth assignment of error.)

After the jury had been for some time in consultation the court sent for them, and recharged them upon defendant's fifth point as follows: "Plaintiff cannot recover, in this form, for that contract, but it was evidence that he, defendant, thought he was wrong and that he made a valid contract to pay it back." (Sixth assignment of error.)

Verdict and judgment for plaintiff for $261.65. Whereupon defendant took this writ, assigning for error, inter alia, the admission of evidence and the answers to defendant's points as above

set out.

For plaintiff in error, Joseph L. Tull, Esq. This was an action on the case for deceit, while the testimony admitted went to show a new contract to return the purchase money. It was therefore inadmissible.

The charge of the court in answer to the fifth point was in effect to say that the defendant below admitted he was wrong, and to get out of it promised to pay the money back.

Contra, John Q. Williams, Esq.

The promise to return the money was part of the res gesta of the transaction tending to show the defendant's own conviction of the wrong of which he had been guilty.

Opinion by TRUNKEY, J. Filed May 22, 1882. The plaintiff avers that he was induced to purchase the lease, good wih, fixtures of a stable by false and fraudulent representations of the defendant. His action is upon an alleged tort; not upon a contract. To support it, he must show that the representation was untrue; was calculated to induce the plaintiff to act; and he, believing it, was induced to act accordingly. The representation must have been both false and fraudulent. A positive statement of a falsehood, or suppression of material facts which the plaintiff ought to have known, would constitute the falsity. As one of the questions relates to the defendant's good faith, if the jury believed that he honestly believed what he stated was true, the action would fail; for in such case the representation was not fraudulent. And if the plaintiff knew the truth of the matter, he was

not induced to purchase by the false representation.

In case for deceit, it is somewhat material that its requisites be established, and if any essential point be wanting, the plaintiff ought not to recover. Upon judgment in such action against the defendant, he is not entitled to the benefit of the statutes exempting property from execution of debt, and if he has no property, he may be arrested and imprisoned. That the defendant is indebted to the plaintiff upon contract, should not be used as a make-weight against him in a suit for his tort.

The evidence tended to show, and the jury must have found, that the defendant had made a prior sale of part of the property to Ranalls, who was in possession at the time plaintiff purchased. But there was also evidence tending to show that the sale to Ranalls was conditioned upon his giving security, which he failed to do. If the plaintiff believed that because of Ranalls' failure to perform the condition, the contract with him had ended, he was not guilty of deceit; though he might be answerable for breach of contract, if he failed to give possession to the plaintiff. The court affirmed the defendant's third point: "If the plaintiff knew of the claim of ownership made by Ranalls to the stable before he purchased from the defendant, then, under the pleadings in the case, the plaintiff cannot recover." We are not persuaded that the words added to its affirmance, "if you find that he knowingly bought it," did any injury, and the fourth assignment of error is not sustained.

The fifth and sixth assignments embrace the defendant's fifth point and the answer thereto: "That even if the defendant promised to return the purchase money after the sale to the plaintiff, and he had been put in possession, under the pleadings, the plaintiff cannot recover in this form of action." Answer. "This point is affirmed, but if the plaintiff gave up possession on the promise of Cox to pay the money back, that is a consideration. Plaintiff cannot recover, in this form, for that contract, but it is evidence that he, defendant, thought he was wrong, and that he made a valid contract to pay it back." We are of opinion that the point should have been affirmed without taking the pith out of it. The answer should be taken as a whole, for the court was entirely right in recalling the jury to give them any instruction which inadvertently had been omitted. Here the only inquiry is whether the instruction was right. If the plaintiff's case depended on a promise to refund the money, his action was wrong. The court charged that there was not

attachments after service. Subsequently the plaintiff withdrew the notes on which the judgments had been entered, and again entered them at No. 109 and 110 June Term, 1882, and upon these judgments issued execution attachments to June Term, 1883, and obtained judgments thereon, April 4, 1883.

