#### Boyd’s Appeal. [Fire Ins. Patrol *v.*Boyd.]

A preliminary injunction, to restrain execution, against property of a quasi-public corporation necessary for the enjoyment of its franchises, attempted to be executed by means of an ordinary fi. fa., was affirmed, on appeal.

Jan. 17, 1888.

Appeal, No. 181, Jan. T., 1888, by Julia F. Boyd and Herbert H. Boyd, by his guardian and next friend, B. W. Andrews, to review a decree of C. P. No. 1, Phila. Co., awarding a special injunction to restrain them from selling, under execution, the personal property of The Fire Insurance Patrol of the City of Phila., separate from its franchises, at No. 900, March T., 1883. Trunkey, J., absent.

The bill averred substantially as follows: Charles S. Boyd, the husband and father of Julia and Herbert Boyd, was accidentally killed by a blow from a tarpaulin, thrown from a window by an employee of The Fire Insurance Patrol. In an action for damages against the employee and the Patrol, a verdict of $25,000 was rendered against Hutchinson, the employee, and a non-suit was entered as to the Patrol. This non-suit was reversed by the supreme court, in Boyd *v.*Ins. Patrol, 113 Pa. 272. On the second trial, the jury rendered a verdict against the patrol for $39,000. Plaintiff filed a remittitur as to all the interest on the verdict against Hutchinson up to the date of the verdict, against the Patrol, and also for all the verdict against the Patrol over $25,000, and judgment was entered up simultaneously against Hutchinson and The Fire Insurance Patrol for $25,000.

An ordinary fi. fa. was issued upon the judgment, and the sheriff levied upon the horses, tarpaulins, engines, etc., with which the Patrol carried on its business. The Patrol then filed the present bill to restrain the sheriff from proceeding with said execution, alleging that it was a public corporation incorporated under the Act of Feb. 17, 1871, to protect life and property in, or contiguous to,’burning buildings, and to remove and take charge of such property; that it exercised its functions, without discrimination, for the benefit of the public at large, saving and protecting the lives and property of the public, whether the same was insured or not, freely and gratuitously; that it possessed no capital Stock, and no means of making or declaring dividends, etc., and all the property owned by it was necessary to the proper exercise of its corporate functions; that it was *400supported entirely by voluntary contributions; — praying that the sheriff be restrained from selling any of its property. Injunction affidavits were filed in support of the bill.

The court, after argument, granted the injunction, delivering the following opinion orally by Biddle, J.:

“ It is not a question here whether this is a charity, but whether property, necessary to its existence, and asserted for the enjoyment of its franchises, can be levied upon and sold apart from its franchises. The object of the corporation is ‘ to protect life and property in or contiguous to burning buildings, and to remove and take charge of such property.’ This being a quasi-public purpose, the company is not liable to have its property sold piecemeal, but the proceedings must be under the Act of 1870, P. L. 58.”

The court then granted a special injunction, as follows :

“We do command you, the said Julia F. Boyd, Herbert H. Boyd, and your guardian and next friend, B. W. Andrews, and John J. Ridgway, high sheriff as aforesaid, and your and each of your agents, employees and servants, not to levy upon or cause to be levied upon and sold, or sell or cause to be sold, by virtue of or under a writ of execution lately purchased by said Julia F. Boyd and Herbert H. Boyd, by his guardian, etc., B. W. Andrews, and lodged in the hands of said sheriff any or any part of the property of said Patrol named in said bill of complaint, viz.: a small sum in cash, implements, wagons, one engine, horses, tarpaulins, and such like articles, and not to purchase any other writ of execution for the purpose of levying upon thereunder, and not to levy upon or cause to be levied upon thereunder, and not to sell or cause to be sold under any such writ of execution, or proceed therewith upon any or any part of said property of said Patrol mentioned in said bill of complaint, namely, a small sum in cash, implements, wagons, one engine, horses, tarpaulins, and such like articles separate or apart from the franchises of said Patrol, until the further order of said court in the premises.”

*The assignment of error*specified the granting of the special injunction, quoting the decree, as above.

*George*Jnnkin, for appellants.

The Act of June 16, 1836, § 72, P. L. 77s, provided the manner in which an execution should be made against a corporation other than a county, township or other public corporate body, viz., by demand, seizure of personal property, etc., and, finally, sequestration, as provided in § 73. Sequestration does not apply to ordinary corporations, but was directed against such corporations as railroads, canals, etc.

The Act of April 7, 1870, P. L. 58, provided, that *“in addition*to the provisions of the 72d section of the Act of June 16, 1836, relating to executions, and in lieu of the provisions or proceedings by sequestration under said Act, the plaintiff may have execution by fieri facias against any corporations not excepted by said *401Act, which shall command the sheriff or other officer to levy the sum of said judgment, with interest and costs of said suit, of any personal, real or mixed property, franchises and rights of such corporations, and thereupon proceed and sell the same, — excepting lands held in fee, which latter shall be proceeded against and sold in the manner provided in cases for the sale of real estate ” (R. R. *v.*McCullough, 70 Pa. 355 ; Bayard’s Ap., 72 Pa. 453); but it left the distribution to be made of the proceeds of the sale just as under a sequestration.

The Act of 1870 did not abrogate the fi. fa. authorized by the Act of 1836. It left it as it was. It did dispense with the sequestration ; and allowed the same result to be reached by a fi. fa. as had been done by a writ to sequester.

