was employed; that is, a retainer must have been was understood by both that Brook and Danspaid or an agreement entered into between them field were advising the plaintiff, and that the for the payment of compensation to the attorney. Seip's Estate, Probst's Appeal, 163 Pa. 423.

plaintiff, was going to act in her capacity as mortgagee, on the footing and faith of their valuation and of their being her advisers. . . . . It April 12, 1897. MITCHELL, J. At the close of was contemplated, according to what, as I said the plaintiff's testimony defendant moved for a before, was a usual custom, that the costs of the non-suit on three grounds, (1) there was no evi- valuation, if the proposed loan was effected, dence of the relation of attorney and client, (2) should be borne ultimately by the mortgagor; there was no evidence of negligence, fraud or but to my mind it is clear that Brook and Danscollusion, and, (3) there was no evidence of any field were asked to make the valuation, to their damages sustained by the plaintiff. The Court knowledge as valuers, on behalf of the mortentered a non-suit and in refusing to take it off gagee, not the mortgagor." On appeal this was dwelt principally upon the failure to establish the affirmed by the Lords Justices, 64 Law Times relation of attorney and client between the parties, but we must of course assume that all three of the grounds were considered.

N. S. 674. So in Wittenbrock v. Parker, 102 Cal. 93, the custom was recognized, it being said "the burden cast upon the mortgagor of paying The payment of a fee is the most usual and for the services of the attorney selected by Bithweighty item of evidence to establish the rela- ell (the mortgagee), to guard his interests, was tionship of client and attorney, but it is by no simply a condition of the loan, and did not alter means indispensable. The essential feature of the status of such attorney or diminish the duty the professional relation is the fact of employment or responsibility which he owed to his employer." to do something in the client's behalf. There In the present case it is undeniable that the must be an agreement, express or implied, for compensation, but whether payment is made in part or in whole by retainer in advance is not material. Nor is it even indispensable that the compensation should be assumed by the client. Ordinarily it is so from the nature of the employment which in the vast majority of cases involves the guarding or enforcement of the client's interest against an adverse one, and is therefore exclusive. But even adverse interests if to be amicably adjusted may be represented by the same counsel, though the cases in which this can be done are exceptional and never entirely free from danger of conflicting duties. In matters of the present kind it is not uncommon, in many places, The defendant unquestionably acted to some including some at least of the counties of this extent for and in behalf of the plaintiff. After State, for the same counsel to represent both the money was paid over he kept the mortgage borrower and lender, upon mortgage or similar which was then the property of plaintiff, and he security, although the former only is expected to put it on record. In so doing he was clearly actpay the fees. In Scholes v. Brook, 63 Law Times ing for plaintiff, and if he had negligently deN.S. 837, plaintiff had invested money on mort- layed recording until a subsequent judgment or gage relying on the opinion of "valuers," and other encumbrance slipped in ahead of it, there the property proving inadequate, she sued the can be no question that he would have been liavaluers for negligence. ROMER, J., said, "No ble for the negligent performance even of a duty doubt in this case, as is common, the costs of voluntarily assumed. But there was evidence Brook and Dansfield's valuation were intended that he did more for plaintiff than put the mortto be paid by the mortgagor, just as the costs of gage on record. Lawall testified that he told dethe solicitors employed by the mortgagee were fendant "to search the title and the records in expected to be paid by the mortgagor in the sense reference to liens," and that "he said he would," that they would be paid out of the money ad- and more to the same effect. The presumption vanced; but that does not determine the relation is that this was done in behalf of plaintiff. To between the parties. I am satisfied on the evi- Roberts, the borrower, the priority of other endence that, as between Brook and Dansfield on cumbrances was of no concern with regard to the one hand and the plaintiff on the other, it this loan, except as bearing on plaintiff's will

defendant was acting for Roberts, the borrower, from whom he received his compensation, and to whom alone, upon the manifest understanding of all parties he was to look for it. But that fact does not of itself prevent the relation of attorney and client between plaintiff and defendant if such was the mutual understanding. There was no evidence of custom in that respect, and the Court below might not be able to say as matter of law, certainly we cannot, that such was in fact the custom. But outside of the existence of any general rule there was evidence from which the jury might have inferred that such was the understanding of these parties in this particular case.

ingness to advance the money, but to plaintiff it it for clear law that defendant . . . . . subjected was a material fact as part of the inducement or himself to an immediate action, in which the consideration for risking the investment. plaintiff may recover compensation for all she has lost, and all she is likely to lose through his misconduct."

