(Robinson v. Woelpper.)

she was married. I may admit that the husband could sue for it alone could release it-assign it; that it would go to the assignees of her husband, if a bankrupt, or insolvent debtor. Here he has not sued for it, nor released, nor assigned it, nor been declared a bankrupt, nor assigned and been discharged under the insolvent debtors' act.

The position, that if a husband can sue for it alone, and recover, it is his, and goes to his executors, and does not survive, is not admissible. He may assign a term for years-bring ejectment, and recover it in his own name. It may in his lifetime be taken on execution for his debt; and yet every book says, that if he does not assign it does not bring an ejectment for it, in his own name, but leaves it not sued for, or joins his wife with him, as plaintiff, in the ejectment, or it is not taken in execution for his debts, during his life, it survives to the wife; and he cannot prevent this, by devising it; though he could have sold or assigned it till the last moment of his life. In England, legacies are recoverable generally in chancery, and this has introduced a part of their law, as to husband making provision for his wife, where the gift is to her, before he can recover the bequest; and on this subject, also, all the decisions are not easily reconciled. We may say that, generally, where he has made a settlement on her at the marriage, he gets legacies, claiming as a purchaser, without any new settlement on recovering the legacy. But this is not universally so. For where the sum settled at the marriage is small, and the legacy large, he has been compelled to settle a further sum. In this case, the husband has made no settlement; and his creditors can't claim on that account. But this chancery power has not been exercised in this state. It would seem, then, that although the right of the husband is in many cases absolute, yet, if he does not exercise the right, it expires with his life. He is entitled to the property, to the term for years, the chose in action or legacy; but he is entitled to it, and owns it, in right of his wife; and when he dies without having exercised his right, her right is superior to, and exclusive of all others. Husband and wife are, in law, but one person. All rights to personal property which were in her, by this legal fiction, are in him, as identified with her, during his life; and though he, having the power to sue or dispose, may recover, and reduce to possession or dispose of the chose in action without her, yet the right still remains in her so far, that if she survives, she has it precisely as she had it before marriage.

The act of the husband only, can divest this right of the wife. A creditor can imprison a man if he does not pay his debts, and has no property on which to levy it. But, although in prison, the creditor cannot compel him to assign his own bonds, given directly to himself; nor the bonds or legacies given to his wife before her marriage and I think no casc or dictum can be found to show,

(Robinson v. Woelpper.)

that during his life, or after his death, the bond or legacy to the wife, before marriage, can be taken for his debt. If he wishes to be discharged from prison under acts for relief of insolvent debtors, he must assign them; and then, it is the act of assigning, which passes them to the ereditors. The fact of his being indebted, and no other fund to pay creditors, will not pass them. The law seems to require some act of the husband, to take them from the wife. If no act is done by the husband, the chose in action, which was the wife's before marriage, must be hers after his death. In this case, the husband has done no act: has not sold, released, or assigned-either voluntarily or as a bankrupt. The result of this may be, that a husband may have a right to money which he could get, but which his creditors cannot reach. So a bond may be due to him, or a debt; his creditors cannot levy on either of these; and if he will lie in jail, they cannot obtain them during his life. A bond to himself, or a debt to himself, may, after his death, be reached by his creditors; but a legacy or debt to the wife, before her marriage, if not collected by the husband, his creditors cannot obtain: for, as it was originally in the wife, and the husband's right arose from the fiction of the law, which, for many purposes, considers husband and wife but one person, the law remits to the wife her original right on the death of the husband; and neither the heirs nor creditors of the deceased husband have any right to it. The very point now before us, was decided by this court, in 2 Watts. 90; for this yearly sum is the legacy. The bequest is not of the principal to the wife, and the interest annually. If it was so, I am not aware that it would make any difference. If a bond is due to a woman before marriage, and neither principal nor interest disposed of by the husband during life, the whole, on his death, goes to the wife. So of a legacy bearing interest.

Whether any legacy can be attached for the debt of the legatee, has not yet been decided in this state, and we say nothing about it. Judgment affirmed.

[PHILADELPHIA, JANUARY 26, 1836.]

RICHARDS and Others against MURPHY.

IN ERROR.

In trover against one who had purchased goods from a person alleging himself to be the owner, declarations by an agent of the plaintiff, made at the time of the purchase by the defendant, disclaiming title in the plaintiff, were held to be admissible in evidence on the part of the defendant.

ERROR to the District Court for the City and County of Philadelphia.

An action of trover was brought to September term, 1832, of the District Court, by Mark Richards, John Hemphill, George M'Clelland, and Tobias Huber, against James Murphy, to recover the value of certain pieces of lumber, alleged to be the property of the plaintiffs, and to have been converted by the defendant.

