author: Agnew, J. Agnew, J.

text:
    Craig & Blanchard versus Kline et al. Kline et al. versus Craig & Blanchard.
    1. Amongst the powers of the states not surrendered to the General Government are the police powers exercised by passing laws to promote the peace, safety, good order, health and interests of a state.
    2. A state may use the means to effectuate an acknowledged power in itself which Congress may apply for .another purpose.
    3. Congress may make that a regulation of commerce, which a state may employ as a guard for its internal policy or to preserve the public health or peace or to promote its peculiar interests.
    4. When a state exercises her sovereign power in a matter involving the interests of her citizens, though it may touch upon a subject within the power to regulate commerce, it is not invalid unless it conflicts with a law of Congress on the same subject.
    5. The Constitution of the United States confers no power of eminent domain or of legislation over state territory, except that relating to the seat of government and places purchased with the consent of the state for forts, &e.
    6. Navigable streams within the states are subject to the regulating and police power of the- state for the protection of the people and of internal commerce, when not in conflict with an Act of Congress to regulate commerce.
    7. The Act of December 11th 1866, regulating the floating of logs, &c., on the Susquehanna, was a lawful_ .exercise of the police power of the state and is constitutional.
    8. A contract between Maryland and Pennsylvania to preserve the free and public navigation of the Susquehanna is not infringed by proper regulations to promote the navigation by making it safe and convenient to all and preventing it from being monopolized.
    9. The Act of 1866 forbad the floating of saw-logs in the Susquehanna, below Northumberland, without being rafted or enclosed in boats and under the control of men actually on them; and provided that they might be taken up by any one when found “ so floating,” and unless redeemed in two months by payment of fifty cents for each log they should become the property of the captor. Held, that the owner’s title to logs thus taken up could not be divested without notice, and an opportunity of showing that the logs had not been voluntarily set afloat loose.
    10. “ The law of the land” in the bill of rights means due process of law, not an act of the legislature.
    11. All claims for justice are to be tried and enforced by the judicial authority of the state and by due course of law.

      12. Under the Act of 1866, the mere fact of logs being found floating is not a ground of forfeiture; it is the voluntary act of floating which is prohibited.
    13. The mere act of floating may justify seizure to answer the supposed offence.
    14. Logs voluntarily floated and stranded may be taken up under the Act of 18G6.
    15. The Act of March 20th 1812, directing that the captor of logs shall lodge a list within thirty days with the nearest justice, which shall be published for three weeks, and if the owner shall not take the logs away within three months afterwards they shall be forfeited, is not repealed.
    16. The Acts of March 20th 1812, April 20th 1853, May 8th 1855, April 10th 1862, and December 11th 1866, are in pari materia.

    17. Replevin lies whenever one claims goods in the possession of another without regard to the manner in which they were obtained.
    18. On the question of damages in replevin, the means by which the goods have been taken or retained will be considered.
    19. Exemplary damages in replevin may be given when there has been outrage in taking or vexation or oppression in the detention.
    20. If the taking or detention be under an innocent mistake, the measure of damages may be mere compensation.
    21. Primá facie, the value of the property when and where it is replevied, is the measure of compensation; but this may be varied by the character of the taking and removal to the place of replevy.
    22. Herdic v. Young, 5 P. F. Smith, recognised.
    March 10th 1870.
    Before Thompson, C. J., Read, Asnew and Sharswood, JJ.
    Writs of error to the Court of Common Pleas of Perry county: No. 59, 61 and 62, of May Term 1870.
    An action of replevin No. 18 to August Term 1869, was brought April 28th 1869, by John Craig and John Blanchard, trading a.s Craig & Blanchard, against Jacob L. Kline and others, for 2500 saw-logs marked on the end as specified in the writ, of the value of $8750, and 10,000 feet of boards, &c., of the value of $150, manufactured from logs of the plaintiffs with like marks. The plaintiffs pleaded “non cepit” and “property.”
    There was another action of replevin between the same parties, No. 88 to same term, brought July 6th 1869, for other lumber claimed by the plaintiffs. The pleas were the same,and both cases were tried together under the same evidence.
    At the trial, January 6th 1870, before Graham, P. J., the parties agreed to the following facts:—
    “ That plaintiffs, in the spring of 1868, were the owners of the logs described in the return to the said writs of replevin; and that plaintiffs then being owners as aforesaid, voluntarily put saw-logs into the West Branch of the Susquehanna river, and voluntarily permitted the same to be floated into the main river Susquehanna, at Northumberland, and down the same, without the said logs being rafted and joined together, or enclosed in boats, and under the control, supervision and pilotage of men, specially placed in charge of same, and actually thereon: for the purpose of floating them thus loosely to their mills, below the line of the state of Maryland; and that the defendants were in the possession of said logs at the time said writs were issued.”
    The plaintiffs then gave evidence of the value of the logs. It appeared also from the examination of their witnesses, that when the logs were first seen by their agent, they were on the islands of the defendants, on their cultivated fields, and that the defendants claimed to have taken them under the Act of December 11th 1866. The logs had been floated from Clearfield county, in April 1868 — they were accompanied by a crew of eight horses and forty or fifty men, for the purpose of driving them down the river and keeping them floating contiguous to each other in the current of the stream; a great many logs were floated at this time, the river got too high and they could not be kept off the islands; logs could not be controlled when the river is high. The defendants said plaintiffs could have the logs on paying fifty cents each, which the agent declined and refused to pay anything to the captors but damages. _
    The defendants gave evidence, that in April 1868, a body of from 200,000 to 250,000 logs collected at “Divitt’s” on the Susquehanna, came down the river, they captured about 370 in number, there was no one with them, nor were they rafted together; about 300 were on two islands of the defendants; the largest portion of the logs were taken whilst floating and the remainder were taken when lodged on the islands: the islands are in Perry county, below the town of Northumberland. —
    The defendants gave evidence, that rafts could not safely be navigated with a large amount of logs floating; that the rafts could not land nor get through shoots or narrow channels; an ordinary raft could not live in the drive of 1868; the witnesses testified to immense damage by the drive of logs in 1868 and described it; they stated also that if men had been on the logs they would have passed down without doing injury.
    The defendants claimed to retain the logs under the following act, approved December 11th 1866, Pamph. L. 1867, p. 1366, Purd. 1468:—
    Sect. 1. That it is hereby declared to he the true intent and meaning of the 1st section of the act entitled, “ An act to regulate the taking up of lumber in .the rivers Susquehanna and Lehigh and their branches, approved the 20th day of March, a. d. 1812;” that any saw-logs may be taken up under the provision of said section, whether the same be put into the said streams intentionally or otherwise, and whether the same be floated intentionally or otherwise, the true intent and meaning thereof being that no saw-logs may be floated or driven therein, unless rafted and under the pilotage and control of men, and that all saw-logs not so rafted and under the pilotage and control of men shall and may be taken up under the provisions thereof: Provided, that this section shall only apply to the Susquehanna river, between the town of Northumberland and the line of the state of Maryland; and the person or persons taking up any of said saw-logs so floating shall be entitled to receive from the owners thereof fifty cents for each log before delivering up the same.
    Sect. 2. It shall not be lawful for any person or persons, company or companies, corporation or corporations, to float or direct and authorize to be floated down the Susquehanna river, between the town of Northumberland and the line of the state of Maryland, any saw-logs, without the same being rafted and joined together or enclosed in boats, and under the control, supervision and pilotage of men, especially placed in charge of the same and actually thereon. And any person or persons may take up the said saw-logs, or any of them, if they be found floating loose in said streams, and not under the personal charge of some one upon the same, and shall have the right to hold and possess the same against all persons whatsoever: Provided, that if the owner or owners of said logs or their agents shall appear and demand the same from the captor or captors, and shall and do pay therefor to the said captor or captors fifty cents for each and every saw-log so taken up within two months from the date of their being so taken up, it shall be the duty of the captor or captors to deliver over said logs to the owner or owners; but if no such owner or his or their agents .shall appear within said time, and pay or offer to pay to the said captor or captors the said salvage-money, the said saw-logs shall be absolutely forfeited to and become the property of the said captor or captors. And provided further, that this act shall not apply to saw-logs now lying in the said stream, nor to any case in which by reason of £igh water, or from any other casualty, said saw-logs may be swept out of the West Branch and Susquehanna booms.
    Sect. 3. All laws and parts of laws inconsistent with the provisions of this act shall be and the same are hereby repealed.
    The Act of 20th of March 1812, 5 Smith 835, Purd. 613, pl. 9, &c., enacts: “ If any logs, shingles, boards or lumber of any kind which may have been, or may be put into the river Susquehanna or either of its branches, or into the river Lehigh, and which may be taken up by any person or persons, floating down the waters of either said streams, it shall be the duty of the persons so taking up such lumber to lodge a list by him subscribed, within thirty days thereafter, with the nearest justice of the peace of the town or township where such lumber was taken up, of the number, quality and quantity of the logs, boards or other lumber, with the marks on the same.” The act further provides that the justice shall enter the description of the lumber on his docket, and publish the same for three weeks, and if the owner of such lumber or his agent shall not take the lumber away within three months after such publication, all such lumber shall become forfeit to the person taking up the same. The 2d section gives to the captor six cents per log if the owner of the logs take them away within three months after they are advertised. The 3d section imposes a penalty on persons taking up logs or lumber and not complying with the provisions of the act.
    The following is the.section of an act passed on the 20th of April 1855, Pamph. L. 646, Purd. 673, pl. 12: “It shall be lawful for any person owning or occupying an island in the Susquehanna river to advertise any lumber lodging on his or her land in the same manner, and under the same terms as is directed in the Act of the 20th of March 1812, entitled ‘ An Act to regulate the taking up of lumber in the rivers Susquehanna and Lehigh and their branches,’ to which this is a supplement.”
    A supplement to the Act of March 20th 1812 was passed May 8th 1853, Pamph. L. 529, Purd. 673, 674, pl. 13, &c., viz.:—
    Sect. 1. Any person or persons who shall take up any boards or lumber of any kind, logs, timber, shingles or shingle-bolts, found floating in the river Susquehanna or either of its branches, shall, in lieu of the compensation now by law allowed, be entitled to a reasonable compensation for all necessary services and expenses in taking up and securing the same, and for advertising it in the manner now by law prescribed.
    Sect. 4. That every justice, with whom a list of any such lumber, &c., shall be lodged, shall keep a record of his proceedings in the case; and he and the constable shall be entitled to the same fees as are now by law provided for similar services.
    Sect. 5. That the provisions of this act shall apply to any lumber, logs, shingles, shingle-bolts or timber, which may lodge upon any islands in the Susquehanna river,' or its branches, and be advertised according to existing laws, by the owner of such island.
    Sect. 6. That all laws, or parts of laws, inconsistent with this act, are hereby repealed; Provided, that the provisions of this act shall not apply to logs, timber, shingles or shingle-bolts, or other property taken up by any incorporated boom company in the Commonwealth.
    On the 10th of April 1862, an act was passed enacting that persons engaged in lumbering on the West Branch of the Susquehanna or any of its tributaries should adopt a mark, and stamp with it their lumber to be put into the stream to be driven to any boom at or above Williamsport, and file the mark with the prothonotary of Lycoming county; that no person should stop lumber so marked above Williamsport; that if any lumber floats upon any land above the Williamsport boom, the owner may enter upon the land and take it, first paying the damage, &c., and if it be not claimed within three months, it shall he forfeited to the owner of the land, he first to advertise, &c.,
    By this Act, the Acts of 1812, 1858 and 1855 were repealed, “ so far as relates to any of the several kinds of lumber mentioned in the first section of this act, having thereon a duly registered mark as aforesaid, in and along the streams andjlheir tributaries mentioned in the first section of this act.”
    On the 7th December 1799, the legislature of the state of Maryland passed an act to incorporate a company for the purpose of making a canal between the river Delaware and the Chesapeake Bay. The 18th section of that act provides, “ That this law shall be of no force or effect until a law be passed by the state of Delaware authorizing the cutting of the canal aforesaid; and until a law shall be passed by the state of Pennsylvania, declaring the Susquehanna river a public highway, and authorizing individuals and bodies corporate to remove obstructions therein, at a period not exceeding three years from the 1st of March 1800.” By another Act of the Legislature of Maryland, of 16th December 1812, it is enacted, “ That if the United States subscribe 750 shares of stock, Pennsylvania 350,. and Delaware 100, then the Treasury of the western shore of Maryland was to subscribe 250 shares.” On the 19th February 1801, the legislature of Pennsylvania passed an act, declaring that the river Susquehanna, down to the Maryland line, shall be a public highway, any act or law of the Commonwealth notwithstanding. And it shall and may be lawful for the Chesapeake and Delaware Canal Company, or any other body corporate, or individuals, to remove all natural and artificial obstructions therefrom. (3 Smith’s Laws 464). In 1825, the assent of Congress was given to these acts, and the Secretary was authorized to subscribe money to finish the canal.
    The plaintiffs submitted these points:—
    1. The defendants cannot hold the logs in dispute by virtue of the provisions of the Act of 11th December 1866, because the act is unconstitutional and void.
    2. The defendants, having failed to comply with the directions and requisites of the Act of 1812 and its supplements, cannot hold the logs by virtue of having taken them up upon the river.
    3. The defendants cannot detain the logs for the purpose of securing and indemnifying themselves for any alleged damages incurred by reason of the logs having lodged upon their islands or otherwise.
    4. If the court shall answer to the 2d proposition above stated, that the 2d section of the Act of 1866 is independent of the Act of 1812, and that the defendants are not bound to show a compliance with the direction of the Act of 1812, or so in substance, then the court is requested to charge the jury that only logs “ that are found floating loose in said stream” may be taken up, and that the statute does not include such logs as lodged upon the islands, and were taken from there by defendants.
    5. The proper measure of damages is the value of the logs and lumber, at the place where they were when the writs were served, and not their value at the time and place when and where they were taken into possession by defendants.
    ■The court answered:—
    “1. We cannot answer this point as requested. The act referred to is constitutional, and under it, defendants may hold the logs captured afloat on the river, but not those lodged on the islands.

