
    Renner, Appellant, v. Stephens.
    
      Replevin — Bailments—Sale by bailee — Right to recovery by bail- or — Case for jwry.
    
    In an action of replevin to recover an automobile, the case is for the jury, where the plaintiff has filed his statement averring ownership and the defendant, having retained the machine and given a bond, has filed an affidavit of defense alleging that he purchased the car from the plaintiff’s bailee, after the plaintiff had refused to pay a repair bill for which the bailee had a lien.
    In such case, an issue was raised for the jury, and it was error to quash the writ of replevin on the ground that the defendant was the bailee’s substitute and entitled to all his rights, including the lien for repairs.
    The plaintiff having filed his declaration and the defendant his affidavit of defense, the ease was for trial on the issue so raised, in accordance with the provisions of the Replevin Act.
    Argued April 12, 1921.
    Appeal, No. 88, April T., 1921, by plaintiff, from judgment of C. P. Greene County, Dec. T., 1918, No. 76, quashing writ of replevin in the case of John Renner v. James Stephens.
    Before Orlady, P. J., Porter, Henderson, Head, Trexler, Keller and Linn, JJ.
    Reversed.
    Replevin for automobile. Before Ray, P. J.
    The facts are stated in the opinion of the Superior Court.
    At the trial, after the plaintiff had presented his case, the defendant moved to quash the writ and the court sustained the motion of the defendant in the following opinion:
    
      “As tbe record in tbis case stands at tbe present time tbe court is of opinion that tbe plaintiff is not entitled to recover in tbis action. Altbongb be is of tbe opinion that tbe title to tbe property still remains in tbe plaintiff as it was prior to tbe sale made by tbe bailee, Staggers, October 22,1918, that tbe title still remains in tbe plaintiff in tbis case subject to tbe same conditions that it was in prior to tbe sale of tbe automobile of tbe defendant.
    “And further it is tbe court’s opinion that tbe plaintiff is not entitled to recover in tbis case under tbe Act of 1868 or under tbe Act of 1901. In tbe court’s opinion tbe sale of tbe automobile by Staggers to tbe present defendant in tbis case was simply a substitution; that tbe ownership of tbe car still remains in tbe plaintiff subject to tbe same conditions it was in while it still remained in tbe custody of Staggers tbe bailee. And for these reasons tbe court sustains tbe motion to quash tbe writ in tbis case.”
    Plaintiff appealed.
    
      Error assigned was tbe order of tbe court.
    
      Charles W. Waychoff, for appellant.
    
      Andrew A. Purman, for appellee.
    July 14, 1921:
   Opinion by

Linn, J.,

Tbis is an appeal from an order quashing a writ of re-plevin at tbe conclusion of plaintiff’s case during a trial on tbe merits. Appellant brought replevin for a car, averring title and right of possession in him and its unlawful detention by defendant. Defendant filed a counter-bond and an affidavit of defense denying plaintiff’s title and averring title in himself by purchase from one Staggers. Tbe parties went to trial on tbe issue so made. Appellant showed that be bad purchased tbe car from one Hart and had delivered it to Staggers for repair; that Staggers had repaired it and had demanded repair charges so excessive that appellant had refused to pay them; that Staggers without notice had then sold and delivered the car at private sale to defendant who paid the amount of the repair bill and who knew when he bought it that “it was John Benner’s car.” At the conclusion of plaintiff’s evidence, the court granted a motion made by defendant’s counsel “to quash the writ,” saying, “In the court’s opinion the sale of the automobile by Staggers to the present defendant in this case was simply a substitution; that the ownership of the car still remains in the plaintiff subject to the same conditions it was while it still remained in the custody of Staggers the bailee. And for these reasons the court sustained the motion to quash the writ in this case.”

We cannot sustain the order. There is no authority to quash the writ in such circumstances; plaintiff had complied with the Act of April 19, 1901, P. L. 88, in obtaining the writ; it was duly served; defendant filed a counterbond and retained the car; plaintiff filed his declaration and defendant his affidavit of defense; the evidence was heard on the trial of the issue so raised in accord with the provisions of the Replevin Act: Drumgoole v. Lyle, 30 Pa. Superior Ct. 463, 467. That issue should have been tried. Staggers of course had a lien for repairs: Saxton v. Gemehl, 72 Pa. Superior Ct. 177, and if the lien is in the case, as to which we need now express no opinion, section 6 of the Replevin Act provides what may be done: Young v. Couche, 52 Pa. Superior Ct. 592, 596.

The judgment is reversed and a new trial awarded.  