It was objected to the first attachments issued: That they have lost their lien by laches of plaintiff in failing to duly prosecute them.

At No. 123 July Term, 1878, Nicholas Hack, and at No. 63 July Term, 1882, Wm. M. Simcox, respectively obtained judgment against Peter Wilkinson. On the former judgment execution attachment was issued, June 5, 1882, to No. 342 July Term, 1882, and on the latter execution attachment was issued April 17, 1882, summoning the executor of the will of John Wilkinson, deceased. No proceedings were had on these attachments after service. It was claimed, on behalf of these attachments, that they were entitled to precedence on account of the laches of Wailes in the prosecution of the attachments on his original judgments. To this it was answered, in support of the Wailes' attachments, that it is the service of the attachment which operates to give the lien, and that the law does not limit its duration; but that, if this is not true, the judgments taken on the second attachments issued by Wailes must give him precedence.

The executors advanced John W. Wilkinson moneys on account of his shares on the day of

—, 18—, for which they subsequently entered judgment and issued execution attachment on his share of the estate. Judgment in the attachment was obtained April 4, 1883. The executors also claim precedence (1) because of moneys advanced in distribution, and (2) because of judgment on their attachment.

Opinion by HAWKINS, P. J. Filed May 14, 1883. There can be no reason to doubt that in the distribution to be made here the proceeds of the sale of testator's land must be treated as personal estate. This is the necessary result of the direction given by the testator to the executors to sell. The conversion was not the less complete in contemplation of law, because the beneficiaries were given the privilege of taking the land instead of its proceeds; that is a privilege which they would have had without its expression in the will. Not having availed themselves of the privilege, they take the proceeds of the land sold as legatees: Jones v. Caldwell, 97 Pa. St., 42.

There is nothing in the Acts of Assembly, under which the attachments in this case were

issued, which limits the time within which the plaintiff shall proceed to judgment: Neely v. Grantham, 58 Pa. St., 433; Cookson v. Turner, 2 Binney, 453; Weber v. Carter, 1 Phila., 221; Gemmil v. Butler, 4 Pa. St., 232. The service of the attachment gives the lien, and the lien so obtained continues until the attachment is dissolved. There may no doubt be cases in which abandonment of an attachment would be implied from delay. But where even great delay is explained satisfactorily it will not have that effect: Cookson v. Turner, supra. There is a satisfactory explanation of the failure to proceed to judgment on the original attachments issued by Wailes. They were issued about the time named by the testator for the sale of his real estate; and as the proceeds must come into the Orphans' Court for distribution; and that court would have jurisdiction to determine all questions involved (Lex's Appeal, 97 Pa. St., 289), there could be no reason for incurring further costs than those of issuance and service of the attachments. If, therefore, the question of precedence turned upon delay, in prosecuting the original attachments issued by Wailes, there can be little doubt that he would be entitled. But there is a more serious question involved. It was held in Bank v. Mason, 4 Watts, 344, that the issuance of a second scire facias as an original evidenced an intention to abandon the first; and that not having been issued within five years from the entry of the judgment, the lien was gone. The same principle is applicable here. The second attachment was issued as an original and can be accounted for only on the theory of an intention to abandon the first. It was for the same debt and against the same fund. It was prosecuted to judgment, and the first was not. It is presented here as the judg ment of a court of competent jurisdiction; and as a judgment, cannot be attacked here by other claimants: Neff v. Barr, 14 S. & R., 166; Ulrich v. Vaneida, 1 P. & W., 245; Cyphert v. MeClune, 22 Pa. St., 195; Lowber's Appeal, 8 W. & S., 387. As both attachments cannot be enforced, and the debt thus collected twice, it must be assumed, under all the circumstances of the case, that the intention was to abandon the first. Why this intention was formed it is not necessary to inquire.

The right of one attaching creditor to contest the claim of another is undoubted: Reed's Appeal, 71 Pa. St., 378.