      “2. Answered in the negative.
    “ 3. Answered in the affirmative.
    “ 4. The Act of 1866 only applies to logs found floating loose in the stream, and not to those lodged upon the islands. The plaintiffs may, therefore, recover the value of the logs lodged upon the island and taken by the defendants.
    “ 5. Under the circumstances of this case, we cannot answer this point as requested. The logs were upon the cultivated islands of defendants. They took them, doubtless, under an honest belief that they were legally entitled to them, and, under these circumstances, we think that the proper measure of damages would be the value of the logs, as they were lying upon the island, with interest on their value from the time plaintiffs converted them to their own use.”
    The defendants’ points were:—
    1. The Act of 19th February 1801, * * * so far as it attempts to alienate either to a state or company the jurisdiction of the said state of Pennsylvania so as to prevent said last-mentioned state from enacting and executing laws which merely police the stream, and regulate its navigation for the common benefit of all persons interested, either in- the navigation of the stream itself or for the protection of the owners of real estate in and along said stream, is unconstitutional and void.

      2. The Act of 11th December 1866, section 2, does not prohibit the navigation of the river Susquehanna, but simply regulates the navigationthereof- for the common benefit of all those desiring to use the stream for traffic, &c., and also protects the owners of property in and along said stream; and, while it imposes a reasonable restriction, for the common good, that all persons may the more fully enjoy their rights, under a wholesome police regulation, there is no denial of the right of navigation to any. That the loss of property to those who refuse to obey the act, as to the manner of floating logs, is not in violation of either the Federal or State Constitutions, because the proviso gives such violator of the law two months from time of capture, within which he may claim and pay fifty cents per log, whereupon the captor must surrender up the property to the owner, and he is reinvested with the title thereto, the act operating as a limitation upon his rights, and not as a forfeiture of his property without trial by due course of law, and operates not upon the rights, but upon the remedy, and the title acquired by the captor is founded simply on a limitation of the adverse remedies, and is constitutional, and within the power of the legislature to enact.
    3. If the jury believe that the plaintiffs voluntarily caused the logs in dispute to be floated down the river Susquehanna between the town of Northumberland and the line of the state of Maryland, without the same being rafted and joined together or enclosed in boats, and without being under the control, supervision and pilotage of men especially placed in charge of the same, and actually thereon, and the logs lodged on islands in said river, or on other lands of defendants, or on islands or other lands of those from whom defendants purchased a portion of these logs, or were captured afloat by defendants, and that plaintiffs, neither by themselves nor their agents, appeared within two months after these logs were seized by defendants, or those under whom defendants claim, and from whom they purchased the logs, and claimed these logs and paid, or offered to pay, fifty cents per log, then the plaintiffs are barred from recovery in this action, and the verdict must be for the defendants. '
    4. It being admitted by plaintiffs that they voluntarily threw the logs in dispute into the main river Susquehanna, at Northumberland, without joining the logs together in rafts, and without" persons in charge of the same and actually thereon, with the intent and design of floating or driving said logs loosely to their sawmills below the line of the state of Maryland, this was in violation of the 2d section of the Act of 11th December 1866, and against law, and said logs having landed or lodged on the islands of the defendants, the plaintiff could not enter upon said islands to remove the logs, except as trespassers, and the logs having afterwards been removed by defendants to their mill-pond, the plaintiffs cannot recover them in this action, and the verdict of the jury must be for the defendants.
    The court answered:—
    “ 1. We do not consider the act referred to punconstitutional, nor do we consider it interferes with the right of Pennsylvania to regulate navigation of the Susquehanna river, so far as it may be to the interest and benefit of the public and those using the stream for the transportation of their goods and commodities.

      “ 2. Answered in the affirmative.
    “3. We say to you, that so far as the logs in controversy were captured by defendants when floating upon the river, there can be no recovery. As to the logs taken from the islands, the plaintiffs are entitled to recover their value, as before stated.
    “4. We decline answering this point as requested.”
    The court further said:—
    “ * * * Under the admitted facts and undisputed evidence in the case, the defendants acquired title to the logs captured by them when floating loose in the river — if the Act of 11th December 1866 is constitutional. * * *
    “ The logs taken up by the defendants, floating loose in the river, not being demanded within two months from the date they were taken up, they were forfeited to, and became the property of, the captors, and the plaintiffs cannot recover their value.”
    In No. 18 the verdict was for the plaintiffs for $684.82; in No. 88 the verdict was for thq^plaintiffs for $394.16.
    The plaintiffs took out a writ of error in No. 18.
    The defendants took a writ of error in each case.
    All the writs of errors we£e argued together in the Supreme Court.
    The plaintiffs in the suit assigned for error the answers of the court to their 1st, 2d and 5th points, and to the defendants’ 2d and 3d points and to the portions of the charge given above.

      A. C. Simpson and S. Linn (with whom were C. J. T. McIntire, Black and Meredith), for plaintiffs in error.

      S. G. Thompson and B. F. Junkin, for defendants in error.
   The opinion of the’court was delivered, July 7th 1870, by

Agnew, J.

