The opinion of the court was delivered, February 6th 1868, by
Sharswood, J.It is clear that James S. Kirk was an interested witness, and incompetent to testify on behalf of the plaintiffs below. They had been the plaintiffs in a judgment confessed by the witness and his partner Baum to them in trust for certain of their creditors. By a sheriff’s sale under an execution issued on this judgment they had become the purchasers of the personal property which was the subject-matter of this action of trover. Of course they could only hold it as trustees, and the witness Kirk had a direct interest in the property as a fund or means of paying his debts. His release could only reach his right to the surplus after the object of the trust had been accomplished, and left him still as directly interested as before in increasing or preserving the fund so as to discharge by means of it his personal liability to his creditors. The case of Wilkinson v. The Pittsburg Farmers’ and Mechanics’ Turnpike Company, 6 Barr 398, is an authority in point if one were needed. The determination of this question sustains the 1st and 3d assignments of errors, and renders unnecessary the consideration of th.e 2d, 4th, 5th, 6th and 12th, all which relate to evidence proposed and allowed by the court below to be given by this incompetent witness.
The 7th error assigned is in the admission of a notice by Mr. Parry, who was the attorney of the defendants below, addressed to the sheriff, claiming rent by them out of the proceeds of the sale. One of the questions in the cause was whether the subject-matter of the action, or some part of it, had been included in the levy, and passed to the plaintiffs below, and as the defendants *81rested their claim upon a subsequent purchase from the defendants in the execution, it was certainly material to show that they had notice of the sale. The objection seems to have been rested principally upon its being out of time, as the defendants’ case had not then been opened. But we do not reverse on account of errors or irregularities in the mere order of giving testimony. The plaintiff may, if he pleases, with the court’s permission, anticipate the defendant’s case and defeat it. The court in their discretion will regulate the order in which the evidence shall be given. But for a court of error to enter minutely into matters of that kind would be to intrude unnecessarily on the right of the court below, and to embarrass the administration of justice, instead of assisting it: Salmon v. Rance, 3 S. & R. 311; Harden v. Hays, 2 Harris 91.
The 8th error assigned is because the court rejected the evidence contained in the offer of the defendants below to inquire of the sheriff, who was under examination as a witness for them, whether he was ever down the slope or shaft of St. Clair Collieries, to be followed with evidence that a large part of the property included in the levy and sale was in the mines, and that the defendants below had purchased such part subsequently to the sale. , That it is essential to constitute a good levy under an execution that the personal property levied on should be in the power, or at least in the view, of the officer at the time it was made has often been held in this court, for which it will be sufficient to refer to Duncan’s Appeal, 1 Wright 500. It is in truth a relaxation of the rules of the English common law, which required actual and exclusive possession to be taken by him. The defendants below had then a right to ask this question, and that though the witness had before said that he had no recollection of having made the levy, which seems to have been the reason it was overruled, for they might afterwards be able to prove aliunde that he was mistaken — and in point of fact the deputy did afterwards testify that he was. Though he may have forgotten that part, he might well be able to say that-he had never been down the-shaft. This assignment of error is-therefore sustained.
The 9th error assigned is in the rejection by the court of an offer by the defendants below to show by their agent the condition of the mines when he took charge of them — that they were in an unworkable and dilapidated state, and would cost many thousand dollars to repair. This was entirely irrelevant to any question in the cause. The value of the personal property in the mines, which was the subject in controversy, had nothing whatever to do with the value or condition of the mines themselves. The court below was therefore perfectly right in rejecting it.