We are of opinion, therefore, that there was sufficient evidence to submit to the jury on the existence of the relation of attorney and client in the case.

The cases have usually arisen on the statute of limitations, and it has been uniformly held that But the non-suit was also erroneous for an- the right of action is complete so that the statute other reason. Independent of the relation of at- begins to run from the breach, although the damtorney and client, there was evidence, already age may not be known or may not in fact occur noticed, that defendant undertook certain duties until afterwards. In Moore v. Juvenal, 92 Pa. for the plaintiff. The learned Judge rightly says 484, it is said by the present Chief Justice, "Where that collusion or fraud could not be found on the the declaration alleges a breach of duty and a evidence in the case, but this does not include special consequential damage, the breach of duty liability arising from negligence. The principle and not the consequential damage is the cause of Coggs v. Bernard, 1 Smith's Lead. Cases, that of the action, and the statute runs from the date one without reward, is responsible for misfeasance, though not for non-feasance, has been generally adopted. If, therefore defendant knowing that plaintiff was relying on him in his professional capacity to see that her mortgage was the On the question of damages the plaintiff's case first lien, although Roberts was to pay the fees, was weak. The statement avers that the propundertook to perform that duty he was bound to erty is "not worth more than twelve hundred do it with ordinary and reasonable skill and care dollars." The witness Yeager thought it would in his profession, and would be liable for negli- be "cheap at ten or twelve hundred dollars," and gence in that respect. Dr. Fegley, the owner of the first and second

of the former, and not from the time the special damage is revealed or becomes definite." See also Lilly v. Boyd, 72 Ga. 83, citing our own case of Rhines v. Evans, 66 Pa. 192.

The argument for the third ground of non-suit, liens testified that the property had "rather inthat it has not yet been shown that plaintiff has creased during the last two years." That is about suffered any damage, would not be without force all there is on the subject. But although it is if the question were new, inasmuch as she took meagre we cannot say that it is not enough to the mortgage as security only and the mortgagor go to the jury. If they should find the security when called upon may pay the debt, or the mort- worthless, and the Court in view of the fact that gage being sued out the property may bring the verdict must necessarily be based largely on enough to cover it. But the law is settled the opinion on that point, should have any doubt on other way. Plaintiff is entitled to the security the subject, its powers are sufficient to prevent she contracted for, and may recover the differ- injustice to the defendant. In Green v. Dixon, ence in value between that and what she actually 1 Jurist, 137, a similar action against an attorney got. The cause of action is the breach of duty, for taking an insufficient security, Lord ABINGER not the damages, which are only an incident. having indicated his opinion that plaintiff had Miller v. Wilson, 24 Pa. 114, was very similar made out a cause of action, a verdict was rento the present case. The plaintiff had judgments dered for plaintiff for the amount advanced, he which were a lien on certain real estate, and undertaking to convey the security taken to any agreed with a purchaser of the latter to accept one appointed by the defendant. The equity his bond secured by mortgage on the land. De- powers of Courts even in suits at law in Pennfendant was employed as attorney to carry out sylvania are ample to protect the defendant in the the agreement, and in that capacity satisfied plain- same or equivalent manner. tiff's judgments, but neglected to have the mort- The offer contained in the third assignment gage recorded until other judgments were enter- was clearly incompetent. There was no evidence ed ahead of it. In meeting the point now made, as the learned Judge said, of collusion or fraud, Chief Justice BLACK, said, "The argument is that and nothing to make the declarations of Robplaintiff has not as yet suffered any actual loss erts evidence against defendant.

she can

from the defendant's violation of duty; and that| The fourth assignment, however, must be susrecover from Miller (defendant) only tained. The authority of Edgar Lawall from his in case Carson (mortgagor) make default; be- sister to pay over the money was a fact to which cause the mortgage being but a security for the he could testify. Though agency cannot be bond there is nothing due on the former until proved by declarations of the alleged agent yet the condition of the latter is broken. But we hold he is a competent witness to prove it, and his

testimony cannot be restricted to the mere words claimed that the lapse of two return days after used by the principal, but is admissible generally the issuing of the first two writs of fieri facias on the whole subject. and the fact that the sheriff did not take the Judgment reversed and procedendo awarded. goods into his actual custody as commanded by the writs, caused the liens of these executions to be postponed. The auditor found that the first and second executions were not postponed but were prior liens.

