text:
    Sloan versus The Union Banking Company.
    1. Before the holder of negotiable paper can be required to prove his bona fid'es, it must appear that the instrument was obtained originally, or was put into circulation subsequently by fraud or undue means.
    2. Want or failure of consideration or that an agent or broker had fraudulently misappropriated the proceeds of discount, is not sufficient to put the holder to the proof of his bona fides.
    3. In an action against a drawer by a bank, holding a note from the payee, the affidavit of defence was that the note had been given for a balance supposed to be due to the payee, that it was afterwards discovered that nothing had been due to the payee; that the payee had funds sufficient in the bank to pay the note, and that ’before it was due the endorser gave notice to the bank of the mistake and required them to pay it out of the endorser’s funds held by them. Held not to be a sufficient defence.
    February 9th and 10th 1871.
    Before Thompson, C.’J., Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 168, to January Term 1871.
    On the 17th of September 1870, The Union Banking Company of Philadelphia commenced an action of assumpsit against Elwood P. Sloan.' The cause of action was the following note:—
    “$2000 Philadelphia, June 9th 1870.
    “ Three months after date, I promise to pay to the order of Francis H. Good' two thousand dollars, payable at the Union Banking Co., without defalcation. Yalue received.
    “Elwood P. Sloan.”
    (Endorsed) “ Francis H. Good.”
    Sloan filed the following affidavit of defence:—
    “ The note, a copy of which is filed, was given by this deponent to one Francis H. Good, payee therein named, under the following circumstances:—
    “ The said Good and- this deponent were formerly copartners, transacting business together under the firm of Sloan & Good. Upon the dissolution of their partnership, at or about the date of said note, there appeared by the books of the firm to be due by this deponent to his said copartner a sum of money exceeding in amount $2000. Acting on the belief that said sum was due, but before the settlement was had, this deponent agreed at the request of said Good to give his, this deponent’s note for said sum of $2000, and thereupon he did in fact give the said Good the note, a copy of which is filed, on account of said supposed balance. Subsequently to the making of the same, it was discovered that there was an error in the account of the said firm, upon a correction of which it was ascertained that nothing was due to the said Good, but the balance of said account was in favor of this depoiient, and this deponent, in fact, says that at the time of the making of the said note he was not indebted to the said Good in any amount, and has not since been, and is not now indebted to him ; that said note was given in mistake, and that as between Good and this deponent, it is without any consideration whatever.
    “ And this deponent further says that, upon discovering these facts, he immediately gave a notice to the plaintiffs, who, as he was informed, were then the holders of the said note, a copy of which notice is annexed, and this deponent is informed, and verily believes and expects to be able to prove, that the said bank had then, at the time when said notice was given, or has since had in its possession, deposits of the said Good, or in which he was interested, sufficient in amount fully to reimburse them for the amount, if any, advanced to him on account of this note, and which said bank might have retained for said purpose, and he is advised that it was their duty so to apply such deposits; and deponent is further informed, and verily believes and expects to be able to prove, that said bank has, in fact, been fully indemnified by said Good against all loss by reason of the non-payment of said note by this deponent.”
    Notice to the bank:—
    “Philadelphia, September 6th 1870.
    “ To The Union Banking Co.,
    “ Gentlemen: I give you notice that a note for $2000, made by me in favor of E. H. Good, dated June 9th last, payable in three months, and due on the Í2th inst.j was made and delivered by me to Hr. Good under a mistake; that no part of the sum for which it was given is, or was at the. making of it, due by me to him, and that I will not pay it at maturity.
    “ I give you this notice that, as between you and Mr. Good, you may have time, to protect yourself from loss by retaining any moneys of his in your hands, or which may come to your hands, and I particularly caution you against parting with the. note or giving any facilities for its passing into other hands.
    “Elwood P. Sloan.”
    The court entered judgment for $2019.17, for want of a suffipient affidavit of defence. This the defendant assigned for error on the removal of the record to the.Supreme Court.

      J. H. Gendell and N. B. Miller, for the plaintiff in error.
    Deposits in bank by Good immediately became the property of the bank: Morse on Banking 26. A bank is bound to pay itself out of the drawer’s deposits or else the endorser is discharged: Morse on Banking 34, 39; McDowell v. Bank, 1 Harring. 369; Dawson v. Real Estate Bank, 5 Pike 283; Ex parte Hippins, 2 Glyn’s Cases in Bankruptcy 93.

      February 20th 1871,

      M. H. Todd, for defendants in error.
   The opinion of the court was delivered,

by Sharswood, J.

It may certainly be considered as well established in this state, that before the holder of negotiable paper can be required to prove his bona fides, it must appear, either by direct evidence or by circumstances, that the instrument was obtained originally, or was put in circulation subsequently, by fraud or undue means. It is certain also that want or failure of consideration, or even that an agent or broker to whom it was intrusted for negotiation had fraudulently misappropriated the proceeds of its discount, will not be sufficient for that purpose. The maker, by its negotiable form, authorizes the payee to put' it in circulation. If he has issued the note imprudently, that ought not to impose upon the holder what may often be a very difficult, because an unexpected, burden. On the other hand, a man who has lost, or been robbed or defrauded, is to be considered in the light of an unfortunate rather than an imprudent man, and therefore has a claim to protection against maid fide holders. These are the grounds upon which the rule is placed in Knight v. Pugh, 4 W. & S. 445; Brown v. Street, 6 Id. 221; Albrecht v. Strimpler, 7 Barr 476; Gray v. The Bank, 5 Casey 365. The allegation made in the affidavit of defence filed in the court below, that the note sued upon was given for the balance appearing upon the settlement of a partnership account between the maker and the payee, in which it has since been discovered that there was a mistake, is after all nothing but want of consideration. It is not pretended that there was any fraud or falsehood on the part of the payee, or even that he was cognisant of the error when he received the note and put it in circulation. He was doing no moral wrong whatever. The bank who took it from him were justified, for aught that is alleged, in placing the most entire confidence in his integrity. Why, then, should they be required to prove affirmatively when and how they acquired possession of the note ? It would not be wise to extend the principle of Holme v. Karsper, 5 Binn. 469, any further than our determinations have already carried it, for it would be a very serious impediment to the free circulation of negotiable paper, which is so highly important in a commercial community.

As to the remaining ground of defence, it is not easy to understand upon what principle the maker of a note can require the holder to appropriate money of the payee in his hands to its payment ; and this upon his own naked allegation that as between him and the payee he has a good defence. The bank, by the notice served upon them, were asked in effect to suspend proceedings against the maker, to pay themselves from the deposits of their own customer, and thus compel him to turn round and sue the maker on the note. They have a right to do this, because they can pursue all or either of the parties, according to their discretion ; but there is no right or equity in the maker to require it. It would be a very unjust proceeding if this alleged defence is unfounded in law or fact. Must the bank be put to the trouble of ascertaining that ? The maker is the party who on the face of the paper is ultimately liable, and where he is able, it would seem most reasonable and just to pursue him in the first instance. Let him pay the note and bring his action of account or file his bill in equity against his former partner. If he can show the mistake, his remedy will be adequate and complete. As to the suggestion that the payee may draw all his deposits from the bank and abscond, it may be answered that the maker may do the same, and the payee be unable to follow him.

Judgment affirmed.


source: Caselaw Access Project

author: by Thompson, C. J.

license: Public Domain

text:
    Keyser versus Mitchell et al., Garnishees.
    1. A testator devised to trustees to collect, &c., rents and income and “ pay said income, &c., or so much as the trustees may think proper, &c., under all the circumstances of the case for the support and maintenance of my son Charles during his life, with the intent and purpose that the said trustees may either pay the said income, of such portion thereof as they may think proper, into the hands of my said son, or disburse the same in such way as to the said trustees may seem best for his comfortable support and maintenance, such payments and disbursements to be at all times at the sole and absolute discretion of the said trustees.. Held, that the income was not liable to attachment under a judgment against the son.
    2. The income was payable to the son at the discretion of the trustee.
    3. Until the discretion was exercised the son had nothing.
    _ 4. In such case, chancery will not interfere to control the trustee’s discretion.
    5. To subject the income to an execution would end the trustee’s diggretion and defeat the testator’s intent.
    6. This form of guarding the trust and the income from the prodigality of the son is as effectual as an express exclusion of the creditors by the will.
    7. Girard Life Insurance and Trust Co. v. Chambers, 10 Wright 485, distinguished.
    February 10th 1871.
    Before Thompson, C. J., Sharswood and Williams, JJ. Bead, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 187, to January Term 1871.
    This was an attachment execution issued October 1st 1869, by Edmond Keyser against Charles Nicholas, defendant, and Thomas Mitchell and John C. Mitchell, and George P. Bussell and David C. Landis, trading as Bussell & Landis, garnishees. There was no service on the defendant or on John C. Mitchell, one of the garnishees.

