The opinion of the court was delivered May 9th 1868, by
Agnew, J.
This action of replevin has peculiar features. It was brought against the Susquehanna Boom Company, and this is the first thing to be noticed. It is an incorporated company, authorized to erect and maintain in the West Branch of the Susquehanna an artificial barrier, called a boom, composed of piers and timbers, to intercept and secure the floating logs and lumber driven down the stream. Its duty is to keep guard by day and night, so that no lumber shall escape; to raft all logs and lumber out of the boom securely and faithfully, and secure them below for the owners, and for this service to receive certain tolls and charges. To guard the public against imposition, all logs rafted out of the boom shall be counted and measured by a competent person appointed by the Court of Common Pleas of Lycoming county. The owners of the logs, &e., are required to mark them well, for identification, before they are set afloat, and to register their marks on the books of the company. The boom thus becomes the receptacle of innumerable logs, amounting to millions of feet annually. The logs are-sent adrift by their owners in the upper regions of the river and its tributaries, and many are stranded by the way. Those arriving lie in the boom in confused masses, piled and submerged, and how many of each owner’s “ drive” are caught, no one can tell, until they are rafted out below and identified by their marks. Such is the party against whom the replevin issued, a bailee of the logs of many owners, unnumbered and unknown at the time of the issuing of the writ. The plaintiffs, conscious of these facts, and founding their estimate on the number of feet “ scaled” or measured to them on the river above, issued their writ for 329,760 feet of white-pine saw-logs, more or less, marked or stamped “E” on the end of each log, of the value of $15 per 1000 feet. Anderson Harvey, who claimed the same logs under a prior contract, and whose mills must stop if he failed to obtain his usual supply, procured a “ claim property bond,” to be given by the boom company, and was afterwards admitted as a co-defendant, to defend his interest. The return of the sheriff was “replevied as within commanded. Defendants gave bond and retained property.” The defendants [pleaded non cepit and property, and on the trial offered to prove by the boom scaler and others that the quantity of logs marked “E” in the boom at the time of the issuing and service of the writ was unknown to both plaintiffs and defendants, and could not be ascertained by any human means until they were rafted out and “ scaled” (that is, the quantity computed by a scale or table of measurement as applied to the dimensions of the logs), and to follow this by proof [206]*206that they were afterward rafted out and counted and measured by the boom scaler, appointed according to law, and that the real quantity as thus ascertained did not exceed 238,000 feet. They offered to prove also that about 50,000 feet of the logs in eontrovesy never arrived at the Susquehanna boom, but were stopped above at the Lock Haven boom, and there sawed and delivered to the plaintiffs; and that about 30,000 feet of the same lot of logs had escaped out of the Susquehanna boom before the issuing and service of the writ, and were taken up below, manufactured and converted by the plaintiffs to their own use after the issuing and service of the writ. They further offered to prove by the same officer and others how many of the logs marked “E” had been rafted out of the boom and delivered to Harvey before the issuing and service of the writ. All these offers were rejected on the ground that by the claim of property and return of the sheriff the defendants were fixed for the 329,760 feet of logs stated in the writ. Knowles v. Lord, 4 Wharton 500, and kindred cases are cited in support of this ruling.