Oct. '96, 71.

W. D. N.

Supreme Court. October 29, 1896.
Gillespie v. Keating.

Priority of lien of writs of fieri facias-Delay in
enforcing by sheriff-When not at the instance
of creditor, his lien not lost.

A fieri facias sur attachment execution is inoperative to seize goods in the hands of a garnishee which were seized on a fieri facias sur judgment against the assignor before the assignment was made.

Exceptions were filed to his finding, but were dismissed by the Court, WHITE, J., dissenting. The Western Electric Company appealed from the decree of the Court and assigned this action

as error.

A. Leo Weil, (C. M. Thorp with him), for appellant.

The legitimate end of an execution is to have the money at the return of the writ, etc., and with this end an indefinite postponement of the sale Where the execution creditors have had no part in the is inconsistent. If sale be postponed for ten days delay of the execution of a fieri facias in the sheriff's hands, the lien of the writ is not lost as against the de- it is not inconsistent with making the money on fendant when it appears the delay was at his instance and the same writ, and, therefore, not a ground of for his accommodation. presumption that anything else was intended. Such a measure may even be indispensable to the Appeal of the Western Electric Company, creditor's interest, as it may enable the sheriff to from the decree of the Common Pleas No. 2, of Allegheny County, dismissing the exceptions to the report of an auditor appointed to make distribution of a fund in the sheriff's hands. arising from a sale upon an execution upon a judgment wherein T. A. Gillespie was plaintiff and A. F. Keating defendant.

The facts of the case as found by the auditor, John D. Shafer, Esq., were as follows:

sell for a better price. If the adjournment were to a time beyond the return day, when no sale could be made on the writ, it would be equivalent to an indefinite postponement and a badge of fraud.

Lantz v. Worthington, 4 Pa. 153.

Goods levied on should in a reasonable time thereafter be taken possession of by the officer of

On July 10, 1894, the plaintiff, T. A. Gillespie, the law in such a manner as to apprise everybody issued a fieri facias against the personal property that they have been taken in execution. . . of the defendant, A. F. Keating. On the 22nd Possession and control remaining after levy as of August, in the same year, Hoffman Brothers before and private sales are both in contravenissued execution against the same goods. The tion of the law, and when they result from arsheriff levied, but left the goods in the store of rangements made by the execution creditor, he the defendant and the defendant carried on his will be postponed to a junior execution. Such business as he had previously to the levies. arrangements are so evidently for the benefit of On December 3, 1894, the Western Electric the debtor rather than the means of collecting Company, having a judgment against one Living- the debt according to law and the exigence of the ston, issued an execution attachment against the writ, and they present such strong temptation to defendant Keating. On the 22nd day of Decem- do wrong, not only in making sales, but to carry ber, 1894, the defendant made an assignment of off and conceal the property, that the law forall his property for the benefit of his creditors to bids them altogether, not alone for fraud in fact, Jacob A. Keating. On the 29th of December, but as being a fraud in law. judgment was entered in the attachment case Parys & Company's Appeal, 41 Pa. 273. against A. F. Keating, garnishee, and on the 31st of December, 1894, a fieri facias was issued on this judgment. The sheriff sold the goods and the money was paid into Court.

The auditor found that the first and second writs of fieri facias were, by reason of their priority, entitled to the fund unless they were found

An execution creditor must look to the sheriff for a faithful execution of his process according. to the terms of his writ and the statute; and if he proceed, not according to its terms, then he should look to him alone.

Earl's Appeal, 13 Pa. 483.

E. G. Ferguson, (J. S. Ferguson with him), for

to be postponed. The Western Electric Company T. A. Gillespie, appellee.

The finding of an auditor based upon suffi- of the sheriff based on the solicitation of the cient evidence, and approved by the Court will debtor, and intended to enable the latter to pay not be reversed.

Lewis' Appeal, 127 Pa. 127.