      Interrogatories to the summoned garnishees were filed, inquiring as to the indebtedness of the garnishees to the defendant or possession by them of property belonging to him, &c.
    The 7th was:—
    “ Are you a tenant or trustee in any manner of defendant, directly or indirectly ? If ay, does he, through you, directly or indirectly, derive any interest from real estate under the will of his mother, Maria Nicholas ? and if ay, how much, in what manner, and when the same became due and payable ?”
    Thomas Mitchell, one of the garnishees, answered as follows: — ■
    “To the 2d, 3d, 4th and 5th interrogatories he saith: Not otherwise than as set forth in his answer to the 7th interrogatory. * * *
    “ To the 7th interrogatory he saith: That he is trustee for the said defendant under the last will and testament in writing of Mrs. Maria Nicholas, decéased, and the codicil thereto, dated respectively the 21st day of December, A. D. 1854, and the 18th day of December, a. D. 1866, wherein the testatrix, among other things, willed as follows : ‘ 6th Item. I give, devise and bequeath to the Girard Life Insurance, Annuity and Trust Company of Philadelphia, their successors and assigns, one full equal moiety or half part of my store and lot of ground devised to me by my late husband, situate, &c., To hold upon trust, to collect and receive the rents and income accruing from the said moiety of the said premises, and, after deducting and paying thereout all taxes, &c., to pay the said rent or income, or so much thereof as the trustee may think proper and expedient, under all the circumstances of the case, to and for the maintenance and support of my son Charles, during all the term of his natural life, with the intent and purpose that the said trustees may either pay the said income, or such portion thereof as they may think proper, into the hands of my said son, or disburse the same in such way as to the said trustee may seem best for his comfortable support and maintenance, such payments and disbursements to be at all times at the sole and absolute discretion of the said trustee.’ By .the codicil to her said will the testatrix revoked the appointment so as aforesaid made of ‘ The Girard Life Insurance, Annuity and Trust Company of Philadelphia ’ as trustee as aforesaid, and substituted and thereby appointed this respondent to be trustee in their place and stead, &c. * * *
    “ And this respondent further saith, that he has, from time to time since the decease of the said testatrix, received the one-half of the rent of the store so as aforesaid in her said will mentioned, and receipted for the same as trustee as aforesaid, and has held and disposed of the same according to the directions in the said will contained. And at the time of the service of the attachment in this case, &c., he had in his hands, of moneys belonging to the said trust estate, the sum of $397.50, of which amount the sum of $198.75 was necessary to pay off certain taxes and charges become due and payable since the decease of the said Mrs. Maria Nicholas, and the balance thereof, to wit, the sum of $198.75, this respondent holds under the said '.trust for the benefit of the defendant, on and about his comfortable support and maintenance, in respect to which, as he is advised and believes, and so submits to the court, he is the sole and exclusive judge.”
    Russell and Landis, the other garnishees, answered all the interrogatories in the negative, qualifying the '7th by saying that they had rented the storehouse from the testator, and occupied it at the service of the attachment; that they owed for rent $416.66, which they had paid to Thomas Mitchell, the trustee under Mrs. Nicholas’s will.
    Besides the clause given in the garnishee's answer, the will of Mrs. Nicholas contained the following:—
    “ Provided, however, and I do hereby declare it to be my will, that if, in the opinion of the said trustees, it shall become proper and expedient, upon a full consideration of the habits, prospects and conduct of my said son, or of the situation and prospects of his family, if he should marry and have issue, that he or they should enjoy the said trust estate, or some part or portion thereof, absolutely and in full property, of which propriety the said trustees shall be the sole judges; then it shall be .lawful for the said trustees to assign and convey the same, or such part or portion thereof as to the said trustees may seem fit and expedient to vest in him, to my said son Charles, his heirs, executors, administrators and assigns, or to hold the same in trust for any lawful issue that my son may hereafter have, or to make such other disposition thereof as may, in the sole judgment and discretion of the said trustees, be most advisable with reference to the true and permanent welfare and interest of my said son.”
    On the trial, October 22d 1870, before Thayer, J., the plaintiff gave in evidence a judgment for $856.94 against the defendant; the interrogatories and answers; and the. will of Mrs. Nicholas, and closed.
    He then asked the court to charge that he was entitled to recover the amount admitted to be in the hands of the garnishees and the same was liable to attachment.
    The court charged that the money in the garnishees’ hands was not liable to attachment, and that the verdict should be for the garnishees. The jury so found. .
    The plaintiff took a writ of error, assigning for error_the instructions of the court.

      L. Hirst and JR. 0, McMurtrie, for plaintiff in error,
    cited Hamersley v. Smith, 4 Wharton 128; Girard Life Ins. & T. Co. v. Chambers, 10 Wright 486; Still v. Spear, 9 Id. 170; Hill on Trustees 492, 493.
    May 8th 1871,

      T. Mitchell, for defendants in error.
    Shankland’s Appeal, 11 Wright 113; Horwitz v. Norris, 13 Id. 213; Walker v. Walker, 5 Madd. Ch. R. 424; Lavett v. Beirne, 21 Conn. 1; Harding v. Glyn, Lead. C. in Eq. 685; Hill on Trusts 495; Lewin on Trusts 104, ch. xx., § 2; Pink v. De Thuisey, 2 Madd. Ch. R. 157; French v. Davidson, 3 Id. 396; Livesey v. Harding, Tamlyn 460; Thomas v. Dering, 1 Keen 729; Stevenson’s Estate, 1 Parsons 18; In re Wistar, 2 Phila. R. 377; Chew v. Chew, 4 Casey 17; Still v. Spear, 9 Wright 168; and Naglee’s Estate, 2 P. F. Smith 159.
   The opinion of the court was delivered,

by Thompson, C. J.

The question in this case is, whether the income of the trust created for the benefit of Charles Nichols, the defendant, by the will of his mother, was attachable in the hands of his trustee for debts contracted by him without the consent of the trustee ?

We have but part of the will of the testator on our paper-books, and we must presume it is the material portion of it in the case, otherwise the whole would have been given by the defendants in error.

The will is dated the 21st of December 1854, with a codicil dated the 18th of December 1866, merely changing the trustees. After designating the trustee and describing the property intended to be put in trust, the will reads : “ To hold upon trust, to collect and receive, the rents and income, accruing from the moiety of the said premises, and after deducting thereout, all taxes and charges, to pay the said rents and income, or so much thereof, as the trustee may think proper and expedient under all the circumstances of the case, to, and for, the support and maintenance of my son Charles, during the term of his natural life, with the intent and purpose, that the said trustee may either pay the said income, or such portion thereof as he may think proper, into the hands of my said son, or disburse the same in such way as to the trustee may seem best for his comfortable maintenance, such payments and disbursements to le at all times at the sole and absolute discretion of the said trustee.” The next item of the will (the seventh), provides for a contingent disposition of the corpus of the property, .also at the discretion of the trustee.

Because this will contains no prohibition of liability of the income to debts of the cestui que trust, it is claimed on the authority of the Girard Life Insurance, Annuity and Trust Co. v. Chambers, 10 Wright 485, that it is subject to the attachment execution. I need not stop to discuss that case, and distinguish it from this, for in it there was an express direction to the trustees to pay over absolutely to the cestui que trust, or to his order, the income of the trust property quarterly, without the exercise of the least discretion on the subject by them. The income was therefore held to be his own absolutely, and he could invoke the aid of a chancellor to compel payment by the trustee to him of the amount quarterly as provided for. So might an assignee or creditor of the cestui que trust have done on the samp principle. But here nothing is given to the cestui que trust, excepting at the discretion of the trustee. It was no doubt intended by the testator that a comfortable maintenance should be provided from the trust estate for her son; but that was to be both in amount and mode, “ at the sole and absolute discretion of the trustee.” This is an express condition of the trust, and until that discretion has been exercised the cestui que trust has nothing: Hill on Trustees 494, 495. In such case, chancery will not interfere to control the trustees’ discretion : Id. 495. To subject the income to execution at the suit of a creditor, would end all discretion of the trustee over the income, and in effect, utterly defeat the intent of the testator in creating it. We cannot but regard this form of trust to be as effectual in guarding a trust and its income against the prodigality of its beneficiary, as would be a .positive exclusion of creditors in the will of the donor. Where the amount results from the discretion of the trustee, and that discretion is personal, no sum, eo nomine, exists to be attached. It only belongs to the cestui que trust when it is paid, or in some other way made over, or set apart to him. We think, therefore, the attachment in this case against the trustee was entirely inoperative to bind any interest of the defendant in the trust estate, and the judgment must be affirmed.

Judgment affirmed.


text:
    Eyre versus Yohe et al.