In the view we take of the case before us, we do not intend to impugn or to shake in the least degree the doctrine of that case ; that a defendant in replevin, who claims property in the goods mentioned in the writ, retains them and gives bond for their return and for indemnity, if the property in them be adjudged against him; conclusively admits possession of all the goods, and will- not be permitted to contradict the return of the sheriff that the identical goods mentioned in the writ were left in his hands. But if the principle of an ordinary case of replevin, such as that was, should be applied to this ease, it would require us to use a mere legal presumption adopted for the furtherance of justice to work the grossest wrong, contrary to the palpable facts and against the common understanding of all the parties and the sheriff himself. When the plaintiffs issued the writ against the boom company, they knew its character and purpose, and that, in the language of the offer, by no human means could the quantity of logs marked “E” be ascertained in the boom until they were rafted out and measured. Mixed with innumerable others, submerged, embedded in the mud, piled and heaped together, and filling the river for a mile or more, no human power could reach them until one after another they were loosened below,, and floated out. Had the sheriff gone with his writ to deliver possession to the plaintiffs, what could he do ? They could not show him their logs and he could not find them. Well knowing these things, the plaintiffs did not issue' their writ for a certain number of logs, but for 329,760 feet of logs more or less. What kind of feet were they— lineal or cubic? How many feet more, than 329,760, or how many less were there? This number of feet it appears means inch board measure. How many logs were there throughout which [207]*207this number of feet was distributed ? All these questions should be definitely answered, before we can fix the defendants conclusively for 829,760 feet, by board measure, contained in an unknown number of logs. How can we say conclusively that, “Replevied as within commanded — defendants gave bond and retained the property,” means that the defendants had in their possession a certain number of logs containing this specific number of feet ? The return independently of the writ asserts no number and proves none, while the writ itself is vague and uncertain. It specifies no certain numbpr of logs, and no specific number of feet, but an uncertain number of feet in an unknown number of logs. When we view the character of the boom company, the nature of its duties imposed by law, the impossibility of determining the number of the logs in the boom, the means adopted by law to ascertain, through an impartial officer, the extent of the company’s liability and its claims for tolls and charges, and then look at the vague character of the writ and return, and the knowledge of all parties of the state of the case, we must perceive at once that neither the sheriff nor the defendants had any idea that a claim of property and bond could apply to a certain number of logs or a fixed number of feet, but that they .were intended to cover' and secure what in the due course of the operations of the boom company should be found to be in its possession. We can conceive of no ranker injustice than to fix upon the defendants, by a forced presumption, a specific liability for the very logs that went into the hands of the plaintiffs, and which never came into the boom or had gone out of it before the writ issued. The indefiniteness of the writ and return, and the circumstances by which we distinguish this case from Knowles v. Lord, are not wanting in analogies, where a similar vagueness and want of precision have formed the ground of exceptions to the general rule.
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The opinion of the court was delivered May 9th 1868, by
Agnew, J.
This action of replevin has peculiar features. It was brought against the Susquehanna Boom Company, and this is the first thing to be noticed. It is an incorporated company, authorized to erect and maintain in the West Branch of the Susquehanna an artificial barrier, called a boom, composed of piers and timbers, to intercept and secure the floating logs and lumber driven down the stream. Its duty is to keep guard by day and night, so that no lumber shall escape; to raft all logs and lumber out of the boom securely and faithfully, and secure them below for the owners, and for this service to receive certain tolls and charges. To guard the public against imposition, all logs rafted out of the boom shall be counted and measured by a competent person appointed by the Court of Common Pleas of Lycoming county. The owners of the logs, &e., are required to mark them well, for identification, before they are set afloat, and to register their marks on the books of the company. The boom thus becomes the receptacle of innumerable logs, amounting to millions of feet annually. The logs are-sent adrift by their owners in the upper regions of the river and its tributaries, and many are stranded by the way. Those arriving lie in the boom in confused masses, piled and submerged, and how many of each owner’s “ drive” are caught, no one can tell, until they are rafted out below and identified by their marks. Such is the party against whom the replevin issued, a bailee of the logs of many owners, unnumbered and unknown at the time of the issuing of the writ. The plaintiffs, conscious of these facts, and founding their estimate on the number of feet “ scaled” or measured to them on the river above, issued their writ for 329,760 feet of white-pine saw-logs, more or less, marked or stamped “E” on the end of each log, of the value of $15 per 1000 feet. Anderson Harvey, who claimed the same logs under a prior contract, and whose mills must stop if he failed to obtain his usual supply, procured a “ claim property bond,” to be given by the boom company, and was afterwards admitted as a co-defendant, to defend his interest. The return of the sheriff was “replevied as within commanded. Defendants gave bond and retained