An execution levied on personal property will not be postponed by mere delay on the part of the officer, without any direction from the plaintiff. McCoy v. Reed, 5 Watts, 302. Cathcart s Appeal, 13 Pa. 422. Brown's Appeal, 26 Id. 490.

Stroudsburg Bank's Appeal, 126 Id. 523.

his debts without a judicial sale of his property. Prior to the assignment the execution creditors

might have complained of the delay and possibly have instituted proceedings to put an end to it, but no one else could. After the assignment and the sale of the property the general creditors were in a position to claim the fund upon proof that the levies were collusive and fraudulent as to them. But no general creditor could acquire

Frank Whitesell, (W. W. Whitesell with him), priority over the others by issuing an execution for Hoffman Bros., appellees.

and levying upon the property, after a valid assignment for the benefit of all the creditors had February 15, 1897. MCCOLLUM, J. We agree been made and the property had passed under the with the learned Court below that the sale was not control of the assignee. This is precisely what made on the Western Electric Company's writ. the Western Electric Company seeks to do. Its The auditor did not find that it was, but he said contention is that the fund realized by the sale "presumably it was advertised on all the writs." belongs to it or to the prior execution creditors The sheriff's return showed a sale on the Gilles- and its effort is to postpone the latter for its expie writ, but it did not show a sale on the writ of clusive benefit. No general creditor as such is the Western Electric Company. The evidence on contesting the validity of the levies made on the this point was that the sheriff refused to sell on Gillespie and Hoffman writs or the claims of the the latter writ without a bond of indemnity, that plaintiffs in them to the fund. the bond was furnished to him and that before The evidence is clear and convincing that the the sale he surrendered it to the company. The executions issued before the assignment were defair inference from this evidence is that the com-livered to the sheriff with directions to make the pany abandoned its purpose to sell, and deter-money upon them; that these directions were not mined to rely on its levy. It offered no explana- countermanded or modified by the parties, and tion of the surrender of the bond, nor evidence that they were repeated more than once by the to show that the sale was made on its writ. As plaintiff in the first execution. The plaintiffs in the this writ was issued on a judgment obtained after executions are thus exonerated from responsi the assignment for the benefit of creditors was bility for the delay in making the sale, and if made the sheriff was justified in refusing to sell they lose by it their loss is chargeable to the upon it without indemnity. The assignment be- sheriff's disregard of their positive instructions. ing valid passed the title to the property to the No case has been cited which can be justly likenassignee subject only to the antecedent liens. ed to the one before us, or which furnishes a If there were no such liens upon it a seizure and clear warrant or precedent for the decree consale of it on a writ issued on a subsequent judg-tended for on this appeal.

In Earl's Appeal, 13

ment would have subjected the sheriff to a liabil- Pa. 482, the Court found from the evidence that ity to the assignee for the full value of it. We think the plaintiff "did not put his execution in the that under the circumstances the supposition of hands of the sheriff with a bona fide intent that the auditor that the sale was on all the writs was he should proceed and make the money accordunwarranted. On this point Judge WHITE agreed ing to law." In Weir v. Hale, 3 W. & S. 285, it with his associates, although he dissented from was the arrangement between the first execution the decree because it did not give the fund to the creditor and the defendant which was adjudged assignee for the benefit of creditors. It may to give the subsequent executions priority. These also be stated in this connection that they agreed with him and the auditor that if the liens of the from the case at bar. That they have not been cases are plainly distinguishable in their facts prior levies were lost by the laches of the sheriff the fund should be awarded to the assignee. Reed, 5 Watts, 302, is shown by McGinnis v. considered heretofore as overruling McCoy ". Were the liens so lost? Certainly not as against

the defendant in the judgment at whose instance Prieson, 85 Pa. 116, in which it was said that "an and for whose accommodation the sale of the execution will not be postponed for the officer's property was postponed. The execution credi- default. His procrastination even by the suffertors had no part in the postponement and there ance of the creditor is not fraudulent per se and was no taint of actual fraud in it. It was the act postpones only when the creditor directs him not

to proceed." In the case now under considera- Appeal of Terence J. Donahue, plaintiff, from tion the auditor's findings of fact approved by the judgment of the Common Pleas No. 1, of the Court, furnish an adequate basis for the de- Philadelphia County, in an action of trespass, cree appealed from, and they appear to be well wherein Thomas C. Kelly was defendant. sustained by the evidence.