The 10th error assigned is that the court erred in rejecting *82evidence offered to be given by persons concerned in the working and sale of collieries, that the term colliery embraces all the movable property at the mines used or placed there to be used in the working of them, and that it has been so understood for twenty-five years by all engaged in mining in Schuylkill county. The words of the agreement under which the defendants below claimed the personal property were, “that Kirk & Baum and Baum, Ogle & Co. sell and assign all their interest in the Shaft and Slope Collieries to Henry C. Carey, Abraham Hart and Eliza C. Baird, the lessors in the lease.” If this evidence was admissible, it was certainly very relevant and important. Whatever objections may exist in general to evidence of particular customs or usages, it seems to be within the scope of all the cases, both in this state and elsewhere, to show by the testimony of persons engaged in any particular trade or business what is the meaning which belongs to a term or name given to any particular class of objects or property in such trade or business, when that term or name is used in a contract, whether written or verbal. Though the construction of written instruments is exclusively with the court, yet they cannot and are not expected to understand the meaning of all terms used in art, science or commerce. Experts then maybe called in, and the'question upon their testimony must necessarily be referred to the jury. Mr. Starlcie has stated the rule with great precision: “ Where terms are used which are
known and understood by a particular class of persons, in a certain special and peculiar sense, evidence to that effect is admissible for the purpose of applying the instrument to its proper subject-matter ; and the case seems to fall within the same consideration as if the parties in framing their contract had made use of a foreign language, which courts are not bound to understand Starkie on Evidence 701, 8th Am. ed. This doctrine has been recognised and admitted by this court in several cases. In Gordon v. Little, 8 S. & R. 533, it was decided that evidence of usage, fixing the construction of the words “ inevitable dangers of the river” in a bill of lading for the transportation of goods by inland navigation, is admissible, and under many important ■qualifications and restrictions, which it is unnecessary to state 'here, the principle has been admitted in Rapp v. Palmer, 3 Watts 178; Snowden v. Warder, 3 Rawle 101; Gilpin v. Howell, 5 Barr 41. We think, therefore, that this assignment of error is .sustained.
The 11th error assigned, is in rejecting evidence offered of the valuation of the Shaft and Slope Collieries in reference to their capabilities and value, and that the price mentioned in the agreement of December 16th 1861, was a full price for the lease, fixtures and all the movable property at the collieries. We think the court below were right in rejecting this evidence. The agreement re*83ferred to, was for the surrender of the collieries by the lessees to the lessors. So many considerations may have entered into the contract for getting rid of the tenants and regaining possession by the landlords to induce them to pay a high price for the surrender, that no inference could legitimately be drawn from it, as to whether the movable property on the ground, or in the mines, was intended to pass. Its only tendency would have been to mislead the jury.
These assignments of error comprise all the exceptions to the rulings of the court below on questions of evidence. Twenty points were presented, and there are twenty assignments of error on the answers to them. There are also nine additional exceptions and errors assigned to the charge. It will not be necessary to examine each of these assignments separately. Many of them relate to the same question, and it will sufficiently indicate our views in regard to each to consider the main points upon which the case went to the jury.
The principal question was, whether there was any evidence of a conversion by the defendant below, either by a tortious taking or a refusal on demand to deliver the property. The demand was made by Sedgwick, one of the plaintiffs below, upon Jones, one of the defendants, to whom, as the foreman of El. Hart & Co., Mr. Carey, another of the defendants, had delivered possession. When the demand was made on Jones, his answer was that he had received orders from Mr. Hart not to let anything be moved. It is true that an agent having received the possession of a chattel for his principal, is not bound to deliver it to the true owner; and a refusal by him, thus explained, would be no evidence of conversion. But then, as was held in Berry v. Vantries, 12 S. & R. 89, if this is the explanation of his refusal, it is incumbent on him to prove it. His declaration at the time that he was acting by the orders of somebody else, amounts to nothing. That may have been a mere trick to evade the demand, and if permitted to avail, might be resorted to by every defendant in trover. As to Jobes, therefore, there was evidence of conversion. In regard to the other defendants the case cannot-be rested on this ground. But there was evidence — in fact it was the defendants’ own case as attempted to be established by them — that they had purchased the goods from the defendants in the execution after the sale by the sheriff, of which there was evidence that they had notice. We must assume therefore, for the purposes of this question, that the defendants in the execution, whose title had prima facie at least been divested, had no right to dispose of them. If so, it is well settled that such a purchase by the defendants below, was itself a conversion: McCombie v. Davies, 6 East 538. “Certainly,” said Lord Ellenborough, “ a man is guilty of a conversion, who takes my property by assignment from another, who has no authority to dispose of it; for what is that but assisting that *84other in carrying his wrongful act into effect?” Hunt v. Gwennap, 2 Starkie 306; Bristol v. Burt, 7 Johns. 254. We think, therefore, there was evidence for the jury of conversion as against all the defendants.
