expenses to the detriment of the lien creditors, unless with their

assent.

All this the assignee must be presumed to have known when he accepted the trust. There was no personal estate except that which was under actual levy by the sheriff on execution.

If the encumbrancers consented to the acts of the assignee, they may well be bound by their consent. If they induced him to lay the McVicker farm out in lots, and to hold public vendues, and incur expenses, under the promise of releasing their liens, they may be held to have postponed their right to the fund for distribution to his claim for trouble and expenses in the fruitless efforts to make sales, if the failure to complete them was owing to their bad faith in not releasing after they had agreed to do so.

A careful reading of the notes of testimony and the agreement of 1st of May, 1875, has failed to indicate to my mind any evidence warranting the finding that the judgment creditors, Russell and Watson (whose distributive proportions are, by the finding of the auditor, diminished by the whole amount of these expenses), either assented in advance to or afterwards sanctioned these expenditures.

The evidence shows that the assignee, acting probably under the idea. that he had the right and power to do so, proceeded at once, without consulting the judgment creditors or attempting to get their assent, to lay out the lots and make sales in November and December, 1874. Afterwards, the bidders refusing to take the lots on account of the encumbrances, in May, 1875 (and then for the first time as far as appears from the testimony), an effort was made to get the lien creditors to sign an agreement. To make this effective it was necessary that it should be signed by all. Any judgment creditor might have forced a sale by execution at any time prior to the order of court staying executions in March, 1876, unless he had tied his hands by some agreement or assent to what the assignee was attempting to do.

The construction claimed for that agreement by Messrs. Russell and Watson, seems to me to be the correct one. It amounted to nothing unless all the judgment creditors enumerated in it as parties of the second part joined in its execution. The agreement never was signed by Amanda Stuckey nor by Duncan McVicker, and no sale was made by virtue of it.

That the assignee acted on some verbal promise of Duncan McVicker, and that McVicker acted in bad faith towards the assignee (if this be so), cannot affect Russell and Watson. If the assignee incurred expenses without having the agreement fully consummated, so as to make it effective for the purpose for which manifestly on its face it was designed, he did it at his own risk. It would be unjust to put these expenses, and others previously incurred, on judgment creditors who had done nothing except sign a paper which was not to take effect until other judgment creditors had executed it (and which they refused to do), and under which no sale was ever made.

But on the other hand, under the circumstances of this case, the assignee ought not to be charged with rents, nor with bark or timber taken off by S. W. Gump. His trust was to sell the property, not to retain it and rent it. So far as he did rent it and receive the rents, that

may well go to pay pro tanto his expenses incurred in laying out the lots and attempting sales. Any judgment creditor might have proceeded to sell by execution and to stay waste. If he did not, the rents, etc., would have been lost as to him if the property had remained in the hands of the assignor.

It follows that the compensation to the assignee and his counsel is to be fixed on the basis of the actual sale made under the order of court in pursuance of the act of February, 1876.

The weight of authority seems to be that three per centum for the sale of real estate is the proper allowance, unless in cases attended with more than ordinary trouble: Robb's Appeal, 5 Wr. 49; Snyder's Appeal, 4 P. F. S. 67. There does not seem to have been any extraordinary trouble so far as the actual sale in this case is concerned. And for professional services, apart from the effort to make sales prior to the order of court, $100 would seem to be a fair fee. The services would embrace the preparation of the deed of assignment, petition for order of sale, return and confirmation of sale, filing account, and services before auditor and on exceptions in court.

The report is remitted to the auditor to be amended in accordance with this opinion, and thus amended is confirmed.

Court of Common Pleas of Chester County.

[Leg. Int., Vol. 35, p. 325.]

PRICE vs. KIRK et al.

A claim by an architect for preparing drawings and specifications for the house against which his claim is entered is not the subject of a mechanic's lien.