On

On January 3, 1894, the defendant was the proThe Western Electric Company is not in the prietor of an oyster saloon on Sixth street, below position of an execution creditor having a levy Cherry street, in the city of Philadelphia. before the assignment. It does not dispute the that day, between two and three o'clock in the validity of the assignment and it has acquired afternoon, the plaintiff, and a friend named Gorby its levy no priority over the other creditors or don, entered the saloon and ordered two stews. standing to contest the preceding levies. What- There were two men, waiters, in charge of the ever rights it had respecting these levies were saloon, Monaghan and Claggett. There was also those of a general creditor and exercisable under a woman cook. The kitchen was in the rear bethe assignment. In Missimer v. Ebersole, 87 Pa. yond the saloon. The stews were served. A fire 109, it was held that there could be no valid levy was then discovered in a closet back of the counmade on a writ issued after the assignment. ter, and about midway of the saloon, and the two The specifications of error are overruled. men, Monaghan and Claggett, endeavored to put Decree affirmed and appeal dismissed at the it out. They put water on the fire, and aftercosts of the appellant. wards put salt on it. Meanwhile plaintiff having finished eating, went across the room to the counter to pay for the stews, and handed a $5 note to Monaghan, one of the employees, and the latter March 24, 1897. handed it to Claggett, the other employee, to make change. While Claggett was trying to make change, the fire increased, and a flame was seen in the closet. The flame was from a gasoline lamp, such as are commonly used in front of stands and stores throughout the city.

Jan. '96, 609.

Supreme Court.

W. D. N.

Donahue v. Kelly. Negligence —Accident—Gasoline explosion in restaurant-Customer struck by exploding gasoline lamp thrown by waiter-Proximate cause—. -Position of sudden danger-Res ipsa loquitur-Act of May 15, 1874.

It is not negligence per se to have gasoline about a building.

Q.

The plaintiff testified, on cross-examination: Q. When you got up to pay did you go where it is indicated the desk stands-where the cashier is, where it says "to pay?" A. A little up I went. While a customer of a restaurant was waiting for change When was it you first saw this fire that day? at the counter a flame was noticed by the waiters in a re. A. I did not see the lamp at all. Q. You never cess, caused by a lighted match falling upon the floor into saw that until it was hurled past you? A. Just gasoline which was flowing from a defective lamp; the flame grew larger, and efforts were made by the waiters as it got into a large flame some one took it up to put it out by throwing salt and bags on it. The cus- and hurled it. Q. Didn't they, while you were tomer waited several minutes for the change, not knowing standing there, call your attention to the lamp, what had happened. Without warning him, a waiter that it was burning there? A. No, sir. picked up the burning lamp and threw it toward the door; had no conversation with the cashier there at all Q. You the lamp immediately exploded, and struck the customer, who was severely burnt. There was some evidence that in that respect? A. Yes, sir. Q. What conversathe waiter who threw the lamp was being burned. In an tion did you have? A. The man threw salt on it action to recover damages, brought by the customer: Held, (1) that the proximate cause of the injury to the and I could not imagine what it was because the customer was the result of the throwing of the lamp, and lady stood on the end of the counter. I thought not any negligence of the waiters in endeavoring to ex- it was a match or something and I says "there is tinguish the flames in the recess. (2) That the throwing a bag there?" Q. What did you mean to do with of the lamp, under the circumstances, by the waiter, was the bag? A. Put it out. Q. Put the fire out? an act of self-preservation, and a non-suit was properly entered. A. I did not see any fire then. Q. But you heard

One who, in a sudden emergency, acts according to his them speak about it? A. Yes, sir. Q. Didn't best judgment, or who, because of want of time in which you say to put salt on it? A. No, sir; the man to form a judgment, omits to act in the most judicious making change said that. Q. You saw manner, is not chargeable with negligence. Though a the bag there? A. Yes, sir. Q. Did they mistake, such faulty act or omission is not carelessness.

throw the bag on it? A. That I could not say. Q. How long after that before they threw the lamp out? A. Just a second, I suppose. The first thing I saw were flames going past me. Q. you do not say that the man took the lamp in