Opinion,

In May, 1883, at suit of present plaintiff, W. C. Garey, against O. A. Seeley, a considerable quantity of lumber was *254replevied by the sheriff at Dushore Switch, and delivered to plaintiff in the writ. Issue was joined on a plea of property in N. K. Woodward, defendant in this suit, and the cause was' so proceeded in that a verdict in favor of the plaintiff was rendered and judgment entered thereon. That judgment was afterwards affirmed by this court, and Garey's title to the lumber was thus established: Seeley v. Garey, 109 Pa. 301.

It is claimed by plaintiff that the lumber in controversy in this suit was part of the larger lot embraced in the action of replevin; but, whether that be so or not, the evidence tended strongly to show that his title thereto was the same as to any part of the lumber that was undoubtedly replevied. It also tended to prove clearly that the defendant, Woodward, with knowledge of plaintiff’s title to all the lumber, removed and sold the portion now in controversy. The fact that he took it and converted it to his own use, was not seriously disputed; but his contention was that it was not actually replevied, and therefore an action of trespass could not be maintained against him. At best, this defence is purely technical and without merit; but it was sustained by the learned judge of the Common Pleas, and he accordingly instructed the jury, as requested in defendant’s second point, that unless they found from the evidence that the lumber in controversy was part of the 60,500 feet at Dushore Switch, the title was not adjudicated in the replevin suit as against defendant, and their verdict should be in his favor. This is the subject of complaint in the seventh specification. Substantially the same instruction is complained of in the third, fourth, and fifth specifications. The case was thus made to turn solely on the question, submitted to the jury as a question of fact, whether the lumber in controversy was or was not included in the replevin suit. In that we think there was error, because there was evidence from which the jury might have found other facts sufficient to warrant a verdict in favor of plaintiff. The evidence tended strongly to prove that the lumber in controversy was part of a larger lot, the title to which was in plaintiff, and that defendant with knowledge of the fact, brought home to him in the trial of the action of replevin, removed and converted to his own use the part now in controversy. If the jury had so found, as they might have done from the evidence, their verdict would not *255necessarily have been for defendant. Under such circumstances a demand on defendant for the lumber would have been an idle ceremony.

The remaining specifications are not sustained. The last clause of plaintiff’s first point, tbe refusal of which is complained of in the fifth specification, could not have been affirmed without qualification. It would have been error to do so, and hence the court was justified in refusing it.

J udgment reversed, and a venire facias de novo awarded. .