Second. That it is at least questionable whether he is bound in any case (except of course, that of his own sale,) to resort to the fund, but may distrain upon the land after the sale, for the arrears due before.1

Third. If the deed contains no clause of re-entry, and the land is not otherwise expressly subjected to the payment of the rent, and there is a sale under the judgment of a stranger, the owner of the rent can neither resort to the fund, nor the land in the purchaser's hands, but may distrain.

Fourth. If there be no clause of re-entry in the deed, and the land is sold under a judgment in covenant for arrears, the plaintiff would not be entitled to any preference over those whose liens were prior to his judgment. But,

Fifth. If there is a clause of re-entry, the lien of the owner of the rent relates back to the creation of the rent, taking precedence of all subsequent liens, and this whether the sale be under his own judgment, or that of a stranger.

Sixth. If there be a clause of re-entry to hold until all arrearages are paid, and not as of the grantor's former estate, the owner of the rent is entitled to the principal of the arrearages, but not to the interest, and this whether the sale is under his own judgment for arrears, or upon that of a stranger.

Seventh. If there be a clause of re-entry to hold as of the grantor's former estate, (or "the usual covenants on the part of the grantee,") and the sale is under a judgment in covenant for arrears, the owner of the rent is entitled to the principal of the arrears with interest from the time each payment became due. And,

Eighth. In no case of distress, or resort to the fund, where the sale has been under the judgment of a stranger, can the owner of the rent receive more than the principal of the arrears-the precise sum due without interest. For we regard Dougherty's Estate, as to interest, to be an oversight, or at any rate, overruled by the subsequent case of Ter-Hoven vs. Kerns.

This we submit to be the result of the authorities, unless TerHoven vs. Kerns is to be taken as deciding that in all cases of a

1 See 2 Penn. Law Jour. 359.

sale by a stranger, without regard to the covenants in the deed, the principal of the arrearages are payable out of the fund; and that interest is not recoverable at all, even in an action for arrears. As to the latter point, the Court say "that the owner of the rent is entitled to have the principal of the rent out of the moneys arising from the sheriff's sale, was settled in the case of Bantleon vs. Smith, but not to the interest thereon. This rule has been uni

formly observed and adhered to ever since." Now, Bantleon vs. Smith was an action of covenant for arrears, and the Court in TerHoven vs. Kerns, citing the case for so general a proposition, in a cause where the covenants of the deed are not even alluded to, might seem to imply that it was intended to announce a general rule, applicable to all cases. But the Court, in Bantleon vs. Smith, expressly disclaim any intention of laying down any general rule, and explicitly stating that the case was decided upon the covenants of the particular deed in that case, say that the question as to interest is open for discussion when it shall arise under different covenants. We apprehend, therefore, that Ter-Hoven vs. Kerns must be confined to the particular circumstances of that case-a fund raised by a sale under the judgment of a stranger, and probably nothing unusual in the covenants of the deed.

Upon the principle of the cases we have been considering, we do not so readily perceive why interest is allowed upon arrears of rent in an action of covenant, and not so when paid from the fund raised by a sale under the judgment of a stranger.

Bantleon vs. Smith, as we have just seen, was covenant for arrears, and the party was held not entitled to interest because the right of entry was limited to holding only until arrearges were paid; the Court intimating that if the deed had given the right to enter and hold as of the grantor's former estate, he might have been entitled to interest also. Buck vs. Fisher was also an action of covenant for arrears; and the deed contained the "usual covenants of the grantee," among them, of course, the right to re-enter and hold as of the grantor's former estate. It is a fair inference, therefore, that interest was held to be recoverable in the latter case by virtue of this right to re-enter. Such being the case, why should

the right of re-entry not have the same effect when the fund produced by a sale under the judgment of a stranger is resorted to? The right of re-entry per se has no direct bearing upon, or necessary connection with the action of covenant; but is a distinct and independent remedy for the recovery of the arrears of rent. The connection which does exist is altogether indirect, and brought about by the Courts themselves. And they bring it about, as we have seen, in this wise: upon re-entry for failure to pay the rent, the land is forfeit at law, and the owner must seek the aid of equity, which would relieve upon the terms of paying interest, as well as principal. Now, forfeitures are odious in the law; and the remedy by re-entry is an inconvenient one; therefore, the owner of the rent shall be encouraged not to adopt this remedy for the collection of his arrears, but when he resorts to the personal action of covenant, he shall be entitled to recover the arrearages with interest. Why does not the same argument apply where a resort is had to the proceeds of land converted into money under the judgment of a stranger? It is by virtue of this right of re-entry, and for the same reasons, that the Courts, in this case, hold the owner of the rent to be entitled to the principal of the arrearages; and why should he not as well be entitled to the interest? If he entered he could hold until paid the principal and interest, but, for the reasons given, he need not re-enter, but may come upon the fund. Why, then, should he not come upon it to reap all the advantages to be derived from re-entry? We perceive no reason for the distinction made.