It is a difficult problem now to define the boundaries of state and Federal powers. The doctrine of the rights of states pushed to excess culminated in ciyil war. The rebound caused by the success of the Federal arms threatens a consolidation equally serious. In this condition the landmarks of the Constitution, as planted by Chief Justice Marshall and his associates on the solid ground of reason, and a due regard to the rights of the states and of the Union, constitute the only safe guides of decisions The power of Pennsylvania to legislate upon the navigation of the river Susquehanna, which is the question in this case, involves a Federal power exceedingly intimate in its relations to the subjects of state sovereignty. The power to “regulate commerce with foreign nations and among the several states, and with the Indian tribes,” “ cannot stop (says Marshall, C. J.) at the external boundary line of each state, but may be introduced into the interior.” It comprehends “ navigation within the limits of every state of the Union, so far as that navigation may be in any manner connected with commerce,” either foreign or interstate, and “ may therefore pass the jurisdictional lines of the states, and act upon the very waters” to which state legislation applies : Gibbons v. Ogden, 9 Wheat. 1. But while thus asserting the great extent of the Federal power, the opinion concedes to the state an “ immense mass of legislation which embraces everything within the territory of a state not surrendered to the General Government, all which can be most advantageously exercised by the states themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws regulating the internal commerce of a state, and those which respect turnpike roads, ferries, &c., are component parts of this mass.” These and others not enumerated constitute police powers — such as are exercised in the passage of laws to promote the peace, safety, good order, health and interests of the state, and are protected by the 9th and 10th articles of the amendments to the Constitution of the United States. The powers reserved to the states (says the 45th number of The Federalist) will extend to all the objects which in the ordinary course of affairs concern the lives, liberties and property of the people, and the internal order, improvement and prosperity of the state. Or, as said by McLean, J., “ all powers which properly appertain to sovereignty, which have not been delegated to the Federal Government, belong to the states and the people:” New Orleans v. United States, 10 Peters 737; and see Willson v. Blackbird Creek Marsh Co., 2 Peters 245; License Cases, 5 How. 582-3, 592.

But though this large field of state power is conceded, a difficulty arises sometimes in relation to its subjects when they become the objects of the exercise of the Federal power also. Thus says Mr. Story, in his work on the Constitution: “A state may use the same means to effectuate an acknowledged power in itself which Congress may apply for another purpose. Congress may make that a regulation of commerce which a state may employ as a guard for its internal policy, or to preserve the public health or peace, or to promote its peculiar interests.” An illustration will be found in the case of Willson v. Blackbird Creek Marsh Co., 2 Pet. 245, in which the authority of a law of Delaware was questioned. The plea stated the creek to be a navigable highway, in which tide ebbed and flowed, and the argument insisted that the law of the state conflicted with the power to regulate commerce. Bui; its validity was sustained on the ground that the erection of the dam was necessary for the benefit of the citizens of Delaware, and not opposed to any law of Congress, none having been passed to regulate such streams; and in the expressive language of Chiéf Justice Marshall, it was not repugnant to the power to regulate commerce in its dormant state, This distinction, in regard to the exercise of the power by Congress, is important as coming from the .distinguished author of the opinion in Gibbons v. Ogden, sometimes quoted to carry the power of Congress further than it was intended by him to advance it — ■ to the extent indeed of holding that a state cannot exercise its power over a subject within the power to regulate commerce, whether Congress has legislated on the same subject or not. This opinion is not sustained by the case cited from 2 Peters, or later authorities, and is strongly combated by Chief Justice Taney in the License Cases, 5 How. 578 et seq., who refers to' that case and others to show that it was not the opinion of Chief Justice Marshall that the mere grant of a power to the General Government is to be construed as an absolute prohibition to the exercise of any state power over the subject of it. The question may be considered as now settled in conformity to the opinion of Chief Justice Taney, by the case of Cooley v. The Board of Wardens of Philadelphia, 12 How. 318, which holds the grant of the power to regulate commerce is not exclusive, but that the question in each case depends on the character of the subject, some requiring it to be treated as exclusive and others not so: Opinion of Curtis, J.

But without standing on what some may regard as debateable ground, it seems to be clear that when a state exercises her own sovereign power in a matter involving the interests of her citizens, though it may touch upon a subject within the field of the power to regulate commerce, it is not for that reason invalid if it conflicts with no law Congress has passed upon the same subject. Thus pilot laws, though regarded as directly affecting a subject of commerce, have been held to be valid: Cooley v. Board of Wardens, 12 How. 299; Pacific Steamship Co. v. Joliffe, 2 Wall. U. S. 450. So a law of Maryland forfeiting vessels engaged in catching oysters in an unlawful manner in the Chesapeake Bay is not invalid, though the vessel was duly enrolled and licensed under the Acts of Congress, and employed in the coasting trade. A law of New York, requiring the masters of vessels coming into port from abroad to make report within twenty-four hours of the names, places of birth, of last legal settlement, age and occupation of the passengers, was decided to be good as an exercise of the police power: City of New York v. Miln, 11 Pet. 102. In the License Cases, 5 How. 504, the laws of Massachusetts, Rhode Island and New Hampshire were held not to be repugnant to the Constitution of the United States. A tax in Louisiana on brokers of foreign bills was held not to be repugnant: Nathan v. Louisiana, 8 How. 73. See also Weaver v. Fegely, 5 Casey 27—weights and measures; White v. Commonwealth, 4 Binn. 418; Fox v. Ohio, 5 How. 410—counterfeiting United States coin. Analogies also will be found in reference to the power over the militia: Houston v. Moore, 5 Wheat. 1. The power to establish uniform bankrupt, laws: Sturgis v. Crowningshield, 4 Wheat. 196. To enact naturalization laws: Chirac v. Chirac, 2 Id. 269.

We come now to the particular question involved in this case, to wit: the power .of'our legislature to prohibit the floating of loose saw-logs in the Susquehanna river, between the town of Northumberland and the Maryland state line, “ without the same being rafted and joined together or enclosed in boats, and under the control, supervision and pilotage of men especially placed in charge of the same, and actually thereon.” Act December 11th 1866, § 2, Pamph. L. 1867, App. 1366. This act evidently concerns not only the police power, but the right of eminent domain of the state. It was said by Taney, C. J., in Martin v. Waddell, 16 Peters 410, that — “ when the Revolution took place the people of each state became themselves sovereign, and in that character hold the absolute right to all their navigable waters and the soils under them for their common use, subject only to the rights since surrendered by the Constitution to the General Government.” This language was repeated by McKinley, J., in Pollard v. Hagan, 3 Howard 229. The Constitution of the United States confers no power of eminent domain or of legislation over state territory, except that contained in the 16th clause, 8th sect., 1st art., relating to the seat of government and places purchased with the consent of the state for forts, magazines, &c. Hence it was said by the court in the case last cited, that, even if Georgia had in her compact of cession to the United States of the territory of Alabama granted the municipal right of sovereignty and eminent domain, “such stipulation would have been void and inoperative, because the United States have no constitutional capacity to exercise municipal jurisdiction, sovereignty, or eminent domain within the limits of a state or elsewhere, except in the cases in which it is expressly granted.” Hence it was held in that case that the shores of navigable waters and the soils under them were not granted by the Constitution of the United States, but were reserved to the states respectively, and that Alabama, though a new state, had after admission the same rights, sovereignty, and jurisdiction over the subject as the original states. This was reaffirmed in Gilman v. Philadelphia, 3 Wallace 713. The practice of the states in their exercise of the power of eminent domain, and their right to improve the navigable streams within their boundaries, has conformed to these principles. Each has assumed at pleasure to dam, slack-water, improve the natural channels and bridge these streams, when the interests of the people have made it necessary, in the absence of any Act of Congress to abridge its power. These streams and their navigation have always been deemed to be subject to the regulating or police power of the state for the protection of the people and of internal commerce, when not in conflict with any Act of Congress passed under the power to regulate commerce. Pennsylvania has exercised these rights in the improvement of the navigation of the Delaware, the Susquehanna and the Mononhela rivers; as well as the Schuylkill, Lehigh, &c. The character of these public rights will be found to be discussed in Carson v. Blazer, 2 Binn. 475; Shrunk v. Schuylkill Nav. Co., 14 S. & R. 71; Susq. Canal Co. v. Wright, 9 W. & S. 9; Mon. Nav. Co. v. Coons, 6 Id. 101. These state decisions underwent review in Rundle v. Del. and Raritan Canal Co., 14 Howard 80, in which the power of Pennsylvania and New Jersey as joint sovereigns over the Delaware was sustained, and it was held that a license to an individual over its waters was revocable and held in subjection to the superior right of the state to divert the water for public improvements. The state authority is strongly sustained in the power to bridge these large streams: Penna. v. Wheeling Bridge Co., 18 Howard 480; Gilman v. Philad, 3 Wallace 713; Passaic Bridge, 3 Wallace 782; Flanagan v. Philada., 6 Wright 231. In the first case, of the Wheeling Bridge, 13 Howard 519, the illegality of the structure was placed on the ground that Congress had already legislated on the subject, by sanctioning the compact between Virginia and Kentucky, making the navigation free and common to all citizens of the United States. In the second case, in 18th Howard, supra, it was said the principle is undoubted that the Act of Virginia conferred authority to erect and maintain the bridge, subject to the exercise of the power of Congress to regulate the navigation of the river. The more recent case of Gilman v. Philada., supra, reasserts distinctly the principles stated in Pollard v. Hagan and Willson v. Blackbird Creek Marsh Co., supra. On the subject of ferries, Conway v. Taylor, 1 Black 603, settles conclusively the power of the state to grant this franchise on navigable streams. From these principles and authorities it appears to be clear that the Act of 11th December 1866 was a lawful exercise of the police power of the state upon a subject within her rightful jurisdiction, forthe protection of the navigation of the Susquehanna; and not being repugnant to any law of Congress passed to regulate commferce on this river, it is valid and constitutional.

