
    BRIGHT’S APPEAL.
    1. The individual members of a firm executed mortgages on their individual interest in a coallease, afterwards a judgment was recovered against the firm, but set aside as to one member; upon executions on the bonds accompanying the mortgages, the holders thereof were awarded the proceeds of the sale of the leasehold estate in preference to the partnership creditor.
    2. In a contest between firm creditors and individual creditors the question of partnership can only arise where there are sales on partnership and in individua writs and the levies are contradictory.
    Appeal of Joseph C. Bright from Common Pleas of Schuylkill county, No. 280 January Term, 1878.
    On August 19th, 1867, James C. Oliver acquired a coal lease. On Dec. 23, 1868, J. C. .Oliver assigned j- of said lease to David Oliver and formed.a partnership. On February 13th, 1871, J. C. Oliver assigned j- of said leasehold to O. E. Moore, who became a partner. On February 13, 1871, J. C. Oliver made a mortgage upon an undivided J- of said leasehold to Edward Silliman and T. Garrettson for $5,000. On same date Moore made a similar mortgage to same parties for $10,000. On June 20, 1871, David Oliver made a similar mortgage to Edward Silliman for $2,000 The mortgages were duly recorded, and judgment bonds accompanied the mortgages. On Dec. 17, 18.74, these bonds were entered in the Common Pl.eas, and on the same day fi. fids issued. A judgment of Joseph C. Bright vs. James C. Oliver & Co. for $2,876.78 was entered January 18, 1875, to No. 338 March Term, 1875, and afi-fa. issued January 21, 1875. This judgment was afterwards set aside as to O. E. Moore. The Sheriff levied on the individual interests in the leasehold and the movable chattels under the first three executions, and also levied upon the leasehold interests and chattels of the firm on Bright’s ji. fa. On February 6, the Sheriff sold under the first three writs the leasehold estate for $4,100. February 20,1875, the Sheriff sold the loose personal property under the first three writs and a landlord’s warrant for $1,894.50. Bright’s ft.fa. was stayed i'ñ'the Sheriff’s hands February 20,1875, before the sale. The claims for wages of miners, mechanics a,nd laborers amounting to $9,477.61 were assigned to Edward Silliman and Theodore G-arrettson. The auditor awarded to Silliman and Garrettson the amounts produced by the sale of the leasehold estate, after deducting costs, and also awarded them the balance of the fund as assignees of the miners, &c.
    Bright excepted, but the Court confirmed the report of the auditors in the following opinion by
    Pershing, P. J.
    The auditor has appropriated the moneys arising from the sale of the leasehold of the several defendants to the payment of the mortgages of the plaintiffs.
    This we think is correct. The mortgages were given in 1871, and the act of 1872, for the protection of the wages of labor contains an express provision that it shall not impair contracts existing or liens of record vested prior to its passage, and (seePurd. Big., 485 and notes,) from the sale of other property the sum of $1,894:50 was realized, which was appropriated to the payment of labor claims. The only exceptant is Joseph C. Bright, who to No. 175 March T., 1875, had issued a writ of Fi. Fa. against the firm of James C. Oliver & Co., founded on a judgment which was set aside by the Court, so far as it related*to Oscar F. Moore, one of the defendants.
    The writ of Bright, upon which a levy was made by the sheriff, was subsequent in time to writs issued by the plaintiffs above named. The first exception is “that the auditor erred in awarding the money to the claims of miners and laborers in preference to the execution of Joseph C. Bright.” It is sufficient as an answer to this exception to state the fact that the only money applied to the claims of miners and laborers was the proceeds of a sale made after the writ of Mr. Bright had been stayed.
    "We do not think the auditor was called upon to decide any question as to the legal rights of the firm as distinguished from the individual creditors of the defendants. No sale of any part of the property, leasehold or otherwise, was made on the execution of Bright, against' the partnership. In a contest between the creditors of a firm and the execution creditors of an individual partner, the question of partnership can be determined by an auditor only where there are sales on partnership and individual writs, and the levies are contradictory.
    The sheriff’s return to a writ ot Fi. Fa. is conclusive upon the plaintiff therein. Boguis Ap. 3 W. Notes 256, and authorities there cited. This disposes of the other exceptions. We think the auditor eommitced no error in refusing to appropriate any part of the fund to the writ Joseph O. Bright, against the firm of James C. Oliver & Co.
    And now, September 24th, 1877, the exceptions are everruled and the report of the auditor confirmed.
    Bright appealed to the Supreme Court, and F. W. Hughes and G. E. Farquhar, for appellant argued.
    1st. Wages due by a firm are not payable out of the proceeds of the sale of the individual interest of the partners; King vs. King, 2 W. N. C. 201, and therelore, the labor claimants or their assignees were not entitled to any part of the fund.
    2nd. Upon a sale of partnership property under joint and several executions, partnership debts are to be first paid. King’s Appeal, 9 Barr 124; Coover’s Appeal, 5 Casey 9; Crow vs. Commonwealth, 16 Pittsburgh L. Journal 250; Doner vs. Stauffer, 1 Penrose & Watts 198.
    
      Lin Bartholomew and G. R. &. H. Kaercher for Silliman and Garrettson,
    argued that coal lease mortgages of the individual interests are authorized by Act of April 5, 1853, P. Laws 295, P. Dig. 600, Pl. 161. As to purchasers of the title and creditors having liens, the lease was not partnership property, even though the owners were partners, because it was bought individually. Ebbert’s Appeal, 20 P. F. Smith, 81; Hall vs. Henie, 2 Watts 143; McDermott vs. Lawrence, 7 S. & R. 438; Ridgway’s Appeal, 3 Harris 177; Kramer vs. Arthurs, 7 Barr 170; Lancaster Bank vs. Myley, 1 H. 544; Cumming’s Appeal, 1 Casey 268; Erwin’s Appeal, 3 Wright 535. Even if it was partnership property, the sale discharged all liens and equities under Doner vs. Stauffer, 1 P. & W. 198, and the claim for wages became the first lien, Act April 9, 1872; P. Laws 47, P. Dig. 1699, Pl. 4; and therefore, if it was partnership property, appellees as assignees of the wages claims were entitled to the whole fund. King vs. King, 2 W. N. C. 200 does not conflict with'this position'.
   The Supreme Court affirmed the decision of the lower Court on March 31, 1879, in the following opinion:

Per Curiam.

We affirm this décreé upon the opinion of the learned President of the Court below.

Decree affirmed and appeal dismissed at the costs of the Appellant.  