On the trial a verdict was rendered for the plaintiffs, subject to the opinion of the Court on the points reserved. The reserved questions were argued by C. Shaler & Co. for plaintiffs, and by A. W. Loomis for defendant.

The opinion of the Court was delivered by

:

HAMPTON, P. J.-The first question reserved is as follows, viz. under the terms of the deed from Thomas Hoey to John Hoey and his children, do the children of John Hoey take as tenants in common with their father? Under the authority of Shirlock v. Shirlock, 5 Barr 367, as well as other cases that might be cited, I am of opinion that John Hoey and his children, under the terms of the deed, took an estate in fee simple as tenants in common. But the grant was limited to the children then in esse and their heirs, and, consequently, Mary Hoey and Ann Hoey, who were born after the execution of the deed, took no estate under it. This disposes of the first and second questions reserved.

Third, Sophia Hoey (now Green) was born December 9th, 1816. She would, therefore, arrive at her majority the 9th day of December, 1837. The deed was dated the 7th of April, 1828. The ten years allowed by the Act of Assembly for her to bring suit ran out in 1847, and the full twenty-one years, from the date of the deed in 1849. Whether she was married before or after she became of age, makes no difference, as it is well settled that the accruing disability of coverture cannot be tacked or added to that of infancy in order to prevent the operation of the Statute of Limitations. Nor will the fact of her having brought an action of ejectment in 1845, and voluntarily taking a non-suit, save her from its bar. It follows, therefore, that, as this present suit was not brought till 1843, she cannot recover.

Susanna Hoey (now Russel) was born the 19th of September, 1823, and became of full age in September, 1844. The subsequent period of ten years allowed by the statute would not expire until 1854, and consequently her right was not barred by the statute at the commencement of this suit. She and her husband are, therefore, entitled to recover the one undivided seventh part of the land in dispute.

The prothonotary is directed to modify the verdict as follows, viz.: We find for the plaintiffs, James Russell and Susanna his wife, one undivided seventh part of the land described in the writ of ejectment, with six cents damages and six cents costs. And as to the residue of the land claimed by the plaintiff, we find for the defendants; and the Prothonotary is further directed, on payment of the verdict fee, to enter judgment on the verdict.

In the Common Pleas of Westmoreland County.

STRICKLER v. HOUGH.

(Vol. III., p. 93, 1855.)

One who is pursuing worldly business on the Lord's Day, commonly called Sunday, by running a boat on a navigable stream, may, nevertheless, recover damages for an injury occasioned on that day to the boat by an obstruction to navigation.

CHARGE to the jury by

AGNEW, P. J.-This action is to recover damages for the loss of a boat and cargo of coke sunk in the Youghiogheny, in consequence of striking upon an obstruction alleged to be placed in the river by the defendant.

A defence set up, is that the boat was then employed in navigating the river on Sunday.

The fact that the boat was descending the river on Sunday at the time of injury and loss, is no bar to the plaintiff's recovery, if otherwise entitled.

The facts, so far as they raise this point, are these: The plaintiff was the owner of a large flat boat, and coke amounting to between seven and eight thousand bushels. He was engaged in making and selling coke. He made it up the Youghiogheny, and sold it down the Ohio at Cincinnati, &c. The boat was laden as early as July, 1850, and lay afloat until December, 1850, awaiting a freshet to go out, the ordinary stage of the stream being too low to admit of boats of this size descending. A high

freshet took place on Saturday in the first or second week of December, and the boat commenced her trip on the next Sunday. When she came to the chute at the defendant's dam, she struck a sunken object, alleged to be a timber and board fish-basket, placed there by the defendant, sprang a bad leak, which could not be kept down, and sank a mile or two below. The plaintiff gave evidence showing that on Saturday the flood was at its height, and the boat could not be safely navigated, the stream being too wild to admit of managing such craft; that on Monday following the water was too low to enable the boat to descend, and consequently she could go out only on Sunday. The defendant gave evidence tending to prove that such a boat might have descended on Monday morning.

We should content ourselves with the simple instruction given to the jury, but a different opinion given in an adjoining county, by the president of this district, for whose eminent legal attainments we have the most profound respect, seems to require the reasons which have led us to our conclusion. In a charge written upon the bench, in the progress of argument, we cannot hope to do this very satisfactorily.