The court below having sustained the position of the plaintiffs, that the legislation of Maryland and Pennsylvania created a contract between these states, that the Susquehanna is a public highway to the Maryland line, and that any corporation or individuals should have authority t.o remove all natural and artificial obstructions therefrom; we pass to the next -question.. The plaintiffs assert that the modern mode of driving by floating logs loosely in the stream, and following after them to dislodge those that are stranded, has become a recognised mode of navigation, and therefore thaY the Act of 1866 infringes the contract between the states. This is not strictly correct. Driving, as it is called, is chiefly confined to the West Branch of the Susquehanna, where booms have been provided by law for catching the logs and delivering them to their owners. The very driving referred to is itself regulated by law, and is therefore no disproof of the power of the state to regulate the navigation. But a contract to preserve the free and public navigation of the river is not infringed by proper regulations which promote the very purpose of the navigation by making it safe and convenient to all, and preventing it from being monopolized and dominated by a few. According to the evidence this mode of using the river is productive of great injury both to the riparian owners and those navigating the river with arks,- rafts, boats, &c. In this case 200,000 logs were collected at a point on the river called Davits, to be floated down to the mills of the plaintiffs below the Maryland line, and after being set afloat were overtaken by a freshet. The effect is thus described by the learned judge in his charge: Witnesses,” he says, “ describe the consequences of this drive of logs, overtaken by the flood, as ruinous to the defendants and others owning property along the river. The cultivated islands of the defendants and others were covered with logs, the trees which protected the banks uprooted or broken. The logs carried over and upon them, formed dams at the head of the island, causing channels to be cut through the grain-fields, of fifty feet in width, the length of the island, and logs carried out upon the meadows and low lands adjoining the river, to the distance of a fourth of a mile from the usual channel. In addition to the injury to private property as described by the witnesses, some (who have been pilots on the river for fifteen or twenty years, and experienced in running rafts) say they would not consider it safe to undertake to run a raft with a drive of 200,000 logs floating loose upon the river. Some describe the imminent danger to which they have been exposed. That they can neither land at night, go through the chutes in the dams, nor along the narrow, channels. when logs are floating thick in the river. Witnesses who saw the drive of 1868 say that an ordinary raft could not have lived among the logs; and that they have known rafts detained till in the fall season in consequence of loose logs floating so that they could not safely venture out into the river.”

Clearly such a use of the river is improper, and conflicts with the rights of others: Dubois v. Glaub, 2 P. F. Smith 238. We think the state, in the exercise of her sovereign authority and police power, had a right to forbid such a mode of using the stream.

The next question is, whether the mode of forfeiture provided in the law is valid. The 2d section of the Act o.f 1866 forfeits the title of the owner, if the logs be found floating loose in the stream and not in the personal charge of some one upon them, and vests it in the captor, at the expiration of two months, if the owner do not appear within that time and pay the captor 50 cents for every log taken up.

If this means that a forfeiture can take place without notice, as the court below held, and without an opportunity of being heard on the question whether the owner had voluntarily set his logs afloat loose upon the stream, then it seems to us to be contrary to the provision in the bill of rights, that no one shall be deprived of his property unless by the judgment of his peers, or the law of the land. The law of the land means by due process of law: 2 Kent’s Com. 13*; Sedgwick on Stat. and Const. Law, ed. 1857, 610; Murray’s Lessees. Hoboken Land Company, 18 Howard 276. It does not mean merely an act of the legislature, for that would abrogate all restriction on legislative power: 2 Kent 13* in note. The design of the Convention (says Gibson, C. J.) was to exclude arbitrary power from every branch of the government; and there would be no exclusion of it, if such rescripts or decrees were allowed to take effect in the form of a statute: Norman v. Heist, 5 W. & S. 173. This provision and those as to the administration of justice in the bill of rights, require that all claims for justice between man and man, shall be tried, decided and enforced by the judicial authority of the state and by due course of law; Per Lowrie, J., Menges v. Dentler, 9 Casey 495; in Greene v. James, 2 Curtis 189, cited in Sedgwick on Stat. and Const. Law, p. 611, Justice Curtis, in the Circuit Court of the United States, held that an Act of Rhode Island authorizing a seizure of property in an unlicensed tippling shop was in violation of the Constitution of the state, because it did not provide for notice by due legal means of the nature and cause of the accusation, nor for a trial of the question whether the liquors were held for sale in violation of law. The provision in the Constitution of Rhode Island is in the same language as that in our own. This subject was discussed in Fetter v. Wilt, 10 Wright 460, in reference to the Act of 22d April 1822, to prevent the disturbance of meetings held for religious worship; though the point in the case was not decided, Thompson and Woodward, JJ., holding the law to be unconstitutional. Now it is very clear that the mere fact that a man’s property is found floating down the stream, is not ipso facto a ground of forfeiture, so as to deprive him of title. It is the intentional or voluntary act of floating; directing or authorizing to be floated, which the law prohibits. For aught the captor or the public may know the logs might have been carried off by a flood, or by the illegal acts of trespassers. In Doctor and Student, eh. 51, it is said, though a man waive the possession of his goods and saith he forsaketh them, yet by the law of the realm, the property remaineth still in him, and he may seize them after, when he will.” And see Story on Bailments 55, 59, 85, 86, 87. It is evident therefore that title cannot be divested by the mere fact of the property being found floating on the stream. That may justify seizure to answer the supposed offence. But to forfeit the title, the owner must have notice, and an opportunity of showing that his property was not voluntarily set afloat on the stream contrary to law. The court below erred therefore in holding that the title to the logs found afloat was divested without notice. And we think also that there was error in holding that the provision for notice in the Act of 1812 is repealed. Evidently it is not repealed by the Act of 10th April 1862, § 7, P. L. 286, as the repealing clause applies only to the stamped lumber mentioned in the first section put into the Susquehanna at or above the boom at Williamsport. Nor is it repealed' by the third section of the Act of 11th December 1866, repealing all laws and parts of laws inconsistent with the provisions of that act. There is not a word in the act inconsistent with that part of the Act of 1812, § 1, which requires the “person taking up such lumber floating down the waters of the said river to lodge a list by him subscribed, within, thirty days thereafter with the nearest justice of the peace of the town or township where such lumber was taken up, of the number, quality and quantity of logs, &c., with the marks of the same,” and requiring the justice to enter the same on his docket, and to cause the same to be published at least three weeks in one weekly newspaper of the county wherein such lumber was taken up.” Then the first section of the Act of 1866 declares it to be the true intent and meaning of the first section of the Act of 1812: “ That any saw-logs may be taken up under the provisions of said section, whether the same be put into the streams intentionally or otherwise, and whether the same be floated intentionally or otherwise : the true intent and meaning thereof being that no saw-logs may be floated or driven therein [unless rafted and under the pilotage and control of men, and that all saw-logs not so rafted and under the pilotage and control of men, shall and may be taken up under the provisions thereof.”

Thus the Act of 1866 expressly directs that logs floated loosely in the stream not under the control of men (and which the 2d section proceeds to.prohibit, and declare a consequent forfeiture of the logs), shall be taken up under the provisions of the 1st section of the Act of 1812. And without this plain language the identity of the subject of legislation and the necessity of notice to make the law valid, require us to hold that the Act of 1812 and its supplements are to be construed in pari materia with the Act of 1866.

The only objection that can be urged against the charge as to the measure of damages is, that the court assumed that the logs were captured by the defendants under an honest belief that they were forfeited — a matter rather for the jury. The action of replevin lies wherever one man claims goods in the possession of another without regard to the manner in which possession was obtained. But it is equally well settled that upon the question of damages the means by -which possession has been taken or retained will be considered. Hence exemplary damages may be given when there has been outrage in the taking or vexation and oppression in the detention, and on the other hand, an innocent mistake in the taking or detention may reduce the damages to mere compensation. This subject was fully examined in Herdic v. Young, 5 P. F. Smith 176. The court below held that the logs grounded on the islands were not liable to capture and forfeiture under the 2d section of the Act of 1866. Still it was a question for the jury, whether the defendants had not made an innocent mistake in not proceeding according to the Act of 1812. Primfl, facie, the value of the property when and where it is replevied is the measure of compensation; but this may be varied by the circumstances as to the character of the taking and the removal to the place of the replevy.

S. Cr. Thompson and B. F. Junkin, for plaintiffs in error.

A. C. Simpson and S. Linn (with whom were C. J. T. McIntire, Blade and Meredith), for defendants in error.

Judgment reversed, and a venire de novo awarded.

The defendants, under their writs of error, assigned for error the answers of the court to their 3d and 4th points. They were argued by

The opinion of the court was delivered, July 7th 1870, by

Agnew, J.

The main questions arising in this case have been considered and disposed of in the writ of error of Craig & Blanchard v. Kline: Opinion just read. In the present writ of error the only question is upon the right of the defendants to take up the logs found lying upon the islands and not afloat. We have said in the other writ of error that the 2d section of the Act of 1866 must be taken in connection with the former acts on the same subject, and that the proceedings and notice required by the Act of 1812, as altered and modified by its supplements, are applicable to seizures of logs under the Act of 1866. The defendants had a right to take up the logs lying on the islands under the Acts of 1812,1853, and 1855, as explained by the 1st section of the Act of 1866. But having failed to comply with their provisions as to the mode of taking up the logs, the plaintiffs were entitled to recover, so that substantially the instruction of the court led to the correct result; and the judgment is affirmed.


source: Caselaw Access Project

author: Thompson, C. J.

license: Public Domain

text:
    The Riddlesburg Iron and Coal Co. versus Rogers.
    1. The court below affirmed this point: “That while the marks on the ground, as a general rule, constitute the true survey, such marks must be in accordance with the bearings, as near as may be, of the survey returned into the land office, and have some resemblance thereto.-” Held, to be error.
    2. The marks on the ground constitute the official survey; the draft is but the evidence of it and will be controlled by them.
    3. Courses aud distances are controlled by calls and marks.
    4. The work on the ground is the original.
    5. The uniform practice is to send out with the jury all title-deeds and papers given in evidence on the trial, unless there be a very special reason1 to the contrary.
    May 11th 1870.
    Before Thompson, C. J., Read, Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Bedford county: No. 28, to May Term 1870.
    This was an action of ejectment for 11 acres of land, commenced, December 14th 1864, by William Rogers against The Riddlesburg Coal and Iron Company.
    The plaintiff claimed under a warrant to himself, dated November 30th 1854, and survey January 3d 1855, returned February 1st 1855, for 11 acres and 42 perches.
    The defendants claimed under a warrant, March 13th 1794, to Francis Mowing; survey April 25th for 380 acres and 147 perches. Deed December 23d 1807, Mowing to Samuel Riddle, and patent to Riddle February 9th 1808. The question in the case was, whether the survey of the plaintiff was within the lines of the Mowing survey. There was much evidence (including the official survey) on both sides as to the lines, which, for an understanding of the questions decided, it is not necessary to particularize.
    The plaintiff requested the court to instruct the jury :—
    2. That the defendants cannot embrace the land in dispute by running lines not called for by, and totally distinct from, the survey, enclosing a tract widely different in shape from, and including a much larger quantity of land than is contained in the survey returned into the land office. .
    3. That while the marks on the ground, as a general rule, constitute the true survey, such marks must be in accordance with the bearings, as near as may be, of the survey returned into the land office, and have some resemblance thereto.
    4. That to permit a party to depart in any material degree from the official survey so as to include land that cannot by any possibility lie within the lines thereof, would be a fraud upon the Commonwealth, and all persons applying for warrants on the faith of the recorded surveys.