This was a scire facias sur mechanic's lien, tried by agreement before the court without the aid of a jury. The claim filed was as follows: The amount claimed to be due is $195, for drawings, plans and specifications, and for labor and services in and about, directing and overseeing the same, furnished from October 5, 1874, to November 29, 1875, by the claimant, as an architect for and about the erection and construction of said building. The defendant filed the following plea to the scire facias: And the said defendant and terre tenant, by Wm. B. Waddell, their attorney, say, that the plaintiff ought not to have and maintain his action in the manner as he hath above complained against them, because the work and labor set forth in the claim filed is not the subject of a mechanic's lien, the same being for services as an architect in drawing plans and specifications; and for a further plea in this behalf they say that the amount claimed to be due is more than the services were worth, and of this they put themselves upon the country.

The following cases were cited in argument by counsel: On the subject of demurrer alleged to be raised by the first plea, Van Billard vs. Nace, 1 Grant, 233; Campbell vs. Seaife, 1 Phila. 187; McDowell vs. Hill, Ibid. 103. On the claim falling within the mechanic's lien laws, The Bank vs. Griese, 11 Casey, 423; R. R. Co. vs. Leuffer, 34 Leg. Intell. 212.

Opinion delivered January 28, 1878, by

BUTLER, P. J.-We find from the evidence that the plaintiff is an architect. That his claim is for preparing drawings and specifications for the house against which his lien is entered, and (in his own language) "three visits to West Chester to locate the building and explain the drawings to mechanics." We find, however, that he visited West Chester but once to explain the drawings; that this was before the building was commenced, and consumed a very short period of time. He did not superintend the construction of the house or have anything to do with it, other than has been stated.

The plaintiff's counsel objected to the defendant entering upon this inquiry; but the facts found are mainly taken from his own voluntary statement on the trial.

We find the sum due plaintiff, with interest added to this date, $210. Has he a lien? His counsel cites and relies upon the case of Bank vs. Griese, 11 Casey, 423. The defendant suggests in answer that if R. R. Co. vs. Leuffer, recently decided-ruled below on the authority of this case-stands, Bank vs. Griese is in serious doubt. We must, nevertheless, continue to follow it. But to sustain the plaintiff here it is necessary to go much further. There the court held that an architect who drew plans and specifications for a building, directed and superintended the work done in pursuance of them by the various mechanics, inspecting materials, examining accounts, countersigning orders, and generally occupying the builder's place, and discharging his duties throughout, performed "work about the erection or construction of the building," and included the drawing of plans and specifications necessary to enable him to perform this work, within it. Here the architect drew plans and specifications, advised about the location, that is, assisted in comparing lots; and once (before any work was done or contracted for) met a carpenter and plasterer, for a few minutes, to explain his drawings; but never saw the building, so far as appears. It is difficult to see how he can be held to have performed "work for or about the construction of the building." The claim filed is for drawings, plans and specifications, and for labor and services in and about, directing and overseeing the same. It is further stated that these plans were for the construction of a building. The drawing of plans and specifications, of itself, is not "work" within the meaning of the statute-not work in the ordinary sense of the term. An architect is not a mechanic or laborer. The plaintiff here has no better claim to a lien than the scrivener who copies specifications or draws contracts for the building, or the surveyor who marks the plan upon the ground.

Judgment must therefore be entered for the defendant. It would appear from the record and evidence that the lien was not filed within the time provided by the statute. But it is proper to remark that this question was not raised on the trial.

R. Jones Monaghan, Esq., for plaintiff.
Hon. W. B. Waddell, for defendants.

Court of Common Pleas of Crawford County.

[Leg. Int., Vol. 34, p. 283.]

APPEAL OF P. A. LAFFER and DR. WILLIAMS.

By the act of 1849 persons who sell patent medicines are obliged to take out a license. Opinion delivered July 20, 1877, by

PETTIS, J.-The settlement of the single question presented upon the argument in this case depends upon the construction given to the 25th section of the act of assembly approved the 10th day of April, 1849.

That act is in these words: "In addition to the license now required by law to be taken out by vendors of merchandise, all manufacturers, vendors, agents or other persons (except regular apothecaries for the sale of simple medicines, the prescriptions of physicians, and the compounds of the pharmacopoeia, and the several dispensatories of the United States) engaged in the manufacture or sale of any nostrums, medical compounds, or patent medicines, whether pills, powders, mixtures, or in any form whatsoever, shall also take out from the proper city or county treasurer a license for manufacturing, vending, hawking, peddling, or in any way selling such nostrums, medical compounds or patent medicines."

