Winchester v. Bennett

The opinion of the court was delivered, by Strong, J. There is real difficulty in this casé arising from [513] the fact that the record does not show precisely what legal question was reserved. In seeking for it the only guide we have is the opinion of the court given when judgment was entered for the defendants non obstante veredicto, and all that we find there is a statement of the facts in evidence, not as found by the jury, and not as agreed to by the parties, but as the judge thought they substantially were. After thus reciting the case as he understood it, he added “ the plaintiff contended that it was a sale of personal property, and that the evidence showed no such change of possession as would justify the purchaser in claiming adversely to execution-creditors, and that under the undisputed evidence it presented a case of fraud in law.” He then proceeded to state that the court reserved that point, ruling -it pro formá with the plaintiff, subject to the agreement of the parties to enter judgment for the defendant non obstante veredicto, if the view of the court upon the law upon argument thereafter should be different.” All this may have been understood at the trial, but it shows nothing definite to us. As ought to have been expected, the argument before us has been a controversy in regard to the facts, and we have been asked to look at the evidence, rather than at any state of facts established by verdict or by agreement. If the transaction between Fender and Mitchell and Bennett was as the court inferred it to have been, a license to Bennett to take coal from Fender’s land, the judge was undoubtedly right in the principles of law which he applied. But how could he know that such was the character of the arrangement? Certainly in no way, except by his drawing conclusions of fact from the evidence. Nothing on the record shows it; even the evidence, as we have it, is not certified. And if it be taken as stated in the paper-books, it is by no means certain that under the arrangement, Bennett became the owner of the coal mined before it was taken out of the shaft and delivered at the stocking-ground. Taking the order of Fender to Mitchell in connection with Mitchell’s testimony, it was not to be pronounced as a conclusion of law, that title to the coal passed to Bennett before its delivery at the place appointed. It may have been thus, but nothing less than a verdict or an agreement of parties can determine it. The law in regard to the reservation of questions is clearly set forth in three cases reported in 35 Penna. State R.: Clark and Shaw v. Wilder, p. 314 ; Irwin v. Wickersham, p. 316 ; and Wilson v. The Steamboat Tuscarora, p. 317. Under the Act of Assembly of March 5th 1835, Pamph. L. 90, and the Act of 22d of April 1863, Pamph. L. 554, it is only questions of law that can be reserved. In Irwin v. Wickersham, it was ruled that if a point of law is to be reserved, it must be done by stating on the record the facts on which it arises, and that without such a statement on the record a court is not authorized to enter judgment non obstante [514] veredicto. The judgment in this case was therefore erroneous, and the case must go back to have the facts found and the law applied to them when found. It may be that this will not benefit the plaintiff in error. If the jury shall find that Bennett, by himself or an agent, took the coal out of Pender’s land, under a license so to take it, of course the plaintiff cannot recover. And if, on the other hand, the first delivery of the coal was agreed to be made on Pender’s stocking-ground, and the owner’s right did not pass until such delivery, it does not necessarily follow that the coal was liable to seizures at the suit of Fender’s creditors. In regard to this,' however, we now express no opinion. For the present we decide no more than that no question was properly reserved. Judgment reversed, and a venire de novo awarded.