      These points the court (Rowe, J.) answered as follows :—
    “ 2. This point, as applied to the evidence in this case, cannot be affirmed. There is not such a. departure from the lines or shape of the returned survey in the draft of defendants as to prevent their holding the land according to it, if it represents the actual survey made on the Mowing warrant.
    “ 3. This point must be affirmed.

      “ 4. There may be even a material departure from the official survey as returned, if the marks on the ground require it, and that the marks and monuments on the ground may justify the inclusion of land which cannot possibly lie within the courses and distances as returned.”
    The defendants asked leave to send out with the jury the patent of Samuel Riddle ; the-court.refused, and sealed a bill of exceptions.
    The verdict was for the plaintiff.
    The defendants took a writ of error, and assigned for error the answer to the plaintiff’s 3d point, and the refusal to allow the patent to go out with the jury.

      S. L. Russell and F. M. Kimmell, for plaintiffs in error,
    cited, as to 1st error, Hall v. Tanner, 4 Barr 247; Quinn v. Heart, 7 Wright 341; Hall v. Powell, 4 S. & R. 456; Mageehan v. Adams, 2 Binn. 109; Walker v. Smith, 2 Barr 43; Mills v. Buchanan, 2 Harris 64; Cox v. Couch, 8 Barr 154; Petts v. Gaw, 3 Harris 222; Hunt v. McFarland, 2 Wright 69. As to 2d error: Little Sch. Nav. Co. v. Richards, 7 P. F. Smith 148.

      M. A. Points and J. Cessna, for defendant in error.
   The opinion of the court was delivered, July 7th 1870, by

Thompson, C. J.

I see not how a reversal of the judgment in this case is to be avoided, on account of the charge of the court in answer to the plaintiff’s 3d point. The point was, “ that while the marks on the ground, as a general rule, constitute the true survey, such marks must be in accordance with the bearings as near as may be, of the survey returned into the land office, and have some resemblance thereto.” This the court affirmed without qualification.

This answer is in discord with the answers to the 2d and 4th points of the plaintiff. The former affirms, that there is not such a departure from the lines or shape of the survey returned in the draft of defendants as to prevent their holding the land according to it if it represents the actual survey made on the Mowing warrant.” If this were true the court might have declined answering the 3d point as being totally unnecessary. To the 4th the court said, “ there may be even a material departure from the official survey as returned, if the marks on the ground require it, and that the marks and monuments on the ground may justify the inclusion of land which cannot possibly he within the courses and distances returned.” This was right in itself; but we fear it was controlled by the answer to the 3d point, which was in effect saying that notwithstanding all this it is only so, “ if the marks on the ground are as near as may be in accordance with the bearings of the survey returned into the land office, and have a resemblance thereto.” This was error, and damaging error in this view. The marks on the ground constitute the actual survey of a tract of land; the draft of it is hut the evidence of the survey, and will he controlled by them; so as to calls, courses and distances, all must yield to the marks and calls. The work on the ground is the original; the draft is no more in fact than the evidence of it, which from the nature of the thing is the evidence until corrected by the original, which is the work on the ground. The cases to prove this are too numerous for citation here. Some of them have been cited by the counsel for the plaintiff in error, and others of more recent date might have been cited. The instruction was undoubtedly erroneous, and for this we must reverse the judgment. It is no answer to such an error that elsewhere in the charge the doctrine may have been accurately stated, and that the whole question was submitted to the jury, under all the instructions as to the effect of the work on the ground. We could not affirm a judgment on such a verdict, without affirming an error. Besides, nobody can tell which instruction, the true or the false, weighed most with the jury.

In respect to the refusal of the court below to allow the patent to go out with the jury: — Unless there were very special reasons for it, it violated a uniform practice in this Commonwealth, which is to send out with the jury all title-deeds and papers given in evidence on the trial. If this were the only assignment of error in the ease, we might require to be shown wherein it was probably prejudicial to the party complaining, before we would reverse. That does not appear, and we disapprove of the refusal, and as this case may again be tried, it will doubtless not be repeated without a controlling reason apparent on the record.

Judgment reversed, and venire de novo awarded.


author: Sharswood, J.

text:
    McCullough versus Fenton et al.
    1. A devise (in 1800) was, “to my sons John and Elijah all my real estate, that is to say, as soon as Elijah arrives at the age of twenty-two they shall have possession and not sooner.” This created a fee.
    2. The devisees were authorized to sell or divide, this necessarily implied a fee.

      3. It was further provided that if either John or Elijah should die without lawful issue before coming into possession of the land, their respective shares were to be equally divided between Hannah, Priscilla and Martha, and “ in case any one of the said John or Elijah should die aforesaid without issue, whichever of them may survive and live to the time of possession, is to receive an equal share with the three last-mentioned girls." Held, that the fee in John and Elijah was defeasible on the death of either without issue before Elijah reached twenty-two.
    4. On the death of one of the sons without issue before they came into possession, the survivor with the daughters took a fee.
    5. The will further provided, “if any * * * of Hannah, Priscilla or Martha should die without lawful issue or not being married, that then their share or shares should go to their next of kin in equal degree of the full blood." Elijah died without issue before twenty-two. Held, that his moiety vested in John, Hannah, Priscilla and Martha in fee.
    6. A gift in remainder to the “ next of kin" of Hannah, &e., was vested.
    7. If Elijah had attained twenty-two or left lawful issue his fee would have been absolute and indefeasible.
    8. The limitation over to his brother and sisters was not a remainder, but an alternative or substituted fee, to take effect upon his death without issue before twenty-two.
    9. The devise to the “ next of kin” of the daughters was an alternative or substituted limitation to vest only in case the first limitation did not take effect.
    10. Where an absolute estate in fee simple is first limited and then upon the happening of some contingency another 'fee is substituted, a clause providing for the death of the substituted devisees or their death without issue, means only a further substitution to take effect at the pexdod when the fii'st substitution fails.
    11. Caldwell v. Skilton, 1 Harris 152, recognised.
    May 11th 1870.
    Before Thompson, C. J., Read, Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Cumberland county: No. 26, to May Term 1870.
    This was an action of ejectment for 75 acres of land, brought September 5th 1867, by Elizabeth Eenton, John E. Carson, Elizabeth R. Carson, Elisha Carson, William Carson, James MeBeth and Jane his wife in her right, and James McElwaine and Alice his wife in her right, against James MOullough.
    The parties claimed under John Carson, who died in 1800, seised of the land in controversy. The decedent left four children, viz.: John, Elisha, Ruth and Hannah by one wife; and three, viz.: Priscilla, Elijah and Martha, by another wife.
    The decedent left a will dated April 11th 1800, and proved May 6th. The will amongst other things provided as follows:—
    * * * “Next, I give and bequeath to my sons John Carson, .Jr., and Elijah Carson, all my real estate as hereafter limited, that is to say, as soon as Elijah arrives at the age of twenty-two years, they shall have full possession and not sooner. The rents and profits of said estate to go towards the keeping, maintaining and educating my younger children, to wit: Hannah, Priscilla, Martha and Elisha, if they or any of them should so long live. I further order and direct that if my said two sons cannot agree in the division of said land, or agree to sell and divide the money, that in such case they shall choose five disinterested persons to value and divide the same, whose determination shall be final.”
    He gave to other children legacies amounting to ¿S385, which he charged on the devise to John and Elijah, and proceeded :—
    * * * “ Further, it is my will that in case that John or Elijah, or either of them, should die without lawful issue before they come to the possession of the land by virtue of this my last will and testament, then in such case I order and direct that their respective shares of the land be equally divided between Hannah, Priscilla and Martha, or in case any one of them of the said John or Elijah should die aforesaid, without issue, then in such case it is my real intention that whichever of them may survive and live to the time of possession, is to receive an equal share with the three last-mentioned girls. And further, I order and direct if any of my daughters, to wit, Hannah, Priscilla or Martha should die without lawful issue or not being married, that then their share or shares should go to their next of kin in equal degree of the full blood.”
    Elijah Carson, the devisee, died in 1813, before he arrived at the age of 22 years; Martha died in 1815. On the 14th of April 1818, James Piper and four others made a report in partition, stating in it that they had been, chosen for that purpose by the heirs of the decedent, agreeably to his will, and had. divided a tract of 205 acres into equal parts of 102J acres each, one, which includes the land in dispute, to John, at a valuation of $55 per acre and the other to Hannah and Priscilla at $50 per acre. On the 7th of May deeds of partition were made between John, and Hannah and Priscilla in accordance with the report; and on the 16th and 22d of May, John conveyed his part to John Dunbar whose title is vested in the defendant. John died in 1820, Ruth died in 1823. Elisha died in 1824, leaving seven children, the plaintiffs in this case; Jane McBeth and Alice McElwaine were married before 1834, Hannah died in 1844, and Priscilla on the 12th of November 1844 executed a deed to bar the estate tail in the land in dispute, and took a reconveyance on the 20th of the same month; she died in 1864. None of the children of John Carson the elder left issue but Elisha. The premises had been held in adverse, hostile and notorious possession by Dunbar and those claiming under him since the conveyance to him in 1818.
    The question in the case was the construction of the devise of the testator’s real estate.
    Graham, P. J., charged:— * * *
    “ The facts in this case are not disputed, and it is admitted by the respective counsel that the questions presented are questions of law for the court, there being no disputed facts to submit to the jury.