property.” The defendants [pleaded non cepit and property, and on the trial offered to prove by the boom scaler and others that the quantity of logs marked “E” in the boom at the time of the issuing and service of the writ was unknown to both plaintiffs and defendants, and could not be ascertained by any human means until they were rafted out and “ scaled” (that is, the quantity computed by a scale or table of measurement as applied to the dimensions of the logs), and to follow this by proof [206]*206that they were afterward rafted out and counted and measured by the boom scaler, appointed according to law, and that the real quantity as thus ascertained did not exceed 238,000 feet. They offered to prove also that about 50,000 feet of the logs in eontrovesy never arrived at the Susquehanna boom, but were stopped above at the Lock Haven boom, and there sawed and delivered to the plaintiffs; and that about 30,000 feet of the same lot of logs had escaped out of the Susquehanna boom before the issuing and service of the writ, and were taken up below, manufactured and converted by the plaintiffs to their own use after the issuing and service of the writ. They further offered to prove by the same officer and others how many of the logs marked “E” had been rafted out of the boom and delivered to Harvey before the issuing and service of the writ. All these offers were rejected on the ground that by the claim of property and return of the sheriff the defendants were fixed for the 329,760 feet of logs stated in the writ. Knowles v. Lord, 4 Wharton 500, and kindred cases are cited in support of this ruling.
In the view we take of the case before us, we do not intend to impugn or to shake in the least degree the doctrine of that case ; that a defendant in replevin, who claims property in the goods mentioned in the writ, retains them and gives bond for their return and for indemnity, if the property in them be adjudged against him; conclusively admits possession of all the goods, and will- not be permitted to contradict the return of the sheriff that the identical goods mentioned in the writ were left in his hands. But if the principle of an ordinary case of replevin, such as that was, should be applied to this ease, it would require us to use a mere legal presumption adopted for the furtherance of justice to work the grossest wrong, contrary to the palpable facts and against the common understanding of all the parties and the sheriff himself. When the plaintiffs issued the writ against the boom company, they knew its character and purpose, and that, in the language of the offer, by no human means could the quantity of logs marked “E” be ascertained in the boom until they were rafted out and measured. Mixed with innumerable others, submerged, embedded in the mud, piled and heaped together, and filling the river for a mile or more, no human power could reach them until one after another they were loosened below,, and floated out. Had the sheriff gone with his writ to deliver possession to the plaintiffs, what could he do ? They could not show him their logs and he could not find them. Well knowing these things, the plaintiffs did not issue' their writ for a certain number of logs, but for 329,760 feet of logs more or less. What kind of feet were they— lineal or cubic? How many feet more, than 329,760, or how many less were there? This number of feet it appears means inch board measure. How many logs were there throughout which [207]*207this number of feet was distributed ? All these questions should be definitely answered, before we can fix the defendants conclusively for 829,760 feet, by board measure, contained in an unknown number of logs. How can we say conclusively that, “Replevied as within commanded — defendants gave bond and retained the property,” means that the defendants had in their possession a certain number of logs containing this specific number of feet ? The return independently of the writ asserts no number and proves none, while the writ itself is vague and uncertain. It specifies no certain numbpr of logs, and no specific number of feet, but an uncertain number of feet in an unknown number of logs. When we view the character of the boom company, the nature of its duties imposed by law, the impossibility of determining the number of the logs in the boom, the means adopted by law to ascertain, through an impartial officer, the extent of the company’s liability and its claims for tolls and charges, and then look at the vague character of the writ and return, and the knowledge of all parties of the state of the case, we must perceive at once that neither the sheriff nor the defendants had any idea that a claim of property and bond could apply to a certain number of logs or a fixed number of feet, but that they .were intended to cover' and secure what in the due course of the operations of the boom company should be found to be in its possession. We can conceive of no ranker injustice than to fix upon the defendants, by a forced presumption, a specific liability for the very logs that went into the hands of the plaintiffs, and which never came into the boom or had gone out of it before the writ issued. The indefiniteness of the writ and return, and the circumstances by which we distinguish this case from Knowles v. Lord, are not wanting in analogies, where a similar vagueness and want of precision have formed the ground of exceptions to the general rule. Thus where a schooner was sold under an order to sell her “ together with all and singular her tackle, apparel and furniture, or so much thereof as might be necessary,” and the marshal returned that he had sold her, “together with her tackle, apparel, &c.,” the deputy marshal was permitted, in an action of trover for certain of her sails, to prove that the sails were expressly excepted and were not sold, notwithstanding the objection that it contradicted the return: Dolan v. Briggs, 4 Binney 496. A return of “ levied on grain, household furniture, &c., and left at the plaintiffs’ risk,” and another return “levied on goods per inventory,” were held not to be conclusive of satisfaction: Little v. Delancey, 5 Binney 266.