The length to which this article has extended precludes us from doing more, in closing, than merely adverting to one or two other points connected with our subject.

A previous demand for arrears of ground rent is not necessary to the maintenance of an action of covenant against an assignee; nor is demand necessary before making a distress. Arrears due upon several lots of ground by the same person to the same plaintiff, may be recovered in one action, though the defendant has acquired title to the several lots from different persons, and at different times." * Ibid, 461.

Royer vs. Ake, 3 P. R. 461.

In the case of re-entry, as is well known, much particularity is required. To entitle the owner of the rent to enter, there must first be a demand of the precise rent due, on the very day on which it becomes due, and on the most notorious place on the land; and this although the land is vacant and unenclosed.1 Where a power of reentry is reserved for non-payment of rent, if sufficient distress should not be found on the premises, it is incumbent on the party entitled to the rent, who seeks to enforce this right by ejectment, to show that there was not sufficient property on the premises to pay the rent; if there be a forfeiture for not erecting buildings on the lot, under the stipulations of the deed, a receipt of rent after the time provided for the erection of the buildings, is a waiver of the forfeiture; and if there be no clause of re-entry in the deed, ejectment will not lie to enforce the payment of the rent.1

M.

In the Circuit Court of the United States.

DEVOE ET AL. vs. THE PENROSE FERRY BRIDGE COMPANY.

1. A Court of the United States has the power to prevent by injunction, the present or future erection of any bridge under the authority of one of the States, that by its construction will interfere with the navigation of a public stream upon which there is a commerce to any considerable extent with other States, though such stream lies wholly within the limits of the State. The question in such case is relative, whether the bridge be or be not a greater obstruction to commerce than benefit to the public.

2. In such case, unless irreparable damage would be done to the defendants thereby, and though an answer be put in denying both the fact and the law, an interlocutory injunction may be granted upon affidavits, at once, until further order; and an issue may be then directed to determine whether the bridge under its present form, &c., is a nuisance to the navigation of the river, and if so, whether any bridge can be constructed at the particular spot which will not be a nuisance.

This was an application to Mr. Justice Grier, for interlocutory injunctions in three cases, involving the same state of facts.

'McCormick vs. Connell, 6 S. & R. 151.
'Ibid, 51.

Newman vs. Rutter, 8 W. 51.

Kenege vs. Elliott, 9 W. 258.

The following opinion was delivered by him:

GRIER, J.-Three several bills have been filed against the Penrose Ferry Bridge Company, praying for injunctions to restrain them from erecting a bridge over the river Schuylkill. A motion for a special injunction has been made on the notice usual in each case. As they all involve the same questions with immaterial differences, we shall treat them as one case.

The complainants are citizens of other States, and owners, some of wharf property on the Schuylkill, others of coasting vessels, barges and canal boats trading from this port, on that river, to ports in other States.

The bills set forth that the river Schuylkill from its mouth to and beyond the port of Philadelphia is, and for a long time hath been, an ancient, navigable, public river and common highway, free to be used and navigated by all citizens of the United Statesthat the river has a good tide-water navigation for over six miles above its mouth to the port of Philadelphia, for ships and vessels drawing 18 or 20 feet-that many of said ships, steamboats, barges, &c., navigating said river, are duly enrolled and licensed at the port of Philadelphia, a port of entry within the District of Philadelphia, under and by virtue of the Act of Congress in that behalf made and provided:-That foreign vessels have been accustomed to navigate, and are entitled to navigate the said Schuylkill with cargoes, bound to the port of Philadelphia, and to discharge the same, &c.

That about a mile above the mouth of said river, the channel has been crossed heretofore by means of a ferry skiff or scow, which afforded ample convenience for the travel across the river without obstructing the navigation.

That the Penrose Ferry Bridge Company, a corporation created and established by authority of the State of Pennsylvania, and the other defendants, citizens of Pennsylvania, have collected materials, and are engaged in constructing and erecting a truss toll bridge over and across the channel of said river at the site of the ferry. That it is their intention to erect the bridge at an elevation of only six feet above the level of ordinary high water, and not over one or two feet above the level of the usual freshets in the river.