    1. In a suit on a negotiable note by an endorsee against the maker, the affidavit of defence was that the note was the property of the payee, that the endorser’s name was used to avoid a defence of usury against the note, that the note had been renewed four times and at each time the payee received usury and the defendant was entitled to a defence to the extent of the usury. The defendant did not aver that he expected to be able to prove the defence alleged. Held, to be a sufficient affidavit of defence.
    2. It is not necessary on such positive affidavit that defendant should aver his ability to prove the defence alleged, especially as the defendant is a competent witness on the trial.
    February 10th 1871.
    Before Thompson, C. J., Sharswood and Williams, JJ. Bead, J., at Nisi Prius.

      May 8th 1871,
    Error to the District Court of Philadelphia: No. 241, to January Term 1871.
    This was an action of assumpsit, brought October 15th 1870, by Samuel Yohe and Edward A. Depew, trading as Yohe & Depew, against Abraham P.'Eyre. The cause of action was the following note:—
    “$2703.75. “Philadelphia, June 26th 1870.
    “ Three months after date I promise to pay to the order of James Gordon twenty-seven hundred and'three 75-100th Dollars, without defalcation, for value received.
    A. P. Eyre.
    Endorsed “ James Gordon, by his attorney in fact,
    Alonzo Gordon.
    L. Doster, Jr.”
    The defendant filed an affidavit of defence: “ that the note sued upon in this action is the property of one James Gordon, to whom it was given by deponent, and that the plaintiffs are merely suffering and permitting their names to be used for the purpose of avoiding a defence which deponent has thereto.
    “ That the sum originally loaned to deponent by an agent of said Gordon, for which this note was given by deponent to said Gordon’s agent, was $1888.75, upon which there have been four successive renewals for three months each, upon each of which there was demanded and exacted by said Gordon’s agent, and it was at each time agreed by and between said Gordon’s agent and deponent, and demanded of and from deponent, and added to the amount of each of said notes with the knowledge of said James Gordon, and for his benefit, the sum of $203.75, making in all $815, usurious and unlawful discount and interest, &c. * * *
    “ Deponent therefore claims a deduction of $815 on the note now sued upon, being the amount of usurious and unlawful discount over and above six dollars to the hundred allowed on said sum.”
    The judgment was entered against the defendant for want of a sufficient affidavit of defence, and the damages were ’ assessed at $2735.79.
    The defendant took out a writ of error, and assigned for error the entering of the judgment.

      L. Hirst, for plaintiff in error, was stopped by the court.

      O. A. Law, for defendant in error.
   The opinion of the court was delivered,

by Thompson, C. J.

We cannot agree in opinion with the learned judge below, that the affidavit of defence in this case was insufficient to prevent judgment against the defendant for the amount of the plaintiff’s claim. It positively avers that the note in suit is still the property of the payee, James Gordon, and that the names of the plaintiffs are only used to avoid a. defence to it to the extent of the usance, or premium paid, for forbearance beyond the legal rate of six per cent, per'annum, which, according to the affidavit of defence, amounted to $815 for four renewals of a note originally for $1888.75. Whether partly paid, or partly paid and partly included in the new note, it was a defence to the note, pro tanto, in the hands of the original payee. That it was so in fact when suit was brought the affidavit explicitly avers, and this is to be taken as true by the court, for all the purposes of the . Affidavit of Defence Law: Act of 28th May 1858, Purd. 561.

It was not necessary, in a positive affidavit like this, to allege that the defendant expects to be able to prove the defence alleged in the affidavit, and especially now, when the affiant himself will be a competent witness on the trial. For these reasons the judgment must be reversed.

Judgment is reversed, and a procedendo is awarded.


author: by Sharswood, J. Agnew, J.

text:
    Palairet’s Appeal.
    1. Retrospective legislation is not of itself unconstitutional, except so far as it has an effect prohibited by the fundamental law.
    2. An act which operates retrospectively to take what is by the existing law one man’s and without his consent transfer it to another, with or without compensation, violates the Bill of Rights.
    3. “ The law of the land” means due process of law by which what one alleges to be his property is adjudged not to be his, or it is forfeited upon conviction by his peers of a crime for which by law it was subject to forfeiture when the crime was committed. ' •
    • 4. The right of eminent domain being for the'safety and advantage of the public overrides all rights of private property.
    5. The legislature with the executive is upon all questions of policy the exponents of the will of the people.
    6. The Act of April 15th 1869 for extinguishment of ground-rents is unconstitutional.
    February 14th 1871.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Appeal from the decree of the Court of Common Pleas of Philadelphia: No. 221,.to January Term 1871.
    The proceeding was commenced February 24th 1871, by a petition in the name of the Commonwealth, at the relation of John Ganser against John G..Palairet and others, trustees, &c., of Mary Ann Palairet, under the Act of April 15th 1869, Pamph. L. 1869, p. 47, Purd. 1570, which is as follows:—
    “ An Act to provide for the extinction of irredeemable rents.

      “ Whereas, there were formerly reserved or created in Phila-: delphia and other parts of this Commonwealth, yearly rents, which in their nature or by lapse of time are or have been irredeemable by the owners of the land whereout they issue; in consequence whereof the power of such landowners to sell or mortgage their land is greatly limited.
    “ And whereas, the policy of this Commonwealth has always been to encourage the free transmission of real estate, and to remove restrictions on alienation, so that it is and is hereby declared to be necessary for the public use to provide a method of extinguishing such irredeemable rents, having a due regard for private rights: therefore,
    “ Section 1. Be it enacted, &c., That it shall be lawful for any owner of land, on or out of which any irredeemable rent has been charged or reserved, to apply by petition, in the name of this Commonwealth, at his own relation, to the Court of Common Pleas for the county in which such land shall be situated, for an order on the owner of such rent, to show cause why a decree for the extinguishment thereof should not be made on his being compensated therefor, in the manner hereinafter provided; whereupon the court shall cause a citation to issue to the owner of the rent, according to the practice of the said court; and if he shall be unknown, or not a resident of the said county, the court shall cause notice to be given to him by advertisement, as they shall deem advisable, and the notice so given shall be deemed and taken-to be actual service for all purposes.
    “ Section 2. On the return of such citation, or after publication as aforesaid, if the owner of the land and the owner of the rent do not agree on the terms on which the former shall be allowed to purchasé the rent, then the court shall cause a venire to issue, directed to the sheriff, requiring him to summon a jury of twelve disinterested freeholders of the county, who shall assess and determine the damages which the owner of the said rent will suffer by the compulsory extinction of the same, which shall not be estimated at less than twenty years’ purchase thereof; and the damages being so assessed, and the inquest confirmed by the court, it shall be lawful for the owner of the land to pay or tender to or for the use of the owner of the rent, in such manner as the court shall direct, the sum so found, together with all the costs of the proceedings; and whereupon the court, upon due evidence of such payment or tender, shall enter a judgment that the said rent shall thenceforward be taken to be extinguished, and no action thereafter for the recovery thereof shall be brought in any court of this Commonwealth.
    “ Section 8. If such rent shall be held wholly or partly by any person under any disability, or absent from the country, or by persons for successive estates, or on trust, then the court shall have all such power to direct in'what way the said damages, so assessed, shall be tendered, paid or secured, as a court of equity could have in the premises; and if the owner of the rent shall be unknown, then the money shall be paid into court, to be invested in the loan of this Commonwealth to the use of such owner; and if no claimant shall appear therefor within the space of ten years thereafter, such loan shall be transferred by the state treasurer to the sinking fund provided by law. * * *
    “ Section 5. That if the petitioner in any such case shall, after the confirmation of the return of the inquest, fail for the space of three months to pay or tender the damages and costs aforesaid, according to the directions of the court, it shall be lawful for the court thereupon, at the option of the respondent, to enter a judgment for the payment of such damages and costs by the petitioner, to be enforced by execution, as other judgments in the said court, or else to dismiss the petition, and vacate the.proceedings thereon at the petitioner’s costs.”
    The petition-set forth that the relator was seised of two lots of land in Philadelphia, subject to three irredeemable ground-rents, which are now owned by J. G. Palairet arid others, trustees above named.
    The petition prayed for—
    An order and citation against the defendants to show cause why a decree for the extinguishment of the above-named ground-rents should not be made, upon their being compensated therefor, according to the terms and in the manner set forth in the above Act of Assembly.
    The answer of the defendants admitted that they were seised of the three irredeemable ground-rents, as stated in the petition, and submitted to the court that their title to the said three yearly ground-rents, so held by them in trust, co.uld not be divested or taken away from them, unless the same should be required by the Commonwealth for public use, in exercise of her right of eminent domain; and that where no public right is involved, and the question was merely between the said John Ganser, as owner of the property, and themselves, as the owners of an estate or encumbrance thereon, no act of the legislature could divest, or at all affect their right or title in and to the same.
    After argument the Court of Common Pleas decreed the extinguishment of the ground-rents, Ludlow, J., delivering the following opinion:— '

