delivered the opinion of the court.

The view we take of this case renders unnecessary any examination of the questions arising out of the second .trial. The first verdict was clearly right, and should not have been set aside. There was in the first trial a complete absence of any evidence of the title of the plaintiff to the cross-ties. It was stated, generally, by witnesses in their narratives, that she had bought' them at a sale at the court-house under some attachments against one Leek, who owned them, but the attachment proceedings were not produced or any substitute for the evidence they would afford. The plaintiff’s right to recover the value of the ties depended on her acquisition *307of the title of Leek by some valid proceeding against him, for she did not claim to have obtained them by contract, and there was no effort to show any such proceeding.

This case illustrates a perversion of the meaning oif the expression “ in danger of immediate waste and decay,” as used in § 2462 of the code. Because cross-ties for a railroad track are liable to be destroyed by fire, and there was considerable danger of fire at the time, it was concluded that an immediate sale should be made on short notice, and they were sold. Alas ! all things terrestrial are destructible, and this earth is finally to yield to the destructive agency of fire, we are told, but the fire test is not the true one in contemplation of the statute. The danger of immediate waste and decay to which it applies is that arising from the inherent nature and qualities of the goods and chattels which' render them liable ’ to immediate waste and decay. The construction of the statute under which this sale was made would make a sale proper in most instances where personal- property is' levied on, for the durable qualities of hardwood cross-ties for a railroad bed must equal or exceed those of a very large list of articles. The purpose of the statute is to provide for the conversion into money on short notice of goods and chattels which will not keep because of their liability to speedy decay or waste.

Judgment reversed, the first verdict established, and judgment • thereon in favor of appellants, who shall recover costs in this court' and in the court below in both trials.