It appeared, upon the trial, that the plaintiffs were concerned together in the business of planing boards by steam power, and received lumber for that purpose: that a quantity of lumber was landed upon the wharf of Davis & Biddle, on the river Schuylkill, at the request of one Inslee, for the purpose of being carted thence to the lumber yard of the plaintiffs, upon a contract made by Inslee on their behalf, for the purchase of it from the consignees. It was not, however, taken away from the wharf; the plaintiffs refusing to ratify the contract; but, while there, part of it was sold to the defendant by one Trimmels, who alleged himself to be the agent of the consignors, and to whom the defendant paid the price agreed upon between them. It appeared, also, that the consignors of the lumber had recovered the value against the present plaintiffs, in an action on the contract. The plaintiff having proved the possession of the lumber by the defendant, and that the property was in the plaintiff, by reason of the recovery of the price or value of it from them by the owner; the defendant offered in evidence declarations of Inslee, made after the landing of the lumber on the wharf, and before the purchase by the defendant-that the lumber did not belong to the plaintiffs. It was shown, that Inslee was employed in the lumber yard of the plaintiffs, and had charge of their planing machine. The plaintiffs' counsel objected to the admission of Inslee's declarations; but the judge admitted them, and the evidence having been gone through, charged the jury in substance as follows:

"There being no dispute about the value of the lumber, the case depends on a few plain principles. The only person known in the business, on the part of the plaintiffs, was Mr. Inslee, who had ap

VOL. I.

24

(Richards v. Murphy.)

plied to Davis & Biddle for permission to land the lumber, and throughout acted for the plaintiffs, who must take his acts throughout. Unless somebody else is answerable, one or other of these parties must lose their money. It appears that Inslee, after having been repeatedly sent to by Davis & Biddle, declared that the concern had nothing to do with this lumber, and would not receive it, and left Davis & Biddle to take their own course with regard to it; and in consequence of that, as a point of law, any person purchasing for, or with the knowledge and approbation of Davis & Biddle, had a right to take the property; and if Davis & Biddle chose to sell or allow a sale, by a person they honestly believed had a right to sell, after Inslee had disclaimed the ownership, the purchaser may hold the property, and the plaintiff may look to Davis & Biddle, or to the person actually selling, if they have any claim. But as a point of law, Murphy is protected, having purchased with the knowledge and approbation of Davis & Biddle. Murphy used due precaution, received the lumber from a responsible house, and he is protected. If he is responsible, then every one, who has a piece of this wood in a bureau, may also be made responsible, and may be sued on the same principle. There must be some limit to a man's following his property."

The plaintiffs' counsel excepted to the admission of Inslee's declarations, and to the charge of the court; and, having removed the record to this court, assigned the following errors:

"1. The judge who tried the cause, permitted the declarations of John Inslee to be given in evidence to the jury, to affect the rights of the plaintiffs, the said Inslee being no party to the record, and no authority shown to bind the plaintiffs by his declarations-the said evidence being objected to by the counsel for the plaintiffs.

2. The judge charged the jury, that there being no dispute as to the value of certain lumber which was the subject in controversy, and the said Inslee having applied to land the said lumber, and being the only person known in the business, on the part of the plaintiffs, his declarations and acts bound them throughout.

3. The judge charged the jury, that the plaintiffs were prevented from recovering by the declarations of Inslee, that the lumber in question did not belong to the concern, and that they would have nothing to do with it. That the owners of the wharf might sell it, or do as they pleased with it.

4. The judge further charged the jury, that any person buying the said lumber, with the knowledge and consent of the owners of the wharf, after the said declarations, would have a right to hold it."

Mr. Chew, for the plaintiff in error, cited Hosack v. Weaver, (1 Yeates, 478.) Easton v. Worthington, (5 Serg. & R. 130.)

(Henry v. Sims.)

Mr. Hirst, contra, cited Shelhamer v. Thomas, (7 Serg. &.R. 106.)

PER CURIAM. A disclaimer of title by the plaintiff in person, when the defendant bought, would have concluded him; whether it were made in fraud or in ignorance; for every man is bound to bear the consequences of his own mistakes. The matter, then was, whether Inslee, who appears to have had some sort of agency under the plaintiff, had power to represent him on the occasion; and that presented a question for the jury. There was at least some evidence to raise it; and as error is not to be presumed, we are bound to say the assignment of it has not been sustained.

Judgment affirmed.

[PHILADELPHIA, JANUARY 30, 1836.]

HENRY against SIMS.

IN ERROR.

1. A judgment in a scire facias upon a mortgage, for the amount of the money due upon the mortgage, is a judgment for a "debt or damages," within the 14th section of the act of 13th April, 1791; which provides for entering satisfaction of such judg. ment, and gives a penalty to the party aggrieved by the refusal to enter satisfaction. 2. It is not necessary that the party suing for such penalty, should prove that he has sustained actual damage by the refusal to enter satisfaction; The jury may take into consideration all the circumstances by which the party has suffered vexation and inconvenience.

THIS was a writ of error to the District Court for the city and county of Philadelphia, to remove the record of an action of debt, brought in that court by Joseph Sims against Alexander Henry, to recover the penalty given by the 14th section of the act of 13th April, 1791, for not entering satisfaction of a judgment in the said

court.

The circumstances were as follows:

On the 23d of December, 1820, Joseph Sims executed a mortgage of certain property in the county of Philadelphia, to Alexander Henry, to secure the payment of $10,000 with interest, money lent by Alexander Henry to Joseph Sims.

In the spring of the year 1823, Joseph Sims, being then insolvent, executed an assignment of all his property for the benefit of his cre