    “ Upon the 15th day of April 1869, the legislative department of the government of Pennsylvania, with the approval of the executive of the Commonwealth, declared in the most formal manner; that- the policy of the state, which has always encouraged the free transmission of real estate and removed restrictions upon alienation, required the absolute extinguishment of irredeemable-rents, and thereupon because of a public necessity, which existed, and for the public use, a method is provided by which these rents may be extinguished, only, however, upon due notice to all parties interested, and upon ample compensation being awarded, which ‘ shall not be estimated at less than twenty years’ purchase thereof.’ Is this act constitutional ? That question can be determined only by the judicial department of the government, and in order to settle it the petition and answer have in this case been filed, and this Act of Assembly must now receive a judicial construction. It may be noticed, in passing, that the preamble of the law is not the law itself; it, however, serves a useful purpose, because it explains the object and intention of the legislature, and we may therefore safely affirm, that the legislature intended , to accomplish an act, not for private ends, but for the public good; reasons of state policy affecting the masses of the people led to the passage of the act, and the governor must have concurred in- the views entertained by the legislature, for he gave his official approval to the act.
    “Here, then, is the exercise of the right of eminent domain, and because it embraces a class of cases of a peculiar nature, challenges our careful consideration.
    “ It cannot be denied that a cursory view of this legislation inclines one to reject it as unconstitutional; first, .because it divests a vested estate; and secondly, because it appears to violate that cardinal doctrine of our organic national law, which declares that a contract is a sacred thing, and when once made shall not be destroyed; this view, however, will either be very seriously shaken, or wholly changed, by a more deliberate examination of the subject. Jurists and other writers have based the origin of the .right of eminent domain upon various grounds; one calls it the ‘ transcendental right;’ another declares that title to all real estate is so vested in the Commonwealth, that the right to use and enjoy exists, only subject to the paramount authority of the state; but, after all, we think the true origin of this right, as well as the occasion for the exercise of.it, depends upon that public and overwhelming necessity which compels the supreme power, for the welfare of the entire community, to enact laws which, in particular cases, work hardships to individuals, but which must inevitably benefit the public. Property may, therefore, be taken, but never -without paying to the owner thereof just compensation. What but a political necessity justified the legislature of Pennsylvania, ■on the 27th day of November, A'. D. 1779, in enacting what was called The Divesting Act,’ by virtue of which the descendants >o'f the'founder of the Commonwealth lost their proprietary rights in this Commonwealth ? The constitutionality of that act has never, to our knowledge, been questioned, nor could it be successfully, .Tor public,.poliey.-fequired just such legislation, in order to adapt the laws of the land to the altered political condition of the- people. Even in England, the old tenures have, one after the other, given way before the progressive ideas of enlightenéd jurists and statesmen, and although the principles flowing from these tenures are so interwoven into the very fibre of the law that they cannot be eradicated, yet the fact remains unshaken that public policy required these changes to be made. They are going on even to this day. A wise policy has, in this Commonwealth, destroyed estates in fee tail, and thereby enlarged estates, and has also declared that no interest in property, real or personal, shall exist beyond a specified period of time. Land has been taken by the supreme power for various purposes; we may mention, by way of illustration, the' fact, that ferries have been established, mills erected, railroads built and public parks created, because of a necessity which was imperative.
    “ This necessity has been sometimes political, sometimes social,' but has always -existed, and the exercise of the power of the Commonwealth has always involved and prompted the convenience and welfare of the people.
    “ The title of the founder of the Commonwealth and his descendants could not exist in a republican Commonwealth. The existence of estates in tail and of estates created in perpetuity, destroyed the symmetry of 'our system of government; and while on the one hand the legislature and the courts swept away these clogs to the free alienation of land and the enjoyment of estates on the other, whatever was necessary for the public good was taken (subject to the right of compensation), as the wants of an increasing population rendered it necessary.
    “ Does a necessity now exist which requires the destruction of irredeemable rents ? '
    “ The question will be best answered'by considering the nature of the rents, and the result which flows from the fact that they are irredeemable. A ground-rent is a rent service; it has always been treated as real estate, and, being irredeemable, creates an estate in perpetuity with this peculiar feature, that a sale for arrearages relates back to the date of the deed, and destroys the lien of subsequent encumbrances.
    “ Can it be wondered at that a property subject to an irredeemable rent can neither be freely alienated, improved nor encumbered ?• An irredeemable rent clings like a barnacle, and when numbers exist (as is the case in this country), it becomes no longer a question involving the rights of individuals, but one which affects the public interests, because their existence paralyzés individual effort and thereby .hinders the creation of enterprises which develop the wealth of the Commonwealth, unjustly puts in jeopardy the estates of individuals by- reason of sales for arrearages not known to exist, and especially destroys tbe hope of improvement and the free alienation of real estate.
    “ While the legislature have not interfered with that which was valuable, they have from time to time removed the evils of the system, and by the Act of 1869 have finally destroyed that species of property, the existence of which was found to be incompatible with the genius of our free institutions, and the healthy and vigorous growth of our system of social and political economy.”
    The respondents appealed to the Supreme Court, and assigned the decree of the Court of Common Pleas for error.
    6r. W. Biddle and W. S. Bawle, for appellants.
    It is the province of the courts, not of the legislature, to interpret the words “public use,” in the Constitution: The West River Bridge Co. v. Dix, 6 How. 529; Pittsburg v. Scott, 1 Barr 314; Keeling v. Griffin, 6 P. F. Smith 307. The purpose for which this act authorizes the taking of property is not a public use. In order to justify the taking of property under the right of eminent domain, it must be taken and held by the state or its grantee, subject to the state’s control, and for specified public uses, which the public has a legal right to enforce: Osborn v. Hart, 24 Wisconsin 89; Whiting v. The Sheboygan Railroad, 9 Amer. Law Reg. (March 1870) 156; People v. Salem, Id. 487; Ladlee v. Langham, 34 Ala. 311; Varick v. Smith, 5 Paige 159; People v. Palatine, 53 Barb. 70. Only whore the public use expressed in the grant attaches to the whole of the property taken under it, so as to give the public immediate, compulsory and paramount rights over it, in the hands of the grantee, can the right of eminent domain support the grant: East St. Louis v. Louisiana St. John, 47 Ill. 463; Jones v. Tatham, 8 Harris 393; Smedley v. Erwin, 1 P. F. Smith. 451; Jessup v. Loucks, 5 Id. 361; Ervine’s Appeal, 4 Harris 256 ; Norman v. Heist, 5 W. & S. 174.

      H. Wharton, for appellee.
    The objection that the act divests vested rights is not sound: Grim v. Weissenberg, 7 P. F. Smith 435; Durach’s Appeal, 12 Id. 491; Bambaugh v. Bambaugh, 11 S. & R. 191; Price v. Taylor, 4 Casey 95 ; Criley v. Chamberlain, 6 Id. 167; License Cases, 5 How. (U. S.) 589, 632; Blaise v. Freeland, 100 Mass. 140 ; Price v. Maxwell, 4 Casey 23; Miller v. Porter, 3 P. F. Smith 292; Cooley on Constitutional Limitation 358.
    This act is to accomplish a public object, and is therefore not 'taking the property of one man to give it to another: Concord Railroad v. Greeley, 17 N. H. 57; Dingley v. Boston, 100 Mass. 544; Fiske v. Framington Manuf. Co., 12 Pick. 68; Boston and Roxbury Mill Dam Corporation v. Newman, Id. 489 ; Hagen v.
      Essex County, 12 Cush. 477; Olmstead v. Camp, 33 Conn. 532; Burgess v. Clarke, 13 Ired. 109. Lateral railroads are created on the same principle. The constitutionality of the laws creating them is upheld in Harvey v. Thomas, 10 Watts 63; Harvey v. Lloyd, 3 Barr 331; Schoenberger v. Mulhollan, 8 Id. 146 ; Hays v. Risher, 8 Casey 169; Brown v. Corey, 7 Wright 495.
    May 8th 1871,
    If the use is of a public nature, the legislature are the sole judges whether it is sufficiently beneficial to warrant taking private property for it: In the Matter of Townsend, 39 N. Y. 171; Beckman v. Saratoga Railroad, 3 Paige 73.
    The right of eminent domain extends to every species of property, land, franchises and contracts of all kinds: West River Bridge Co. v. Dix, 6 How. 507; Mills v. St. Clair County, 8 Id. 569; Richmond, &c., Railroad v. Louisa Railroad, 13 Id. 71; Matter of Kew, 42 Barb. 119; and cases in note to page 526 of Cooley on Constitutional Limitations.
   The opinion of the court was delivered,

by Sharswood, J.