The executors are entitled to reimbursements for advancements made, as against subsequent, but not as against prior, attachments.

For attachments, Thomas Herriott, Esq.
For executors, William M. McElroy.

And now, 18th September, 1882, after argument and upon consideration, the court being of the opinion that the law is with the plaintiff, judgment is entered upon the case stated in favor of plaintiff, for one hundred and sixty dollars ($160) and costs of the suit.

To this order of judgment counsel for defendant excepted, and bill sealed for defendant, who thereupon took this writ, assigning the following for error:

1. The court erred in holding that the will of Robert H. Davis did not create a valid and effective trust in John Irwin, Jr., and Eliza C. Davis, in favor of his son, M. Swift Davis.

RICHARDSON v. GLOCKNER.

Courts lean in favor of sustaining mechanic's lien when the property is so described therein that those acquainted with the neighborhood are able to identify it. The mechanic's lien in this case was filed against "all that certain two-story brick stable, having a front of 20 feet and a depth of 88 feet, erected upon a lot situate in the Seventh ward, Allegheny, fronting 20 feet on the eastern side of East street, and extending back 250 feet to Locust street." Held, that the description was sufficient.

Error to the Court of Common Pleas, No. 2, of Allegheny county.

Scire facias sur mechanic's lien filed "against all that certain two-story brick stable or build

3. The court erred in entering judgment on the stated case in favor of the plaintiff.

4. The court erred in not entering judgment in favor of the defendant.

For plaintiff in error, Thos. M. Marshall, Esq. The reading of the will must convince any fair mind that the intent of the testator was to give the share of M. Swift Davis to trustees to prevent waste, or seizure by creditors. That

this is an active trust is equally plain. The

trustees are to act and use their own discretion in their actions.

It is, therefore, not open to question that this is an active trust: Rife v. Geyer, 9 P. F. Smith, 393, and other kindred cases fully cover this one. Contra, J. H. Baldwin, Esq.

In order to create a trust it is necessary to prevent the legal estate from vesting in the cestui que trust, and it is necessary that not only the legal title, but the primary use should vest in the trustee: Perry on Trusts, Sec. 304. If the legal and equitable interests happen to meet in the same person, the equitable is forever absorbed in the legal: Lewin on Trusts, *16. Not only is the legal title vested in the defendant in error, but he is also the sole beneficiary of the alleged trust. He is to receive all the proceeds. There is no deduction even for taxes and repairs.

Again, if this be a trust, it is without limitation. There is no devise over. Who shall take the estate or its proceeds when M. Swift Davis dies?

City, in the county aforesaid, and described as follows: Having a front 20×88 feet in depth, and is built upon a lot having a front of 20 feet on the eastern side of East street, and extends back eastwardly, preserving the same width 250 feet to Locust street, and the lot or piece of ground and curtilage appurtenant to said building."

On the trial, Andrew Spath, one of plaintiff''s witnesses, testified as follows: "I am acquainted with the Richardson property on East street; it fronts on East street and the back part on Locust;

they call it Buente street; the property fronts

on the eastern side of East street running back to Locust; Locust street begins on East street and makes a kind of angle about two hundred

and fifty feet from East street." In answer to the question, How far is the Richardson property from the junction of Locust and East street, witness replied: "The Hines property comes between and it is sixty feet in width on East street-I dont know how much frontage the Richardson property has, but it is about five or six hundred feet; it runs the entire length of Locust street. It runs from the Hines property and fronts on East street. The stable is located close to the Hines property and fronts on East street. The street back they used to call Locust street, they now call Buente street; they called it by the latter name about two years. Locust street runs the same way as East street. There is no other street that they call Locust street, that I know of further up East street; there is another Locust street on the other side of the hill above the Third ward school house. That doesn't run into East street at any place, and has nothing to do with that street that I know of; this property is in the Twelfth ward. The other Locust street would be, some in the Third

Judgment affirmed.

from the Third ward school house on the other side of the hill." It appears that when the