A registry on the 5th of November 1792 of a negro slave, “ born some time in May last or the beginning of June,” was held to be bad because of its vagueness, as the birth might have been before the 5th of May, and the registry therefore made more than [208]*208six months afterwards : Commonwealth ex rel. Jesse v. Craig, 1 S. & R. 23. A sheriff’s return to a fi. fa. of “debt and costs paid” made more than two years after the return-day, was held not to be conclusive: Weidman v. Weitzell, 13 S. & R. 96. Where a fi. fa. had lain in the sheriff’s hands six years, and was then returned nulla bona, the return will not preclude evidence to contradict it: Pennock’s Ex. v. Carr, 1 Rawle 420. A sheriff was held to be competent to prove that a return of “proceedings stayed by plaintiff’s attorney,” which had been struck out by running a line through it, was his return, and had not been struck out by him: Meredith v. Shewall, 1 Penna. R. 495. A return of nulla bona to an execution on a judgment against a surety in a replevin-bond, is not conclusive of the sureties’ insolvency, in an action against a sheriff for taking insufficient sureties in the bond: Myers v. Clark, 3 W. & S. 535. So what property is or is not embraced in a levy which is obscure in its terms, may be shown by parol evidence: Scott v. Sheakly, 3 Watts 50; Hoffman v. Danner, 2 Harris 25; Atkinson’s Lessee v. Cummins, 9 Howard 479. In two of these cases, adjoiners mistakenly called for by the sheriff’s levy were rejected, and land bounded by them excluded. A levy upon three writs against partners, subject to a levy on a writ against one of the partners for his individual debt, and sales returned on all, it was held in a proceeding to make distribution that it might be shown that the property was partnership property: Vandike’s Appeal, 5 Harris 271. So the real value of property replevied may be proved against the value fixed in the writ: Gibbs v. Bartlett, 2 W. & S. 35. Thus there is abundant authority that records and returns which under ordinary circumstances furnish conclusive presumptions of their truth, may, through vagueness, informality and irregularity, be so much impaired in their character, that the presumption is only primá facie, and can he rebutted by proof. Such we think is the case here. The rejected evidence ought therefore to have been received. It is proper to add that we refused, when this case was here before, to express our opinion on the point now decided, on the ground that the writ and return were not then before us. We discover no error in the answers of the court to the defendant’s first and second 'points. The contract of Caldwell with Wait for Anderson Harvey being executory and dependent, the hauling of the logs and depositing them at the place appointed for delivery was not ipso facto a delivery of the logs. Delivery in such a case consists of two acts, the manual act, of placing the property there, and the mental act, or intention to deliver. Without the latter no delivery could be affirmed, and it was for the jury and not for the court to determine with what mind the logs were taken by Caldwell and deposited at the place of delivery. Without an [209]*209intention on part of Caldwell to deliver under the contract with Wait, the property not passing by the agreement itself, there was nothing to prevent Caldwell from selling the logs to Finney, in the absence of evidence to show that Wait or Anderson Harvey for whom he bought, had complied or was ready at the time of delivery to comply with the contract.
Judgment reversed, and a venire de novo awarded.