Retrospective legislation is certainly not in itself unconstitutional, unless so far as it has an effect prohibited by the fundamental law. If, however, an Act of Assembly, whether general or special, public-'er private, operates retroactively to take what is, by existing la% the property of one man, and, without his consent, transfer it tóf another, with or without compensation, it is in violation of that cAse in the Bill of Rights, Const., Art. IX., sect. 9, which declaré® that no man “ can be deprived of his life, liberty or property; ^unless by the judgment of his peers or the law of the land.” If-.this is true of a person accused of crime, to whom literally the words are applied, á fortiori is it so as to one against whom no accusation is made. By the “law of the land,” is meant, not the arbitrary edict of any body of men — not an Act of Assembly, though it may have all the outward form of a law — but due process of law, by which either what one alleges to be his property is adjudged not to be his, or it is forfeited upon conviction by his peers of some crime, for which by law it was subject to forfeiture when the crime was committed. If this be not so, every restriction upon legislative authority would be a vain formula of words, without life or force. For what more can the citizen suffer than to be “taken, imprisoned, disseised of his freehold, liberties and privileges; be outlawed, exiled and destroyed; and be deprived of his property, his liberty and his life,” without crime ? It will not have escaped notice that in the clause of the Constitution referred to, property is put in the same category with liberty and life, and if an Act of Assembly can deprive a man of his property, without a trial and judgment for even legal cause of forfeiture, it may in like manner deprive him of his life or his liberty, imprison him in a dungeon or hang him without judge or jury. It is true that there are other more special declarations which give additional securities to liberty and life, but by classing all three together in this provision of the fundamental law, the people have declared their equal inviolability. There are also other special provisions as to security of property — adapted to the dangers with which in a democratic form of representative government it is more especially threatened. But neither those clauses which relate to life and liberty, nor those which regard property, weaken the power of this grand primary inhibition, which the sturdy barons of England, arms in hand, wrested from their sovereign at Runnymede, Nullus liber hom:o capiatur vel imprisonetur aut disseisiatur de libero tenemento suo vel libertatibus vel liberis eonsuetudinibus suis, aut utlagetur, aut exuletur, aut gliquo modo destruatur; nee super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum vel per legem terree. This is still the corner-stone of our liberties. It becomes us to watch it with the greatest vigilance — not to suffer it to be undermined on'any pretext, however specious. To this the most solemn sanction of our official oath applies with the greatest force, for while other parts of the Constitution may be merely directory, the people have most solemnly and emphatically said as to the 9th article, “ To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government, and shall for ever remain inviolate.”

It has become, then, a fundamental axiom of constitutional law, not only in this, but in every other state of this Union, that the legislative power cannot, either directly or indirectly, without the consent of the owner, take private property for merely private use, with or without compensation. In a case arising in Rhode Island, which, without a written constitution, except her charter of 15 Car. II., which invested the General Assembly with power to make laws “ so as such laws, &c., be not contrary and repugnant unto, but as near as may be, agreeable to .the laws of England, considering the nature and constitution of the place and people there,” Mr. Justice Story, delivering the opinion of the Supreme Court, held this language: “ In a government professing to regard the great rights of personal liberty and of property, and which is required to legislate in subordination to the general laws of England, it would nob lightly be presumed that the great principles of Magna Charta were to be disregarded', or that the estates of its subjects were liable to be taken away without trial, without notice and without offence. Even if such authority could be deemed to have been confided by the charter to the General Assembly of Rhode Island, as an exercise of transcendental sovereignty before the Revolution, it can scarcely be imagined that that great event could have left the people of that state subjected to its uncontrolled and arbitrary exercise. That government can scarcely be deemed to be free, where the rights of property are left solely dependent upon the will of a legislative body, without'any restraint. The fundamental maxims of a free government seem to require that the fights of personal liberty and private property should be held sacred.” He adds: “We know of no case in which a legislative act-to transfer the property of A. to B. without his consent has ever been held a constitutional exercise of legislative power in any state in the Union. On the contrary, it has been constantly resisted as inconsistent with just principles by every judicial tribunal in which it has been attempted to be enforced:” Wilkinson v. Leland, 2 Peters 657. In this, assertion he is fully sustained. A few leading out of a much larger •number of cases may be cited: Varick v. Smith, 5 Paige (N. Y.) 187; Hoke v. Henderson, 4 Devereaux 1; Norman v. Heist, 5 W. &. S. 171; Pittsburg v. Scott, 1 Barr 314; Lambertson v. Hogan, 2 Id. 24; Brown v. Hummel, 6 Id. 86; Dale v. Medcalf, 9 Id. 108 ; Austin v. Trustees of University, 1 Yeates 260; Concord Railroad Co. v. Greeley, 17 N. H. 57; Gillan v. Hutchinson, 16 Cal. 163; Coffin v. Rich, 45 Maine 509; Southard v. Central Railroad Co., 2 Dutch. 13; Kelly v. McCarthy, 3 Bradf. 7; Powers v. Bergen, 2 Seld. 368. We need not stop to show that when such an effect is produced by the retrospective operation of a public and general statute, it is equally obnoxious to the objection as when directly attempted by a private special act. The precedents make no distinction between the cases: Greenough v. Greenough, 1 Jones 489 ; McCabe v. Emerson, 6 Harris 111; Bolton v. Johns, 5 Barr 149.

That this is the operation of the Act of April’ 15th 1869, entitled, “ An Act to provide for the extinction of irredeemable rents,” Pamph. L. p. 47, upon the’ constitutionality of which we are now to pass, is, we think, very manifest. There was* undoubtedly vested in the appellants, before the proceedings under this act were instituted-in .the court below, by the law of the land, an estate in an irredeemable ground-rent issuing and payable out of the lot owned by the appellee — an estate in fee simple, descend-able, devisable, alienable. That estate by the decree of the court appealed from, if valid, was extinguished; in substance, it was transferred and vested, in the appellee and merged in the land. This was without the .consent of the appellants. Why does it not fall within the well-settled principle before referred to ?