The fi. fa. in our case issued regularly against the two defendants, the Patrol Company and Hutchinson, for $25,000. The court below restrained the execution against the corporation, because the property levied upon, viz: the horses, engines, tarpaulins, &c., were essential to the conducting of the business of the corporation, and could only be sold with the franchises under the Act of 1870 just quoted. But it is not a quasi-public corporation like a railroad, canal or other corporation which exercises franchises conferred upon it for the public benefit, and incidentally for private profit, so that the public suffers if the business is stopped.

[ The argument on the question whether or not the appellant was a quasi-public corporation is omitted, as that was decided in the affirmative in Fire Ins. Patrol *v.*Boyd, argued with this case, and reported in 120 Pa. 624.]

*Geo. W. Biddle*and *Arthur Biddle,*with them *H. La Barre Jayne,*for appellee.

The court will restrain a sale, by injunction, where the sale is illegal: Houston’s Ap., 6 W. N. C. 162; or where it is proposed to levy upon or sell any property exempted by law: Wisslerr *v.*Williams, 26 Leg. Int. 213; or where a chattel, from being used in business, or otherwise, has a peculiar value: North *v.*Ry., 2 Gif. 64; or the seat of a member in a stock exchange: Pancoast *v.*Gowen, 93 Pa. 66; Thompson *v.*Adams, lb.. 55.

By the common law of Pennsylvania, the property of a quasi-public corporation, necessary to its corporate existence and for the enjoyment of its franchises, cannot be sold separate and apart from its franchises : Ammant *v.*Turnpike Co., 13 S. & R. 210; Susquehanna Canal Co. *v.*Bonham, 9 W. & S. 27; Covey *v.*R. R., 3 Phila. 173; Plymouth R. R. *v.*Colwell, 39 Pa. 337; Foster *v.*Fowler, 60 Pa. 27; Youngman *v.*R. R., 65 Pa. 286; Fairmount Coal & Iron Co’s Ap., 14 W. N. C. 214.

At common law, franchises could not be levied upon by execution : Morawetz, Corporations, § 924, note 2 and cases there cited; Taylor, Corporations, § 671.

The Act of June 16, 1836, P. L. 775, gave a remedy by se*402questration, but did not permit the sale of the rights or franchises of the company. The Act of April 21, 1858, P. L. 398, authorized the sale of bridge companies, under certain circumstances, to purchasers who would maintain them as provided by the charter. The Act of April 8, 1861, P. L. 259, provided for the sale of franchises, etc., of railroads, canals, etc., and new corporations thereby were created to carry on the same. Further powers of sale were given to the creditors of the above named corporations by the Acts of April 18, 1864, P. L. 452, and Feb. 19, 1867, P. L. 28. Finally, the Act of April 7,4870, P. L. 58, a supplement to the Act of 1836, was passed.

The Act of 1836 only applies to corporations organized for profit. In the first place, the evil was,- certain trading or monetary corporations created for profit could contract debts and possess the means of paying them, and yet their creditors should have no means of coercion. And it was to remedy this evil that, in 1825, C. J. Tilghman, in Ammant *v.*Turnpike Co., 13 S. & R. 213, suggested the passing of the above Act.

In the second place, the words of §§ 73 and 74 of this Act, “ in lieu of” which, and to replace which, the above Act of 1870 was passed, plainly do not embrace any but corporations established for profit. Thus in § 73, the court is to “ award a writ to sequester the goods, chattels, and credits, rents, issues, and profits, tolls and receipts, from any road, canal, bridge, or other work, property, or estate of such corporation.” And, in § 74, the sequestor is to take charge of the property “ and to distribute the net proceeds thereof.”

Obviously, then, since the classes of corporations referred to in §§ 73 and 74, of the Act of 1836 and the Act of 1870 are identical, and as the former do not include any but corporations established for profit, the Patrol, declaring no profits or dividends, is not within the Act of 1870, and its franchises cannot be sold by virtue of that Act.

Again, we are irresistibly impelled to the same conclusion by the peculiar phraseology of the Act of May 25, 1878, P. L. 145. This Act, a supplement to the Act of April 8, 1861, provides that the purchasers of the franchises must meet within a particular time, organize the company and determine the amount of the capital stock, etc., the wordin'g all clearly indicating that none but bodies formed with the design of directly making dividends or profits were to be included within its provisions.

But, as the Act of 1878 was passed to include the corporations embraced in §§ 73 and 74 of the Act of 1836, and in the Act of 1870, the language of the former indicates plainly that the Acts of 1836 and 1870 did not apply to bodies unless organized for direct “ profit and gain,” and, again, as the Patrol, if sold, must be reorganized under the Act of 1878, and as this cannot be done, how can it be sold at all ? For it can hardly be rationally contended that such a body as the Patrol can be sold to be put out of existence, when it *403is expressly decided by the courts, that, by the common law, and provided by the legislature in all the Acts on the subject of execution- against corporations, that the franchises of no corporation of a quasi public body like a turnpike or canal or railroad, can ever-be put out of existence by execution, but, in the event of a sale, the purchasers must carry the same on as before.

Oct 26, 1888.

Paxson, J.,

The decree is affirmed and the appeal dismissed at the costs of the appellants. ' w. M. s., jr.