Page 212, line 7, for "is not allowed" read "ought not." In a few of the copies the first two lines on page 347 should Page 349, line 5, for "ed" read "carried." CASES IN THE SUPREME COURT OF PENNSYLVANIA. Lessee of PEMBERTON and others against Hicks. CASE stated, to be considered in the nature of a special__1799. verdict. Monday, "Joseph Galloway intermarried with Grace Growdon, by 23. "whom he had issue born alive (and still remaining alive) be- The curtesy "fore the death of Lawrence Growdon father of the said Grace; husband in estate of the "which said Lawrence being seised in fee simple of the premi- the lands of the wife is ses in the declaration mentioned, by his testament and last not forfeited "will duly executed devised the same with other real estate to the commonwealth "to the said Grace Galloway and a certain Elizabeth Nichol- for the life of "son his two daughters, in fee. Thomas Nicholson the husband the husband by his at"of the said Elizabeth, and Joseph Galloway and Grace his tainder for "wife, in due form of law made partition by writ of the premi- treason com"ses to them devised as aforesaid, in which said partition the her lifetime "premises in the declaration mentioned were allotted with other and after issue born; "real estate to the said Grace Galloway, and the said Joseph Gal- but the "loway in right of the said Grace took the exclusive possession wife's estate "thereof under the said allotment on the 24th of December, ed from the is discharg"A. D. 1773. The said Joseph Galloway afterwards by act of curtesy. "Assembly passed on the 6th of March 1778 was required to "surrender himself under pain of being attainted of high trea"son. The said Joseph Galloway did not surrender himself mitted in 1799. Lessee of accordingly, and thereupon became and stood attainted of high treason to all intents and purposes and his estate for"feited to the commonwealth, the said Grace Galloway being in PEMBER-"full life. The said premises were afterwards seized and sold ΤΟΝ V. HICKS. by the agents for forfeited estates, and the same conveyed to "those under whom the defendants hold, by the common"wealth. The said Joseph Galloway so being attainted depart"ed out of the United States into parts beyond sea and there (6 continues in full life. The said Grace Galloway continued in "the United States, and afterwards, to wit on the 6th February (c 1782, died seised in fee simple of the premises in the declara"tion mentioned, having first, to wit on the 20th of December "1781, duly made and published her last will in writing where"by she devised the same to Owen Jones and others, the sur"vivors of whom are the lessors of the plaintiff. The plaintiff "entered and was ousted by the defendant. Upon these facts the "question submitted to the court is whether the law be with the plaintiff. If it is, judgment to be entered for him with six Co pence damages and six pence costs; if it is not, judgment to "be entered for the defendant." દ The point to which the arguments were directed, was whether Joseph Galloway, who was tenant by the curtesy initiate of the premises, had such an estate therein as was forfeited to the commonwealth upon his attainder by act of Assembly passed the 6th March 1778; the 5th section of which is as follows: "All and every the lands, tenements, hereditaments, debts or "sums of money, or goods or chattels whatsoever, and gene"rally the estates real and personal of what nature or kind "soever they be, within this state, whereof the aforesaid Joseph "Galloway &c. shall have been possessed of, interested in, or en"titled unto, on the 4th day of July 1776, or at any time after"wards in their own right or to their use, or which any other person or persons shall have been possessed of interested in ❝or entitled unto to the use of or in trust for them or any of "them, shall according to the respective estates and interests " which the persons aforesaid or any in trust for them or any "of them shall have had therein, stand and be forfeited to this "state." 1 St. Laws 752. The case therefore embraced not only the proposition whether upon general principles an estate of tehant by the curtesy initiate is forfeited to the commonwealth by 1799. Lessee of an attainder for treason, but also whether it was not made forfeitable even against general principles, by this act of assembly. At March term 1798 it was argued before all the judges by E. Tilghman for the plaintiff, and by Dallas for the defendant; PEMBERand again at December term 1798 by Lewis for the plaintiff, TON and by Ingersoll for the defendant. For the plaintiff. A consideration of the case under three points of view will present the main question in such a manner as to shew clearly that the law is with the plaintiff. 1. What was Galloway's estate before issue? 2. What was it after issue? 3. How does the forfeiture operate after issue? 1. By the marriage the husband becomes seised in right of his wife of her inheritance, and is entitled to the rents and profits during coverture, to his own use. This is an unconditional consummate right vested in him eo instanti of the marriage, and upon his attainder the king shall take the rents and profits as forfeited during the coverture. 1 H. H. P. C. 251. 253. But the marriage itself does not give the husband a freehold, nor can he declare in covenant that he is seised in his demesne as of freehold in right of his wife; he must declare on a seisin in fee in himself and his wife in right of his wife, otherwise it is bad. Polyblank v. Hawkins. (a) The fee and the frank tenement therefore remain in the wife undivested by the marriage, and neither of them is forfeited by the attainder of the husband. Co. Litt. 351. 2. Upon the birth of issue a new consideration in law takes place; and in as much as by the law of nature he is bound to support this issue, the law of England gives him a title to have an estate for his life in the inheritance of his wife if he shall survive her. The estate however is not actually imparted to him; it is both eventual and conditional; and the freehold is not taken from the wife and vested in the husband unless and until he shall happen to survive her. He has a title, but no estate. A title is the means or cause by which a man has the just possession of his property. 2 Bl. Com. 195. A man is entitled to the estate by feoffment, but he has no estate before livery. He has also a title to take an estate upon a condition precedent, but he has neither the estate nor the right to the land until the condi (a) Doug. 315. v. HICKS. |