It is contended that the property of the appellants has been 1 taken in the exercise by the Commonwealth of her right of emi- f nent domain, which she may exercise herself or confer upon cor- J porations or individuals. If so, as it is conceded that full provi- j sion for compensation is made, it is within the saving of that otherJ section of the Declaration of Rights — “ nor shall any man’s pro-: perty be taken .or applied to public use, without the consent of his representatives and without just compensation being made:” 'Const.-Penna., Art. IX., § 10. No doubt the right of eminent •idomain, being for the safety and advantage of the public, overrides all rights of private property. But for what public use has this estate of the appellants been taken and applied ? It has been contended, as the preamble of the act declares, that “ the policy of this ■ Commonwealth has always been to encourage the free transmission of real estate, and to remove restrictions on alienation, so that it is, and is hereby declared to be, necessary for the public use to provide’a method of extinguishing such irredeemable rents, having a due regard for private rights.” But if this is the kind of public use for which a man’s property can be taken, there is practically no limit whatever to the legislative power. It would result that whenever the legislature deem it expedient to transfer one man’s- property to another upon a valuation, they can effect their object. What that' department of the government considers and pronounces to be the policy of the Commonwealth, the judicial department must accept as such. The members of the two houses with the executive, are, upon all questions of policy, the exclusive exponents of the will of the people. Let us test the principle now involved, by a case more extreme than' that before us, but which will be experimentum eruais. If we can show that a principle logically carried out leads to an absurdity, it is conclusive against it. Suppose then the legislature should adopt what has been a favorite theory with many political economists, that small farms are injurious to the community, prevent the full development of the agricultural resources of a country, and ought therefore, as speedily as possible, to be united and formed into large ones. ' Then reciting this to be the true policy of the statej let them provide that every farm of less than 100 acres shall be attached to and become the property of the adjoining owner of a larger farm at a valuation to be determined by a jury. When the King of Samaria coveted the little vineyard of Naboth hard by his palace, that he might have it for a garden of herbs, and offered to give' him a better vineyard than it, or if it seemed good to him the worth of it in money, he was met by the sturdy answer, — “ The Lord forbid-it me that I should give the inheritance of my fathers unto thee.” Would any one be hardy enough to stand up in a republican country and claim for its government a power which an eastern monarch dared not to assume ? It was well remarked by Mr. Justice Gilchrist in the Concord Railroad Co. v. Greeley, 17 N. H. 57, that “ even if the legislature should declare that an act taking the property of A. and giving it to B. as his private property, was an application of it to public uses, no one would contend that such a declaration,made that public which in its nature and object was private.” It is not necessary to define what is a public use, — it is quite sufficient to say that the object as set forth in the preamble of this act is not a public use within the right of eminent domain of the state. Other instances may be mentioned of the dangerous extent of this principle should it be judicially approved that the declaration of a general policy will constitute a valid public use. In the course of the development of the immense mineral resources of this state, it has become very common to separate the estate in the mines from the estate in the surface. This has been held to be lawful — as in entire conformity with the established principles of the common law of England, which is the substratum of our system of jurisprudence. It may be found, however, in course of time to be a very inconvenient and even perilous state of things — more so than an intangible, incorporeal hereditament, such as a ground-rent. The legislature may adopt the policy of- preventing it, and may well, by laws acting prospectively, prohibit the creation of such separate^ estates in the same land. But how'as to existing estates which have been lawfully created under the sanption of the law and the decisions of this court, are they to be subject to the legislative fiat? .Can an Act of Assembly compel the owner of the minerals to surrender his- property to the owner of the soil at the valuation of a jury ? Can a law say that twelve men shall determine at what price I shall sell my property to another ? In the consideration of the practical bearings- of this question, we must strike out of the Act of 1869 the provision that the compensation to be awarded shall not be less than twenty years’ purchase of the rent. If this is a legitimate taking for public use, that clause might well have been omitted. Whenever property is so taken, all that is necessary is, that some impartial tribunal shall estimate the damages sustained by the owner, and in the ease of any corporate body or individual invested with such privilege, that such corpora^tion or individual shall make compensation or give adequate security therefor before such property shall be taken: Const., Art. VII., § 4. What would be the value of coal-mines and mineral estates if the owners could be deprived of them at any time to be selected by the surface proprietor* by the valuation of a jury, upon the principle that private property may be taken from one man and transferred to another, on the ground that it is the policy of the Commonwealth to put an end to such estates sepa-, rate from the surface of the soil ? There are many rights of way resting on express grant — bought and paid for — but now very burdensome and annoying to the owners of the land over which they pas's; can they be blown away by the legislature upon this same plea ? I say nothing of private roads laid out by authority of law and paid for, nor of ways resting upon prescription and lapse of time, on account of the 1st section of the Act of April 21st 1846, Pamph. L. 416, which gives the Courts of Quarter Sessions power to vacate such roads and ways without compensation, and the decision in Stuber’s Road, 4 Casey 199, which affirmed the constitutionality of that act, except individually to express my surprise that the same learned judge who wrote the opinion in that case,, when he came to decide Baggs’s Appeal, 7 Wright 512, did not advert to his first opinion. It is enough for the present purpose to say that the decision in Stuber’s Road is not put on the ground of the exercise of the right of eminent domain. That act excepts private roads resting upon express grant, the evidence of which is still in existence; and apart from the fact that no compensation is provided, it is evident that private property, though derived from express grant or contract, is not therefore exempt from the right of eminent domain. I put aside the decision in Stuber’s Road, as resting upon grounds peculiar to itself, not affecting this argument. One more illustration of the extent to which the principle may be carried will he sufficient. A man provides by his will an annuity for his widow for her life, and charges it on his lands, or if he dies intestate, the law does the same thing on partition among his heirs. Here is an encumbrance of the same character as a ground-rent, which though not perpetual, may still continue for an indefinite period — the life of the widow. It is within the policy recited in this preamble — it is an impediment to the free transmission of real estate, and a restriction on alienation which ought to be removed out of the way. If-' an act should be passed extinguishing this annuity of the widow on a valuation of her life interest — even though it were provided that it should not be less than the value fixed for.such an annual sum by the annuity tables — would it not shock the moral sense and feeling of the entire community ? Yet wherein does that case differ from the one before us except in immaterial circumstances ?

It is said that the Act of November 27th 1779, 1 Sm. L. 479, commonly called the Divesting Act, by which the estates of the proprietaries were vested in the Commonwealth, is an instance in which private property was taken on reasons of policy. That act, like the revolution from which its necessity arose, can be a precedent for nothing in the ordinary course of legislation. It is well' vindicated by its preamble, which claims that the rights of property and powers of government in William Penn and his heirs were stipulated to be used and enjoyed as well for the benefit of the settlers as for his own particular emolument, and that these rights and powers could no longer consist with the safety, liberty and happiness of the people. It is by no means clear that the Commonwealth, on the principles of public law, had not a strict legal right to all that was resumed, and that the compensation she made was not an act of liberality, as indeed it is declared in the act, to be in “ remembrance of the enterprising spirit which distinguished the founder of Pennsylvania,” as well as in consideration “of tbe expectations and dependence of his descendants.” It is true that William Penn, in virtue of his patent from Charles II., was the owner in fee simple of all the soil of Pennsylvania, but it is also’ true that with the soil there was granted to him and his heirs many royal franchises and prerogatives which belong to sovereignty. The province was a feudal seignory of which, while the crown remained paramount or liege lord, the Penns held the mesnality and were, as they were termed, the chief lords of the fee. The statute of Quia emptores was declared not in force. They stood then in many respects in-the shoes of the crown. They accordingly maintained in a long series of contests with the provincial Assemblies that their private estates — the manors and other property reserved by them from sale and settlement — were not the subjects of taxation. In the “Historical Review of the Constitution and Government of Pennsylvania,” published in London in 1759, which, though not written by Dr., Franklin, was composed under his direction (1 Sparks’ Franklin 245, 3 Ibid. 105), the history of these contests is given, and it is shown how valuable the private estates were; the manors especially selected by their surveyors were the choicest lands to be found — the garden spots of the Province. These private, estates were all exempted from the operation of the Divesting Act. The unappropriated lands the Assemblies n'ever claimed to tax. These, with the purchase-money due in law or equity upon so much as had been appropriated by grant or supplement, and the quit-rents which formed a part of the purchase-money, were in all respects like the crown lands in the other colonies, which it was universally conceded, passed by the. Revolution, and treaty of peace acknowledging their independence and sovereignty, to the several states within whose charter limits they were situated. It was then a very grave question, and the tribunals'before which only it could then be litigated would have been the courts of Pennsylvania, one of the parties to the suit, as the Articles of Confederation made no provision for such a case. It was wise, therefore, in the Penn family to accept the one hundred and thirty thousand pounds sterling granted to them, and that acceptance put an end to all question as to the constitutionality of the Divesting Act.

It has also been pressed upon us that private roads as well as lateral railroads are cases parallel with the act now before us, as in them, on mere grounds of policy, private property is taken for a private use on compensation made. As to private roads, they originated at a very early period by an Act of Assembly of February 20th 1735-6, Hall & Sellers 188, re-enacted in the 17th section of the Act of April 4th 1802, 3 Sm. L. 512, and incorporated by the revisers in the General Road Law of June 13th 1836, Pamph. L. 555; yet it was not until.the year 1851 that the question of the constitutionality of these acts was raised before this court in Pocopson Road, 4 Harris 15, a case from Chester county. The point seems to have been elaborately argued by Mr. P. F. Smith, for the appellant, and many authorities cited; but Mr. Lewis, for appellée, contented himself with citing Harvey v. Thomas, 10 Watts 68. In the short opinion, per curiam, affirming the proceedings, no notice whatever was taken of the point. In some of our sister states similar acts have bpen held to be unconstitutional : Taylor v. Porter, 1 Hill 140; Clack v. White, 2 Swan (Tenn.) 450; Dickey v. Tennison, 47 Mo. 373; but their constitutionality was well vindicated in Hickman’s Case, 4 Harrington 580, in which it is said in the opinion of the Supreme Court of Delaware: “ It is a part of the system of public roads, essential to the enjoyment of those which are strictly public; for many neighborhoods as well as individuals would be deprived of the benefit of the public highway, but for outlets laid out on private petition and at private cost, and which are private roads in that sense, but branches of the public roads and open to the public for the purposes for which they are laid out.” As to lateral railroads, the constitutionality of the Act of May 5th 1832, Pamph. L. 501, was eventually sustained not upon the ground assumed in Harvey v. Thomas, 10 Watts 63, but upon the better reason, that the public had the u?e- of them for the purpose for which they were used: Hays v. Risher, 8 Casey 169; Brown v. Corey, 7 Wright 495; Keeling v. Grriffin, 6 P. F. Smith 307. It is not necessary to examine those cases in which, in some of our sister states, acts authorizing mill-owners to flood the lands of an upper riparian proprietor, on compensation, may have been held good. “ They were designed,” sjiys Chief Justice Shaw, “to provide for the most useful and beneficial occupation and enjoyment of natural streams and water courses where the absolute right of each proprietor to use his own lands and water privileges at his own pleasure cannot be fully enjoyed, and one must of necessity in some degree yield to the other Fiske v. Framingham Man. Co., 13 Pick. 68; Hazen v. Essex Co., 12 Cushing 475.

I pass from the argument that this act is an exercise of the right of eminent domain. I have given more particular attention to it, because it is evidently the ground upon which the lawmakers themselves placed their 'right to pass the act in question. That respect which is due by this court to the co-ordinate branch of government, made it proper that this point should be fully examined and discussed.