    “ The plaintiff’s counsel contend that under the devise in the will of John Carson, Sr., his son John took at most but an estate in tail. In this we do not concur. Although there is no word of inheritance used by the testator in the devise to his sons, John and Elijah, we think his intention is very clear, that he intended to give them a fee simple, particularly if they or either of them survived until the time they were to have possession, when Elijah should attain the age of 22 years. It is only in case that either John or Elijah should die without issue before they came to the possession of the land by virtue of testator’s will, that the share of the deceased shall be divided between the surviving brother and Hannah, Priscilla and Martha. And although there are no words of inheritance used by testator, the land and the persons of the devisees are charged with the payment of legacies to their brothers and sisters, and it is a well settled principle that this will give the devisee a fee simple although there may be no words of inheritance. But the testator also authorizes the devisees to sell the land and divide the money. This is entirely inconsistent with the idea that he intended to give them less than a fee simple. Had Elijah attained the age of 22 years, and he and John sold the land and divided the money as the testator authorized them to do, the title of the purchaser could not have been doubted, that he would hold in fee simple, and it is difficult to suppose how the death of Elijah could reduce the estate of John from a fee simple to a fee tail. The one-fourth of Elijah’s interest upon his death vested in John in fee simple, and one-fourth in Hannah, one-fourth in Priscilla and one-fourth in Martha in fee tail. [Upon the death of Martha, her fourth passed to Priscilla, her only surviving sister of the full blood. John then held five-eighths of the 205 acres in fee simple, Priscilla two-eighths, and Hannah one-eighth in fee tail.] This being the quantum of interest, and estate held by the respective tenants partition was made by five men under the direction óf the will, and deeds executed by the respective parties as before stated. The land was divided into two equal parts each containing 102J acres. The part conveyed by John was' valued at $55 per acre, and the part conveyed by John to his two sisters, was valued at $50 per acre. A question is here presented as to validity of the partition made. Can tenants, one of whom holds an undivided interest in fee simple, and two who hold an undivided interest in fee tail make partition? This, we think,may be done where the interest of the heir in tail is not prejudiced or injured by the partition made. This would occur when the value of the respective parts corresponded with the respective interests of the tenants. This would not prejudice the heir in tail, for three-eighths in value would remain subject to the entailment. But where less land in value, is assigned to the tenants in tail, than the value of their interest in the whole, and owelty of partition is paid to them, this would be clearly an injury to the heirs in tail, it would reduce the value of the estate in tail, it would be converting a part of it into money for the benefit of the tenants in tail, and would not be binding upon them. * * *
    [“We are therefore of opinion that their partition is of no validity against the heirs in 'tail.]
    “ But Priscilla Carson, in her lifetime, on the 12th November 1844, executed a deed under the Act of Assembly to bar her estate tail in the land in controversy. This deed, although it was executed many years after she had parted with her interest in the land, is valid and available to bar the estate tail, and will enure to the benefit of the vendees claiming under her, so that there can be no recovery as to the two-eighths of whieh she was tenant in tail.
    “ The only remaining interest is the one-eighth of Hannah, who died 4th April 1844. The suit was brought to November Term 1867, more than twenty-three years after her death. The land in controversy has been in the hostile, adverse and notorious possession of the vendee of John Carson, and those claiming under him since 1818, a period of forty-nine years. It has been occupied by residence and cultivation, by those claiming title, as farms are usually occupied. [The present plaintiffs had a right of entry at the death of Hannah Carson, more than twenty-three years before suit brought, and that right is now barred by the Statute of Limitations, and they cannot recover, except James McBeth and Jane his wife and Jam'es McElwaine and Alice his wife. They were at the death of Hannah Carson and still are married women. The statute does not run against them, and they are entitled to recover the two-sevenths of the eighth of 75 acres and 19 perches, described in the plaintiffs’ statement.”]
    The verdict was for James McBeth and wife, and James McElwaine and wife, for the undivided two-sevenths of the one-eighth of the land in dispute.
    The defendant took out a writ of error, and assigned for error the parts of the charge in brackets.

      A. B. Sharpe and J. McD. Sharpe, for plaintiff in error.
    The questions are, 1. The words in the devising clause. 2. The power to divide the land, or to sell and divide the money. 3. Charging the land with the payment of the pecuniary legacies.
    1. Morrison v. Semple, 6 Binn. 98; Wilson v. Wilson, 2 Id. 20; Dice v. Sheffer, 3 W. & S. 419; Saylor v. Kocher, Id. 163; McClure v. Douthitt, 6 Barr 414; Culbertson v. Duly, 7 W. & S. 195; Peppard v. Deal, 9 Barr 140; McCullough v. Gilmore, 1 Jones 370; Foster v. Stewart, 6 Harris 23; Weidman v. Maish, 4 Harris 504; Schriver v. Meyer, 7 Harris 87; Wood v. Hills, 7 Harris 513; Shinn v. Holmes, 1 Casey 142; Holmes v. Pattison, Id. 484; Taylor v. Board of Health, 7 Id. 78; Hall v. Dickinson, 1 Grant 240; Estate of Mary Biddle, 4 Casey 59.
    2. Morris v. Phaler, 1 Watts 389; Maskeyline v. Maskeyline, Amb. 750; Nannock v. Horton, 7 Ves. 392; Robinson v. Dusqole, 2 Vern. 161; Second Reformed Presbyterian Church v. Disbrow, 2 P. F. Smith 219; Grove’s Estate, 8 Id. 429; Brown’s Estate, 2 Wright 289; Barnett v. Deturk, 7 Id. 92; Watson v. Pearson, 2 Exch. 581.
    3. Lobach’s Case, 6 Watts 171; Hoover v. Hoover, 5 Barr 355; Burkart v. Bucher, 2 Binn. 464; Harden v. Hays, 9 Barr 151; Coane v. Parmentier, 10 Barr 72; Fulton v. Moore, 1 Casey 468; Schoonmaker v. Stockton, 1 Wright 461; Stevens v. Snelling, 5 East 87; Sams v. Garlick, 14 M. & W. 698; Dalton v. Heweer, 6 Mad. 9; Doe v. Richards, 3 Term R. 356.
    The rule that if a devise be made to one in fee, and “ if he die without issue,” or, “on failure of issue,” or, “for want of issue,” or “ without leaving issue,” then over to another in fee, the estate of the first taker is in tail, has- no place when it appears from the will itself that the testator meant a failure of issue within a fixed period: Vaughan v. Dickes, 8 Harris 509.
    The testator contemplated a definite failure: Cassell v. Cooke, 8 S. & R. 290; Purefoy v. Rogers, 2 Saund. 388; Tomkins v. Tomkins, cited in Goodtitle v. Whitby, 1 Burr. 234; Bramston v. Holyday, 1 W. Bl. 335; McCarthy v. Dawson, 1 Whart. 4; Beltzhoover v. Costen, 7 Barr 13; Jessup v. Smuck, 4 Harris 327; Langley v. Heald, 7 W. & S. 96; Caldwell v. Skilton, 1 Harris 152; Hawkins on Wills 136, 137; Toovey v. Bassett, 10 East 460; Caskey v. Brewer, 17 S. & R. 441; McCaskey v. Graff, 11 Harris 321; Braden v. Cannon, 12 Id. 168 The limitation over being on an indefinite failure, Hannah, Priscilla and Martha took an estate tail: Smith on Executory Interests 301; Findley v. Riddle, 3 Binney 139; Turner v. Fowler, 10 Watts 325; Langley v. Heald, 7 W. & S. 96; Taylor v. Taylor, 13 P. F. Smith 481; Smith’s Executory Interests 538; Eichelberger v. Barnitz, 9 Watts 447; Eby v. Eby, 5 Barr 463; Covert v. Robinson, 10 Wright 274; Wynn v. Story, 2 Id. 166; Matlack v. Roberts, 4 P. F. Smith 148; Linn v. Alexander, 9 Id. 43. On Martha’s death unmarried and without issue her share passed to Priscilla as a contingent remainder in fee: Heffner v. Knepper, 6 Watts 18; Lapsley v. Lapsley, 9 Barr 130; McIntyre v. Ramsey, 11 Harris 317; Ivins v. Scott, 2 Casey 215; Caskey v. Brewer, 17 S. & R. 441; Riehle's Appeal, 4 P. F. Smith 97; Johnson v. Curran, 10 Barr 498; Curran v. McMeen, 5 P. F. Smith 487; Fetrow’s Estate, 8 Id. 424; Walker v. Dunshee, 2 Wright 430.

      W. M. Penrose and Henderson & Hays, for defendants in error.
    Hannah took an estate tail: Eichelberger v. Barnitz, Braden v. Cannon, supra; Amelia Smith’s Appeal, 11 Harris 9; Price v. Taylor, 4 Casey 95.
   The opinion of the court was delivered, July 7th 1870, by

Sharswood, J.

“Wills, and the construction of them,” said Lord Coke, “ do more perplex a man than any other learning; and to make a certain construction of them, this exoedit jurisprudents artem2 Bulstr. 130; Lord Mansfield remarked once of a will before him: “ It is plain that the testatrix at the time of making her will had legal assistance, but it was such assistance as served only to confound, by making her use all the drag-net words of conveyancing without knowing the force of them:" Doe v. Fyldes, Cowp. 834. Every judge and lawyer of experience when called on to interpret such wills, has felt, if he has not given utterance to the wish, that the testator had been allowed to express his meaning in his own simple inartificial language without any attempt to employ legal and technical phrases. Had that been done in the will before us, it is more than probable that there would have been no difficulty or complication in it.