The next question presented was, whether there was any evidence of title in the plaintiffs below. We think the learned judge was right in instructing the jury that when a partnership is carried on by two different firm names, a judgment against either firm will support an execution against the partnership effects, and the sale under it will pass the title of all the partners. If Ogle, Gross and Clark were dormant partners of the firm of Kirk & Baum, the non-joinder of them as defendants in the suit against the ostensible partners, could not even have been successfully pleaded in abatement: Alexanders v. McGinn, 3 Watts 220; Gow on Partn. 216; Collier, sect. 719. Much less can it be pretended that upon a judgment against ostensible partners in the firm name, the interest of the partners not named, will not pass to the sheriff’s vendee: Taylor v. Henderson, 17 S. & R. 453; Harper v. Fox, 7 W. & S. 142; Grier v. Hood, 1 Casey 430.
As to the question of the sufficiency of the levy, the court refused to affirm the points of the defendants below, and instructed the jury that the receipt by them of the sheriff of rent out of the proceeds estopped them from denying that the title had passed under it. It is unnecessary to decide the broad question whether a landlord-receiving rent out of the proceeds of goods on the demised premises levied on and sold under an execution against the tenant is estopped from denying the title of the sheriff’s vendee. In this case the question was only whether as to part of the goods alleged to have been sold, there ever had been a legal levy. A mere paper levy is no levy at all, and a sale under it is a nullity as to subsequent execution-creditors and purchasers: Lowry v. Coulter, 9 Barr 349. A man might have his bed sold from under him, by that means, without his knowing it. There was here a considerable amount of personal property levied on, but the sheriff added to the inventory “ all other personal property in, about and connected with said colliery,” and without having ever gone down into the mines or seen the property, he sold under that description, and left the whole in the possession of the defendants in the execution, from whom the landlord afterwards purchased it. The proceeds of all the goods amounted to $3605.25 — what was sold under the general designation $21. The landlords received $184.47, out of the entire proceeds for rent. That part of the goods which was duly levied on and sold was ample for the rent. They must be presumed to have received it out of that. The principle of estoppel was inapplicable to such a case, and we are of opinion, therefore, that the court erred in their charge to the jury on this point.
*85It is hardly necessary to say that the 7th point, which requested the court to take the entire case from the jury, was properly declined : and so was the 16th point, that if the jury believe that the sheriff’s sale was intended to hinder, delay or defraud Henry C. Carey,, one of the landlords, and a creditor of Kirk & Baum, then the sale is null and void against the said Henry 0. Carey, and the plaintiffs cannot recover: for Mr. Carey, claiming by assignment from one of the parties to the alleged fraud, if any existed, was in no position to make such an objection: McGee v. Campbell, 7 Watts 545. Neither was there any error in declining to affirm the 17th point, that the sale by Kirk, Baum, Ogle, Clark & Gross to the defendants below of all their interest in the shaft and slope collieries “ included all the movable property belonging to and used at these places in the mining of coal, and that the word colliery is a collective compound including many things, and is not limited to the lease and fixtures of a tunnel, drift, shaft, slope or vein from which the coal is mined.” According to the most approved lexicographers, to whose works courts must resort for the meaning of words which have no settled legal construction, a colliery is “a place where coals are dug:” Johnson, Webster, ad verbum. No question appears to have been raised as to whether the articles in dispute were or were not fixtures. It is probable that many things about a colliery, though not actually affixed to the freehold, may come within that category, like the rolls of an iron-mill, or the machinery of a manufactory, whether fast or loose, which is necessary to constitute it, and without which it would not be a mill or manufactory at all: Voorhis v. Freeman, 2 W. & S. 116. But the mere loose movables about such an establishment, in the absence of any usage or general understanding, would no more pass than would the tools of a mechanic by the sale of his shop.
We are of opinion that the 39th assignment of error is sustained, and that the court erred in saying to the jury, “ Upon the whole ease we think the plaintiffs are entitled to recover.” There were questions of fact to be passed upon by the jury before this result could be aimed at. And while the court were right in the abstract in their charge upon the measure of damages, yet, when they added that “ the jury are justifiable in going further when there has been an outrage in the taking, or vexation or oppression in the detention, as a compensation to the party injured,” they ought to have accompanied this remark with an instruction that there was nothing in the case, as there certainly was not, to justify them in applying any other than the ordinary rule.
We believe that we have thus reviewed all the exceptions taken and points made in the court below, and upon the whole are of opinion that there has been manifest error.
Judgment reversed, and venire facias de novo awarded.