If this act cannot be sustained on this ground, then it seems clear that it impairs a contract, and is therefore prohibited as well by the Constitution of the United States, Art. I. § 10, as by the Constitution of this Commonwealth, Art. IX. § 17. Here is a perpetual covenant, — personal, as to the original covenantor, but running with the land, — to pay an annual rent issuing out of it; and the act by the proceeding under it, authorizes a decree which releases one of the parties from the performance of his contract upon the doing of a collateral act, not stipulated in the contract itself. No one hah ever supposed that an Act'of Assembly could authorize, in the case of a lawful existing contract, one of the parties to tender a collateral thing in satisfaction or extinguishment of it, whatever the value of that thing might be as compared with the damage sustained by the breach. Yet, in effect, that is just what is done by this act. The- covenant is to pay an annual rent for ever; a jury are authorized to say what principal sum shall be a satisfaction and extinguishment of that covenant; a collateral thing not provided for in the contract, and which might as well be anything else than money.

Two other positions have been taken to sustain this act which it is proper to notice. It is urged that after all it is only the exercise by the legislature- of the power to authorize the conversion of land into money; a power frequently exercised, and confirmed - by this court in Norris v. Clymer, 2 Barr 285, and Sergeant v. Kuhn, Ibid. 393. But, this power to authorize conversion has never been recognised as constitutional by this court, except in the case of the property of persons under disabilities, or where there were contingent interests,-whose owners had not come into existence, and that, too, with the consent of those standing in the fiduciary relation of trustee, guardian or committee. 'The cases in which such conversion may be authorized seem well enumerated in Mr. Price’s valuable Act of April 18th 1853, Pamph. L. 503. But it has been expressly repudiated and denied in the case of owners sui juris, not consenting nor presumed from acquiescence to have consented. “ There is no adjudicated case,” says Mr. ■ Justice Coulter in Ervine’s Appeal, 4 Harris 264, “ where the legislature ordered the sale of one man’s land when he was sui juris, under no legal disability to act, for the benefit of another person also sui juris, and where such legislative decree was sustained.” In Fullerton v. McArthur, 1 Grant 232, the objection was made by a stranger; twenty years had elapsed without complain^ by any one of the owners; and it was held that .the presumption was conclusive that the act had been passed with their consent. In Kneass’s Appeal, 7 Casey 87, it was expressly held that the legislature had no power to authorize the sale of the property of parties sui-juris, and.seised of a vested estate in the premises, against their consent. “ Where it is judicially, established,” said Chief Justice Lewis, “that the estate of tenants in common cannot be divided without prejudice or spoiling the whole, and where no one of the parties will take the property at the valuation, the power to sell is exercised by the courts, and 'this power is derived from the legislature. But it is justified by the necessities of justice — the parties in interest cannot otherwise enjoy their rights — and a sale in such a case is as valid as a judicial sale for payment of debts.” See also Powers v. Bergen, 2 Selden (N. Y.) 368.

The remaining position to be considered is, that the constitutionality of this act can and ought to be sustained under the general power of the legislature to regulate property and to modify its incidents. But while it is true that this power is unlimited as to all future acquisitions by persons natural or artificial, the cases' and precedents already referred to abundantly show that wherever the operation and effect of any general regulation is to extinguish or destroy that which by the law of the land is the property of any person, so far as it has that effect it is unconstitutional and void. Every power which the legislature possesses is subject to the prohibitions contained in the Declaration of Rights, and one of them, as we have seen, is, that they cannot take the property of a man, except for public use, without his consent. Perhaps no more apposite illustration of this is to be found than in the case of rights and titles acquired under Statutes of Limitations. “ Suppose,” said Mr. Justice Rogers, in McCabe v. Emerson, 6 Harris 112, “ after title acquired to a tract of land by the Act of Limitations, the legislature should extend the time; or suppose a writ of error barred by a lapse of time, would any person contend that the legislature would have a constitutional authority to interfere so as to affect rights thus acquired ? This will scarcely be pretended Ervine’s Appeal, 4 Harris 256; Baggs’s Appeal, 7 Wright 512; Billings v. Hall, 7 Cal. 1; Knox v. Cleveland, 13 Wis. 245.

The Act of March 31st 1812, 5 Sm. L. 395, concerning joint-tenancy, has been referred to as abolishing the incident of survivorship in existing estates, and held by this court, in that respect, to be constitutional in Bambaugh v. Bambaugh, 11 S. & R. 191. But in that case Chief Justice Tilghman said: “ There is no force in the argument that the operation of the-act on existing estates was an invasion of vested rights. Who should be the survivor was in contingency, and in the mean time, either joint tenant might have severed the estate by legal means without the consent of his companion. * * * The act deprived no. man of his property. When a title had already accrued by survivorship it remained untouched.” The Act of April 27th 1855, Pamph. L. 358, converting estates tail into estates in fee, has been referred to,-but that act is prospective and applies only to all estates thereafter created. But even if it had applied to all existing estates tail, which perhaps it might (De Mill v. Lockwood, 3 Blatchford C. C. Rep. 56), of what value is the property of issue in tail or remainder-men which can be barred without their consent by the deed of the tenant in tail ? It would be very different with a remainder after a life estate. In Bumberger v. Clippinger, 5 W. & S. 311, this court refused to compel a purchaser to take a title depending upon an Act of Assembly authorizing a tenant for life to sell in fee and invest the proceeds. To the same effect is Rogers v. Smith, 4 Barr 101. And in Ervine’s Appeal, 4 Harris 256, such an act was directly held to be unconstitutional and to give no title. In Schafer v. Eneu, 4 P. F. Smith 304, an estate was devised in 1851 to a woman for life, remainder to her children. She left no children issue of her body, but children adopted in conformity with the Act of Assembly of May 4th 1855, § 7, Pamph L. 431. “If the act were construed,” said Mr. Justice Strong, “as it is claimed by the plaintiff in error, as applied to the present case, it would work a result which it is not in the power.of the legislature to effect. The will of James Eneu' took effect in 1851. It gave a life estate in the rent to Mrs. Clark, with a contingent remainder to her children, and the residue of his estate to his children, naming them, in fee. The children thus named (and the children of such as are deceased) are the defendants in error. They had a vested interest in the rent when the Act of 1855'was passed. It was not in- the power of the legislature to take away that vested interest and give it to such persons as Mrs. Clark might adopt.” No case could well be framed more directly in point to show that when the effect of any change or modification of the rules of incidents of property is to transfer a vested estate from one person to another, it is so far ineffectual and invalid.

Upon the whole, then, we have come-to the conclusion that the Act of April 15th 1869 is unconstitutional and void. The particular provisions of this act seem just and reasonable; but they are not features which affect the character of the act as contrary to the fundamental law — the lex legum. We are bound to look at the principle upon which it is based, and its logical -and necessary consequences. As it appears to,us, it would overthrow the most valuable barriers which are reared against legislative tyranny, and make all property to be held by a most insecure and uncertain tenure. This act may be but an entering wedge. Its salutary and conservative restrictions may be repealed hereafter without touching its principle, upon which rests the question of its constitutionality, and every man will then hold his ground-rents, — and the same provision may be extended to other kinds of property,— upon the will of a jury in determining for what price he shall be compelled to sell them.

Judgment reversed.

Agnew, J.