By the act of the 11th of April, 1862, section 1, it is made the duty of the mercantile appraiser to personally visit the store, or other place of business, of every person whom they are required by law to ascertain and assess, and at the same time to give to each such person living on the premises, a written or printed notice specifying the classification and amount of license money to be paid by such person to the State, and also the time and place, when and where he, the appraiser, will hold an appeal, as required by law.

At the time fixed by the mercantile appraiser, and at which time he adjudged the appellants liable for the amount of the license money, the appellants here appeared and were heard, and believing that injustice was done them by the action of the mercantile appraiser, in sustaining his previous classification and assessment, they took an appeal to the Court of Common Pleas, and by consent of counsel, Mr. District Attorney Beatty representing the commonwealth, and A. B. Richmond, Esq., the appellants, the case was heard at chambers.

The appellants, Dr. Williams and P. A. Laffer, are heavy dealers in drugs and merchandise, in the city of Meadville, and among other things, keep for sale and sell, patent medicines, and for dealing in such patent medicines, the mercantile appraiser deemed them subject to the provisions of the act of April 10, 1849, which required them as vendors of merchandise, to take out the additional license provided for by the

If there exists any legal obligation upon these appellants to take out an additional license to carry on their business, it is found in the first section of the act of April 10, 1849, which excepts from the operation of that statute, "regular apothecaries for the sale of simple medicines, the prescriptions of physicians, and the compounds of the pharmacopoeia, and the several dispensatories of the United States."

It is contended by the counsel for the appellants that they are included in the exceptional language of the statute, and therefore protected and exempted from the operation of the law, that in the judgment of the mercantile appraiser, Mr. Patton, requires them to obtain permission from the treasurer of the proper city or county to sell patent medicines, which seems to be an additional license, which requires the payment of another fee, which it is claimed compels the appellants to pay a double

license fee or tax.

To this conclusion we have not been able to come. We think the law was aimed at the traffic in patent medicines, and that the act of April 10, 1849, was designed to compel all manufacturers, vendors, agents, or other persons "engaged in the manufacture or sale of any nostrums, medical compounds or patent medicines, whether pills, powders, mixtures, or in any form whatever," to take out a license therefor, notwithstanding that they might hold a license for vending merchandise, as required by the statute, previous to the passage of the act of 1849; and in order that the person or persons who sold nothing but "simple medicines, the prescriptions of physicians, and the compounds of the pharmacopoeia, and the several dispensatories of the United States," should not be brought within the range of the provisions of the act, they were especially excepted by the first section of the act; and we think, from the phraseology of the act, it was plainly the intention of the legis lature to relieve the regular apothecary from the imposition of this tax while dealing in the articles specified or enumerated in the exception, constituting a part of the section, not because he was a "regular apothe cary," but because he did not sell any of the articles described in the enacting clause, and which the exception did not embrace, but at which the law aimed; in other words, as long as he sold nothing but what was enumerated in the excepting clause, he was not compelled to take out the additional license, but if he engaged in the sale of any " nostrums, medical compounds, or patent medicines," then he must.

Nor can we subscribe to the argument that such a construction of the law compels the payment of a double tax or license in an objectionable form or sense, any more than the grocer who pays a license upon his business, and seeks and obtains a license to sell liquor with other goods, and pays therefor a liquor license.

There is surprise, but not authority, in the exhibit made by the counsel for the appellants in support of their position, showing that heretofore large and populous counties paid little or nothing upon the sale of patent medicines; we say surprise, as it leaves no other inference than that a law upon the statute book, of binding force, has been treated as a dead letter.

We think the object of the act of 1849 was to compel those who sell patent medicines to take out a license, and that the only way to enforce it is to affirm the action of the mercantile appraiser, and taking this view of the question raised upon the hearing, the appeal is dismissed and the conclusion of Mr. Patton approved and adopted. Appeal dismissed.