It is our duty, however, to ascertain from the words in connection with the circumstances surrounding the testator what was his intention; for, when ascertained, that is to be carried into effect if it does not violate some established rule of policy or law. Though admitting this to be the first and cardinal canon of interpretation, we often lose sight of it in the vain endeavor to follow and conform to the decisions upon other wills where the language is similar. This is certainly a very laudable object; but we must not attain it at the expense of frustrating the lawful intention of the testator in the particular case. Nullum simile quatuor pedibus currit. No two wills are ever exactly alike; and we run no risk of introducing any novel precedent; for there is no construction, which may not be referred to some category, and will not have many fellows in company to keep it in countenance. We may mistake in the application of a principle; but that is not of much importance when the real justice of the cause between the parties is reached, because the decision can never be a precedent unless a case occur in which exactly the same words are used under the same surrounding circumstances; a contingency which may be styled potentia remotissima, and therefore not worthy to be regarded.

The learned judge below was undoubtedly right in holding that under the will of John Carson, his sons John and Elijah took a' fee simple. It was defeasible indeed upon the death of both or either without lawful issue before Elijah arrived at the age of twenty-two, at which time they were to have full possession and not sooner. The contingency was so clearly confined to that fixed period by the words of the will as to place it beyond any question. “ All my real estate” were of themselves enough to convey the fee without the word heirs; in addition to which were the circumstances that they were to pay sums in gross, and were authorized either to sell or divide, which necessarily implied a fee. Nor can it be a question that the words by which upon the death without issue of John or Elijah before coming to the possession of the land, the share of either was to be divided, equally between Hannah, Priscilla and Martha, and the survivor of the sons, conveyed to them the fee. “ Their respective shares” are shares of the estate before devised, which as we have seen was a fée. We have therefore upon the limitations .of the will thus far without serious difficulty, in the event which occurred, namely the death of Elijah before he arrived at the age of twenty-two, a vested estate in fee simple in John, Hannah, Priscilla and Martha. Then follows the clause which creates the difficulty and gives rise to this controversy: “ And further I order and direct, if any of my daughters, to wit: Hannah, Priscilla or Martha, should die without lawful issue or not being married, that then their share or shares should go to their next of kin in equal degree of the full blood.” When was this death without lawful issue or not being married in the contemplation of the testator to take place ? It seems to have been assumed below on both sides that it meant-either an indefinite failure of issue or a failure of issue liying at the death of either of the daughters, whenever that might occur. In the former case - the legal effect, according to numerous authorities to avoid the result, that as an executory devise it would be void for remoteness, is to reduce the estate of the first taker to an estate tail, with a vested remainder to the next of kin. I say a vested remainder because though a man can have no heirs while he is alive, as his heirs cannot be ascertained until his death, and therefore such a remainder is necessarily contingent, yet it is not so as to a gift or remainder to the next of kin; who are always capable of ascertainment during his life. Supposing this then to have been the true construction, the remainder as‘to Martha’s share was a vested remainder in Priscilla, and as to Hannah’s a vested remainder in John, Elijah and Ruth. These remainders were in fee; for here again the word ‘ share or shares’ carried the estate in fee before given to the next of kin. This seems to have been lost sight of upon the construction adopted in the court below; for John’s remainder upon Hannah’s estate being a vested remainder in fee, certainly passed by his deed to John Dunbar, May 16th 1818. In the view we take of the case, however, this is now immaterial. It must be admitted that there is nothing in the words employed to take the case out of the operation of the rule as settled in Eichelberger v. Barnitz, 9 Watts 447, Vaughan v. Dickes, 8 Harris 509, and Matlack v. Roberts, 4 P. F. Smith 148, so as to make the dying without issue to mean a definite failure of issue living at the death of either of the daughters, whenever that should take place. As between these two constructions therefore the learned judge below was perfectly right in adopting the former one. But there is another construction which was not suggested to him, and which,as it appears to us, fulfils more perfectly the real intention of the testator than either of these.

It is to be observed, that if Elijah had attained twenty-two or left lawful issue, his fee first given would have been absolute and indefeasible. His brothers and sisters would have had no interest in his moiety. The limitation to them was not a remainder, but an alternative or substituted fee, to take effect upon the contingency of his death without issue before that period. It seems equally plain that the devise to the next of kin of the full blood of the daughters in the event of their death “ without lawful issue or being married,” was in like manner an alternative or substituted limitation to vest only in case the first limitation in fee did not take effect. The whole is one simple and entire disposition, referred to the event of the death and failure of issue of Elijah at a fixed, definite period; and there is no reason for distinguishing the one substitution from the other, but many against it. We have seen that the limitation to the next of kin of the full blood is unquestionably in fee. If the construction which reduces the estate of the daughters to an estate tail be adopted, then we have the original shares in tail, and the accrued shares in fee; an anomaly which has been considered as inadmissible, and not within any reasonable construction of the intention. “Besides,” says Mr. Justice Bell, “ that construction would make defeasible the original shares first taken under the will, while those which might accrue by the clause of survivorship would vest absolutely: a consequence certainly never contemplated:" Caldwell v. Skilton, 1 Harris 155. On the death of Martha, then, her share would vest in Priscilla in fee, while her own original share she would have held according to this construction in tail. John’s original moiety was undoubtedly in fee; his fourth part of Elijah’s moiety was also in fee, and so was his share of Hannah’s interest upon her death as her next of kin of the whole blood, while Hannah’s own original share would have been in tail. What was the effect, or rather the want of effect, of the words “or not being married,” is settled, I agree, in Vaughan v. Dickes, 8 Harris 509, and Matlack v. Roberts, 4 P. F. Smith 148, though for myself I concur in the doubt expressed by my brother Agnew in the latter case, if the question were res integra. We must consider that these words will not make the failure of issue definite. In that view the sentence is to be disencumbered of the marriage condition. If there was no marriage there could be no lawful issue, and as to the interest of husband and wife, it mattered not; for there is dower and curtesy of an estate tail as well as of a fee simple. But the rule is an established one to give effect to every word, when it can be done, and these words ought not to be rejected if they indicate that the intention of the testator was not an indefinite failure of issue or an estate tail, but a substituted or alternative fee. Now in this latter view they are important and very significant. If Hannah had died before Elijah, “being married,” she would have left a husband, and it was not the intention of the testator to deprive him of his curtesy, or to deny to Hannah in that event the power to provide for him by will. These words were necessary in that case, though they would have been insignificant and useless had an indefinite failure of issue been contemplated. In Doe d. Everett v. Cooke, 7 East 269, the bequest was to B. and his assigns, and after his death then to his child or children by any future wife, but in case B. should die “ an infant, unmarried and without issue,” then over'to C. and his children. B. attained majority, and died leaving a widow, hut without issue: it was held that the gift over failed. Lord Ellenborough said: “ Had he left a wife and had died an infant and no children, the testator might have intended that in such event the widow should be benefited by taking her share under the Statute of Distribution with the next of kin, or that B. should be able to make a testamentary disposition in her favor; meaning also that if he left children, they should have the estate in preference to the wife; and that if he left neither wife nor children at his death during his minority, C. and his children should have the estate; but that if he arrived at the age of twenty-one he should have power to dispose of it, though he left neither wife nor children.” So in the case of Doe d. Baldwin v. Rawding, 2 B. & Ald. 441, where a testator devised his lands to his daughter, and any other children he might leave, and to her or their heirs and assigns for ever; but in case his daughter and such other children as aforesaid should die under the age of twenty-one years, unmarried and without lawful issue, then to his wife in fee. The daughter died under age and without issue, but leaving a husband surviving; and it was held on the authority of the last ease, that the devise over failed, the word “unmarried” being construed “not having a husband at the time of her decease,” by which effect was given to all branches of the contingency. These words show, then, that the testator had reference to a definite, fixed period of time; and that could only have been the event of the death of a daughter before taking her substituted estate upon the death of one or both his sons before Elijah arrived at twenty-two.

Nor are we without -authority for thus holding. Indeed since Caldwell v. Skilton, 1 Harris 152 a (case which in all the conflict of opinions on this subject has never been denied or doubted, but on the contrary expressly approved in Jessup v. Smuck, 4 Harris 340), I think it may be laid down as a general rule, almost without an exception, that where an absolute estate in fee simple is first limited, and then upon the happening of some contingency another fee is substituted for it, a clause providing for the death of the substituted devisees or their death without issue, means only a further substitution to take effect at the period when the first substitution fails. I regard the case of Caldwell v. Skilton as identical with this ease in the material provisions of the will, and an authority in point for the construction which I have sought to establish. There the testator gave to his wife all his estate real and personal during widowhood, after her decease or marriage whichever might first happen, to his children nominatim, their heirs and assigns for ever, as tenants in common. “And in case of the death of either of my said children, his or her share or purpart to descend to the children of said child, or if said child should die without issue born alive, then the said share to be divided among and be enjoyed by my children, their heirs and assigns for ever, share and share alike-as tenants in common.” Here was first a limitation in fee to the children on the death or marriage of the wife, then in case of the death of a child, a substituted fee to his or her children — with another substitution in case there should be no issue born alive — to the survivors in fee. It was held that the death of a child without issue had exclusive reference to the period of the death or marriage of the widow, and that the children took estates in fee simple. “ Congruity requires,” says Mr. Justice Bell, “that the chance of survivorship among the-children of the testator, and the possible event upon which the limitation over to their children might take effect, should be referred to the same determinate period; or, in other words, to let in the survivors on the death of any of their brothers or sisters without issue, the contingency must happen within the same definite time, when according to the settled rules of construction, the contingency implied from the words ‘ in case of the death of any of my children,’ must occur to give place for the substitution of the grandchildren.” Then, after quoting largely from Mr. Powell’s Essay on Devises, he adds as the generalization derived from the discussion: “ I have said that to harmonize this will and to give consistency to all its parts, we must refer the possible consummation of the second contingency as creative of an estate in the survivors to the same limit. Such a construction is not only called for by reasons springing from this particular testamentary instrument, but is justified by authoritative precedent. Now the ultimate gift to the survivors is made to depend upon an actual contingency. Where, say the determinations, this is the case and there is nothing in the will to show the contingency of dying without children was meant to operate without limit during the life of the first taker, it is, as in the other instance, restricted to the death of the testator or within a given period after his decease. Where the gift is immediate, the contingency is held determined by the first named event; where there is an intermediate estate, time may be given for the happening of the possibility during the running of the precedent interest. Examples and illustrations of this rule are afforded by Doe d. Lifford v. Sparrow, 13 East 359, which was a devise of realty: Jenour v. Jenour, 10 Ves. 562, and Grillard v. Leonard, 1 Swanst. 161, all of which are very like the instance in hand.” To which may be added Shutt v. Rambo, 7 P. F. Smith 149. A testator devised to his daughter a farm “ in fee,” and gave other real estate in fee to other children: “ should any of my children die without heirs, then the property hereby bequeathed to them shall revert to my estate.” It was held that the word “ heirs” evidently meant “issue” — and though in consequence of the Act of April 27th 1855, Pamph. L. 368, it mattered not whether it was construed to be an estate tail or a fee — yet the evident preference of Chief Justice Thompson in the ppinion pronounced was to the construction which referred the dying without issue to the death of any of the devisees in the lifetime of the testator. He refers to Schoonmaker v. Stockton’s Adm., 1 Wright 461, where under a similar limitation in case of a child dying unmarried or without issue, Chief Justice Lowrie said: “we suppose it was intended not to reduce or defeat any estate vested in enjoyment under the will, but to dispose of any that might fail to become thus vested hy the death of a child before the testator or perhaps before actual distribution.” And see Umstead & Reiff’s Appeal, 10 P. F. Smith 365. Under this interpretation of the will of John Carson, on the death of Elijah without issue before arriving at the age of twenty-two, his moiety of the estate vested in John, Hannah, Priscilla and Martha in fee simple. Upon the death of Martha her share vested under the intestate laws in her sister of the whole blood, Priscilla. The deed of partition and release of May 9th 1815, by Hannah and Priscilla conveyed their entire estate to John Carson, Jr., in fee which by deed May 16th 1818, he conveyed to John Dunbar in fee, from whom the title was regularly reduced to James McCullough, the defendant below,who was therefore entitled to the verdict.