This case has been argued as if the ground-rent owner had been deprived of his property by a taking for private use, contrary to the Constitution of the state. In my judgment this is not the character of the law — it is remedial rather than aggressive. The act is entitled an act for the extinction of irredeemable rents, and' recites the irredeemable charge upon the land as an obstruction to the exercise of the rights of ownership over the property, and as contrary to the policy of the Commonwealth, which has been to remove restrictions upon alienation, and to encourage the free transmission of estates. It then provides a remedy, if the parties cannot agree, whereby the ground-rent may be valued and appraised, the price paid to the ground-rent owner, and the rent thus extinguished. It is evident that the ground-rent is not taken, but is only converted, by act and operation of law, to free the land'from the burden imposed upon it. The owner of the ground-rent is not deprived of his property, but for a proper purpose is compelled to take it in another form. The argument against the law, proceeds on the ground that the rent is a separate estate issuing oiit of the land, and affirms that because it is separate, it cannot be changed or converted. But separateness of interest is no bar to a remedy. The estates or interests of joint tenants, tenants in common, tenants for life, and in remainder, and trustees and cestui que trusts, are equally separate, each holding his particular interest to and for himself. It is the fact that both interests belong to a single subject of property, and are so intertwined together that they operate as a hindrance to the several owners to exercise ’their rights freely for their own interests, which makes them the subject of remedy. In the present case the estates are separate, one is corporeal and the other incorporeal it is true, but both inhere in a single subject, and grow from the same stem. The incorporeal follows the. corporeal into every inch of soil, and its existence is so incorporated with the land, and so permeates and surrounds it, that the owner and occupier of the ground is for ever subject to its domination, no matter' what use or purpose he may desire to make of his land. It is not like a division of ownership by lines on the ground, or by horizontal lines, as coal and minerals held separately, where each owner holds independently, and no further partition is needed, but the ground-rent is a charge on every part and parcel, and the owner of the land.for ever stands -beneath the encumbrance. In its own essence what is the ground-rent but a sum of money, annual in the form of a rent, single when capitalized by appraisement ? To the owner it is only money, whether in the form of capital or the interest upon that capital.- In what does a ground-rent differ from an interest-mortgage, which if irredeemable must for ever consume the profits of the land ? Is no time a bar, and can it never be satisfied ? But as to the land owner the case is essentially different — the rent is a burden bound upon the back of the land, a load under which it must stagger for centuries, until willing ¡parties can be found to unstrap the burden. This the law says is contrary to the policy of the state. Is there no remedy for it ? Is it in the power of two men by the exercise of their joint wills, in the form of a deed, so to bind np the lands of the state, in perpetual chains, that even future generations cannot unwind their links ? Must the burthen continue for a thousand years, and if then no one be found willing to unbind it, shall it continue a thousand more ? ' The law is that no one can by will, or deed, or trust, create a perpetuity in lands longer than a life or lives in being and twenty-one years and nine months thereafter. Dead generations are not the lords of the soil, nor can they impose their shackles upon the men or property of future generations. When, therefore, a burden such as this clings to the land, like the Old Man of the Mountain upon the-back of Sinbad, there must be a power in government to shake it off, and let the land go free. It' cannot be that all the lots and lands of a great city shall be bound up for ever in irredeemable rents to the injury of owners, and of qom-< merce, without a remedy.

What, then, is the purpose of*this act.? It does not seek to take the ground-rent from its owner for public or for private use, •but simply to transmute an annual sum of money into its equivalent sum of capital, in order that the impolitic, perpetual union of two .estates, growing from a single stalk,; may be separated for the welfare of the state. Are not the powers of government adequate for this ? In thinking and speaking of the power of eminent domain, we are very apt to be controlled, in our’ thoughts by the commonest mode of its exercise, to wit, the taking of land for public use. But this is not its' only form. Domain here means dominion, and it is eminent because of its high control. This high power or dominion of the state is not ponfined to a single mode of exercise, though seldom seen or thought of in others, but is to be found in all those forms grouped under the name of the police power of the state — a power exercised for the welfare of the people, and rendered necessary by the circumstances which affect the common good. Hence laws for the preservation and promotion of peace, good order, health, wealth, education, and even general convenience, are supported under the police power of the state. Under these laws personal fights, rights of property, and freedom of action may be directly affected, and men may be fined, imprisoned and restrained, and property taken, converted and sold away from its owner. The principle of such laws is most easily ' perceived and recognised when men are held liable for nuisances acts, and negligences affecting the health and safety of society, when the marriage contract is dissolved, and when property is subjected to charges and sales for matters affecting the public interest and welfare. Beyond this is a wide domain of general convenience where the power is also exercised. Thus estates held in joint tenancy and common may be divided among the tenants even by conversion and sale, life estates and remainders may be separated from each, other, qualified inheritances expanded into absolute fees, and contingent and executory interests extinguished. What greater reason has the owner of an irredeemable ground-rent, coming down from a former generation, to complain that his estate is appraised, converted into capital, and paid over to him in order, to unfetter the land, than the owner of a life estate in the land itself, or the owner of a remainder or reversion, or. of some contingent or executory interest ? All alike bow before the power of the parens patrice, exercised for the good of all the children of the state.

The reply that is made that the purpose is to make partition in some of those cases, and to unfetter the estate in others, states no real 'difference and makes no just distinction. In this case it is no more than a mere partition between the owner of the land and the owner of the rent. The union here is really more intimate, and the shackle upon the land more tight, than i.n the case of a widow’s third, a life estate, an estate in common or joint tenancy, or a charge in the title. Yet these interests may be reached by judicial proceedings, and even a sale, conversion -and extinguishment to effect a .separation among the owners. The right of survivorship in joint tenancy existing before the Act of 1812 was held to, be liable i¡o a legal extinguishment: Bombaugh v. Bombaugh, 11 S. & R. 191. Even special acts for the conversion of estates have been held to-be valid: Norris v. Clymer, 2 Barr 277. In that case Chief Justice Gibson said: “ But the constitutionality of the. act stands on much safer ground than a chancery power unseparated from the other powers of the government, and reserved to the legislature. It stands on the notions of parliamentary-power brought by our forefathers from the land of their birth, and handed down to their descendants unimpaired, in the apprehension of any one, by constitutional restriction of ordinary legislation. A list of nine hundred statutes in principle like the present has been laid before us ; some of them enacted at the instance of judges of this court, some at the instance of law judges of the Common Pleas, and some at the instance of learned and eminent lawyers, most of whom executed trusts under them without suspecting that their authority was prohibited by the Constitution. It is not above the mark to say that ten thousand titles depend on legislation 'of this stamp.”

This remedial legislation, as he calls it, he -further remarks, has prevailed from the foundation of the province to this day. After reciting the only provisions in the Bill of Rights against the privation of property, and .taking it for public use without just compensation, he adds, “Now it cannot be said that this statute has deprived any man of his property, or applied it to any use but his own.” This case was reaffirmed in Sergeant v. Kuhn, 2 Barr 398; Kerr v. Kitchen, 5 Harris 434; Morris v. City of Reading, 9 Id. 201-2. It is true that Norris- v. Clymer was slightly impugned by a divided court in Ervine’s Appeal, 4 Harris 256, Bell and Gibson, C. J., dissenting.' There it was held that a special act for a sale and conversion was invalid because the devisees interested in the estate were all sui juris, and able to convey themselves. The same distinction as to. persons sui juris was afterwards taken in Kneass’s Appeal, 7 Casey 87. But it may well be that in ordinary cases, where owners are sui juris, the law will not compel conversion, for in such cases there is no necessity, -or great purpose of public policy, to invoke the high power of dominion or police of the state. But the fact that owners are sui juris does not in' itself prevent partition or severance of interests in a single thing. Hence we have laws for partition, valuation and sale in the Orphans’ Court and Common Pleas, and proceedings'to effectuate the same thing in equity, whether parties be of age or minors, the purpose being not privation of' right but a separation of interests. Then what clause of the' constitution does the act for the extinguishment of ground-rents violate ? It does not deprive the ground-rent owner of his property, or take it for any public or private use. It merely dissolves the relation between him and the owner of the land out of which the rent issues, and gives him a capital sum of money in lieu of an annual sum. Nor do I hold-this can be done in an ordinary case between the parties to the deed, or the survivor and others, or alienees of both in their lifetime or for twenty-one years afterward; but only •when by lapse of time the contract relation between parties long in their graves, becomes a.subject of regulation, for the good of a subsequent generation of men. I know it may be said that the act itself makes no distinction. This is true, but it does not follow that the act is therefore void. A law like a writing between private parties, must haye effect where it can operate. This is a question of power, and to the extent of the power its exercise must be held to be valid. Though a deed fail to express the grantor’s power, and on its face may seem to transgress it, yet if he have a power to convey, it will operate to that extent. So, though this act may not operate on existing parties to a deed or their survivors, or for twenty-one years afterward, if it can then operate we must recognise its validity to the extent of lawful ■legislative power. All men are supposed to know the law, and that its policy forbids perpetuities, and therefore though their deeds may bind themselves and their immediate successors, they cannot bind posterity for all time to come.

I think the law can be impugned'.only on the ground that it impairs the validity of a contract; and to this extent I agree that it is not competent for the legislature to sever the ground-rei.fc ■ from the land'to which it is attached'by its contract relation as between the parties to the contract and tbeir immediate privies, to the extent that it is in the power of men to create a perpetuity, but no farther. Beyond- this, to'carry the sanctity of a contract is to make the act- of - two individuals rise higher than the powers of government and the interests of the state, and to dominate both the power of the legislature and the rights of the people. It cannot be that the contracts of a past generation are beyond the reach of law for a proper purpose, a purpose not to destroy, but to change, to suit the interests of the state. Otherwise a contract would stand on a higher platform than that of the people to change their form of government. ■ A change of the state constitution would effect nothing, for the contract standing on the higher ground of the Federal constitution would still claim its protection, -and-thus descending on unborn generations, would cling like the fatal shirt of Nessus, until escheat or an earthquake should end it. . I think,.therefore, that the legislature can sever the rent from the land by a fair valuation and payment in money in the case of' a ground-rent deed all of whose parties are dead and more than twenty-one years have elapsed since the death of'the last survivor.. But as these facts do not appear in this bill and answer the judgment should be reversed.