The opinion
Opinion by
Mr. Justice Green,
The question whether Stackhouse, the landlord, knew, before the distress and sale, that the organs distrained were the property of the plaintiffs, was fairly submitted to the jury as essential to the right of recovery, and when the verdict was found for the plaintiff, the fact of such prior knowledge was conclusively established. There was ample testimony to support the allegation, and although the defendants denied having such knowledge a question of veracity only was raised by such denial, and that was a matter exclusively for the jury. The ultimate question which then arises is whether the distress was lawful or not. If not, the defendants were trespassers, and were liable as such. In Kerr v. Sharp, 14 S. & R. 399, we held that, “ any irregularity in taking a distress makes the landlord, at common law, a trespasser ab initio,” and we decided that an omission to appraise and advertise the sale of the goods dis- *585 trained agreeably to the act of March 21, 1872, was such an irregularity, and that trespass was the proper remedy. To the same effect is Brisben v. Wilson, 60 Pa. 452 , in which we said, “ as no legal right or title can grow out of a trespass, the sale is invalid, and trover can be maintained against the purchaser of the goods.”
In Caldcleugh v. Hollingsworth, 8 W. & S. 302 , cited for the appellant, no notice was given to the landlord, before selling, that the machine distrained was the property of another and left with the tenant for repairs, and that element, which is the controlling one in this case, was absent from that.
That the goods of strangers consigned to an agent to be sold on commission are not liable to distress for rent due by the agent, is such very familiar law that it is conceded by the appellant, and the merest reference to one or two of the cases on that subject will suffice the purpose of the present contention: Howe Sewing Machine Co. v. Sloan, 87 Pa. 438 ; Page v. Middleton, 118 Pa. 546 .
In this case the plaintiff caused the warrant of distress to be levied upon the plaintiff’s goods, knowing them to be the property of the plaintiff, left with the tenant, Manby, for sale on commission, according to the verdict of the jury, and his distress was therefore unlawful and constituted him a trespasser ab initio. That being the case trespass was an available remedy to the owner as upon any unlawful taking. In the case of Esterly Machine Co. v. Spencer, 147 Pa. 466 , the landlord had no knowledge of the title of the owner when the distress was levied, and as soon as he was notified of the owner’s title he requested the owner to replevy the goods, and adjourned the sale to give him time to do so, but the owner did not replevy them and waited till after the sale, and then brought trespass. He had distinct actual notice of the distress before the sale, and had the opportunity to pursue the statutory remedy of replevin within the statutory time of five days, but he declined to do so and permitted the sale to proceed. We held he was bound to bring replevin. But here the distress was levied in Lancaster city, Pennsylvania, and the owners lived in Boston, Massachusetts, and had no notice of the distress, and consequently no opportunity to replevy the goods within the five days.
*586 In view of all the facts of the present case we think there was no error in the action of the learned court below.
Judgment affirmed.