Judgment reversed.


author: Agnew, J.

text:
    Walker, Garnishee, versus Coover, Administrator, &c., of Bittner.
    1. Snyder held two bonds against Walker; being indebted, he assigned them verbally to Patton, a married woman, as collateral security, upon her assuming to pay his debts. The contract was binding on Snyder, notwithstanding her coverture.
    2. The bonds were levied on in Walker’s hands under an attachment execution against Snyder. The court charged that the assignment was void except for what Patton had actually paid before the service of the attachment. Held, to be error.
    3. The rights of property acquired by a married woman on the faith of a promise which she voluntarily performs cannot be struck down by the creditor of one who has ceded his property to her upon the contract.
    4. The right of the creditor of the assignor cannot rise higher than that of the assignor.
    5. An attaching creditor stands in the shoes of his debtor as to the property attached.
    May 11th 1870.
    Before Thompson, C. J., Read, Aonew and Sharswood, JJ.
    Error to the Court of Common Pleas of Somerset county: No. 33, of May Term 1870.
    On the 6th of February 1861, Matthias Bittner issued an attachment execution against Josiah Snyder on a judgment recovered against him on the 5th of February, for $588.75. Samuel Walker was one of the garnishees; he answered interrogatories and also pleaded nulla bona. On the 20th of September 1869, Snyder’s death was suggested, and John B. Coover, his administrator, was substituted.
    On the same day the case came on for trial before Rowe, J.1
    The father of Snyder devised to him certain real estate, subject to legacies to his three sisters, of whom Sophia Patton, the wife of John W. Patton, was one. He sold the land to Walker, the garnishee, and as part of the purchase-money took from him a judgment-bond for $6000, payable in annual instalments of $500 each; the first on the 1st of April 1859, and the last on the 1st of April 1870. In January 1861 Snyder, who was a storekeeper, sold his store to Mrs. Patton, and on settlement with her she fell in his debt $800, for which she gave him notes; these he assigned shortly afterwards in the same month to Gabriel Walker, to whom he owed $926.44, which Walker had paid as surety for him on his bond as assignee of one Heiple. On the 1st of February 1861, he assigned to his sisters three of the $500 Walker bonds. Walker, in his answer to the interrogatories, admitted that two of the Walker bonds, due respectively April 1st 1869 and April 1st 1870, were unpaid and owing by him, and that they had not been transferred at the time of the attachment. The garnishee gave evidence that at or about the time of the assignment of Mrs. Patton’s $800 notes to Gabriel Walker, Mrs. Patton and Snyder agreed that he would verbally assign to her the two bonds in controversy as collateral security, she to pay Gabriel Walker the balance of $126.44 due to him, and also other indebtedness amounting to $425; that Mrs. Patton assumed and subsequently paid this indebtedness; some of G. Walker’s remained unpaid. The bonds were assigned on the 3d of October 1868. He gave evidence also that the husband of Mrs. Patton was present when she gave the $800 notes, and the arrangement was made between her and Snyder that she should pay Snyder’s debts and he assign the bonds; that the notes given by her for the store were paid to Gabriel Walker by her husband as her agent.
    Judge Rowe charged:—
    * * * “Mrs. Patton was at the time a married woman. John W. Patton, her husband, was present when Gabriel Walker and Josiah Snyder met in January 1861. He seems to have been acting for her. This arrangement then, in January 1861, was an agreement, a contract between Josiah Snyder and a married woman, that she should assume certain debts of his, and be secured against loss by means of a portion of a judgment he had, which was not then assigned to her. There was no benefit to accrue to her so far as appears. She was not legally competent to make such a contract. What then was Josiah Snyder’s position with relation to these two last instalments of the Walker judgment on the 6th of February 1861 ? for Bittner, the attaching creditor, doubtless stood in the shoes of Snyder. The latter held these two instalments unaffected by the contract made with Mrs. Patton, except so far as she had executed the contract by payment of the assumed claims.
    “ So far as she had executed the agreement before the 6th of February 1861 — the date of the service of the attachment on Walker, the garnishee — she will be protected. Although she could not be compelled to execute the contract she had made, being void as to her for want of ability to contract, nevertheless, so far as she had executed it, Josiah Snyder would be bound. It was money paid by her at his request, upon his agreement that she should have an equal amount out of these two instalments. To the extent that she had paid money in pursuance of the agreement, the two instalments belonged to her. The remainder was Snyder’s and was liable to attachment. How far had she executed the agreement on the 6th of February 1861 ?” * * *
    The verdict was for the plaintiff for $893.04; execution on all over $513.75 to stay till April 1st 1870.
    The garnishee took a writ of error, and assigned the charge for error.

      C. Meyers and W. K. Koovitz, for plaintiff in error.
    A married woman may enter into contracts: Manderbach v. Mock, 5 Casey 46; Weiman v. Anderson, 6 Wright 311; Rush v. Vought, 5 P. F. Smith 437; Williams v. Coward, 1 Grant 22; Williams’s Appeal, 11 Wright 307. The contract, if not binding on the wife, was on the husband, having been made with his consent: Heugh v. Jones, 8 Casey 433; Hallowell v. Horter, 11 Id. 379; Robinson & Co. v. Wallace, 3 Wright 132. Bittner acquired only Snyder’s position in the contract: Pellman v. Hart, 1 Barr 263; Tritts v. Colwell, 7 Casey 232; Riddle v. Etting, 8 Id. 413; Patten v. Wilson, 10 Id. 299; Strong v. Bass, 11 Id. 333; Myers v. Baltzell, 1 Wright 491; Fessler v. Ellis, 4 Id. 248; Reed v. Penrose, 2 Grant 488.

      J. O. Kimmel and J. Hugus, for defendant in error.
   The opinion of the court was delivered, July 7th 1870, by

Agnew, J.

All of the assignments of error in this case rest upon a single question, upon the right of Mrs. Patton to take and hold the last instalments of $500 each of the judgments of Josiah Snyder against Samuel Walker. The court below held that the verbal transfer of these two instalments by Snyder to Mrs. Patton, as collateral security for certain debts, which she undertook to pay for Snyder, was void as to all sums paid by her after service of the attachment on her and Samuel Walker. This is on the ground that she is a married woman, and her contract not binding on her. In this we think the learned judge erred. While the contracts of a married woman cannot be enforced against her, if she dissents, it does not follow, that rights of property acquired by her on the faith of her promise which she performs voluntarily, can be struck down by the creditor of the person who has ceded his property to her upon an honest contract. Clearly her title is not void if she pays or fulfils the consideration she has promised. The right of the creditor of the assignor cannot rise higher than that of the assignor himself. The attaching creditor stands in the shoes of his debtor as to the property attached. In this case the agreement of Mrs. Patton to pay the debts of Josiah Snyder, for which he made the assignment of the last two instalments of his judgment against Walker, was made by and through her husband, so that the contract and assignment both had his assent. Part of the debts of Snyder she paid before the service of the attachment, and the remainder she has since paid. The assignment of the two instalments was a complete and executed transaction before the attachment issued. The fact that it was a verbal transfer cannot change the effect of the act. It was not an agreement for a future transfer, but a present security given by Snyder to secure her in making the payments for him. The payments to be made by her were the consideration only, and not a condition to the vesting of title in her to the instalments. Therefore, when the plaintiff issued his attachment, the title to the instalment had already vested in her, and was beyond the reach of the writ unless she were incapable of accepting a transfer, or she had avoided the assignment to her by refusing to perform the agreement which constituted its consideration. The attaching creditor could not avoid it by his option alone. That a married woman can take property by purchase is very clear: Bacon’s Abridg. tit. Baron & Feme, Div. 1; Kutz’s Appeal, 4 Wright 90; Williams’ Appeal, 11 Id. 309-10; Wieman v. Anderson, 6 Id. 311; Bortz v. Bortz and Wife, 12 Id. 382; Manderbach v. Mock, 5 Casey 43. There was no question here as to the rights of-the husband of Mrs. Patton, as he had assented to the assignment to his wife, and the plaintiff was not his creditor.

Judgment reversed, and a venire facias de novo awarded.