We deem it the duty of courts so to administer the law as to promote the cause of good morals and religion. We, therefore, hailed with pleasure, the decision of the Pittsburgh Omnibus cases. On the other hand, an object so worthy, cannot be attained by over-stepping the limits of law, and inflicting penalties not provided by it. Many offences against morality are not punished by municipal law. Human codes are too imperfect to be made to reach the whole circle of the divine commandments. Human laws, necessarily, must leave many acts to divine retribution.

The question here is not how far the consequences of a violation of a divine command recoil, but how far its civil extend. As punishment, the penalty inflicted satisfies the statutes, and a forfeiture of boat and cargo cannot be superadded. Is it in the power of the judiciary to throw this loss upon the owner when caused by the wrongful act of another, in which he has not the remotest participation?

To determine this we must analyze the acts and relations of the

parties, strip the case of seeming analogies, and present it in its true aspect.

First-it is not like the case of a contract, unlawful because made on Sunday, where the parties are its mutual authors. Without a contract there can be no injury, and without a mutual act there can be no contract. Being in pari delicto, neither can re

cover.

It is not the case of a mutual fault, where each in part is the author of the act which causes the injury, such as in collisions of vessels.

It is not the case of a criminal consequence, where it takes its hue from the criminal character of the act which directly causes it, such as homicide in consequence of shooting at fowls, intending to steal them.

It is not the case of a direct infliction of a penalty provided for a penal act; but is an additional loss cast upon the owner by forfeiture of his right of action against one who has done him an absolute injury, for which he would otherwise be entitled to redress.

The opposite conclusion is founded on the postulate that Christianity is part of the law of Pennsylvania, a fact true in one sense, but not in that which benefits the argument. While it regards its principles, and protects its institutions, that the conscience, morals and happiness of the people may not be violated or endangered, it has not adopted it as the rule of all civil conduct. If it did, the government would be a theocracy, prohibiting and punishing directly envy, jealousy, anger, hatred, hypocrisy, and all kinds of wickedness forbidden by divine law. If true in a general sense, it would be difficult to perceive why the Sabbath traveller should escape punishment, and injuries to his person be redressed, while his carrier for hire should suffer the penalty and wrongs be remediless.

It is only where infractions of its precepts are made the foundation of alleged right, or the cause of injury, that law, following the order of morals, declares the immorality shall be no legal ground of right or of remedy. But if the right or the injury arise independently of this, requiring no substructure of wickedness to support it, no penalty or consequence can be inflicted

VOL. 1.-16

because of the unconnected offence, though it happens to accompany it. Were it otherwise the civil rights and remedies of men would always be made to depend on their moral conduct at and about the time of the inception of right, or occurrence of injury. The principle would extend its arms so wide, it would embrace the case of one who employed his hands and freighted his boat on Sunday, though he began his trip and suffered his injury on Monday; or a carrier whose boat is lost on any day, because he had robbed or cheated his passengers on their voyage. It would surely be a startling annunciation of principle that whenever one is engaged in an act not unlawful per se, but accompanied by some act or incident that is, he has no redress for wrongs arising independently of the unlawful act or incident, and not caused by it.

Our case then is this: The injury arose from the sole act of the defendant, an obstruction to the navigation, unlawful at all times and seasons, and unmitigated by any fault in the plaintiff uniting in the production of the injury; not that the plaintiff was without fault in his breach of the Sabbath, but that he was in none which united in the causation of the injury. It is true if the plaintiff had not navigated the stream, the injury would not have happened; but it happened not because he navigated on Sunday, but because he navigated at all. No logical consequence follows from the time of navigation to the injury happening. As to the time the injury is post hoc, non propter hoc.

The obstruction was unmitigated wrong, unlawful on all daysSundays and Saturdays. The plaintiff's right was to navigate the stream free of all obstructions, a general right, the lawfulness of which it lay not with the defendant to determine at a particular time. Having at no time a right to create a nuisance, he could not erect it on Sunday, and say to the navigator his passage on that day could be justified by no necessity or accident which may have driven him upon the stream. Having done an unlawful act, dangerous alike to the faulty and the faultless, he cannot resort to an inquisition of the motive which placed the navigator upon the stream, to protect himself from redress. Let Sunday navigation be right or wrong, the time is not the cause of injury,