The case was submitted to the Court, and the facts, as agreed and understood by the parties, were briefly these:

On the 28th of April, 1836, Miller conveyed to Tuite, in fee simple, a lot in the city of Cincinnati, and in the deed covenanted that he was the "lawful owner of the premises, and had good right so to sell and convey the same;" and also that he would "warrant and defend the same against all persons whomsoever."

Elizabeth Satterthwaite filed her bill in the Common Pleas, setting up a right of dower on the lot, prior to the date of Miller's deed, and at November term, 1838, obtained a decree of the Court, establishing her right. And it being ascertained that the dower could not be assigned to her by metes and bounds, a valuation was returned, and the Court finally decreed that Tuite pay her $62 38 for her dower up to that time, and pay the further sum of $66 a year thereafter, during her natural life, payable half yearly, in May and November. This was made a charge upon the lot, and in default of payment of any part of it, the Sheriff was ordered to sell so much of the lot as should be necessary to raise the sum due. An order issued, and the first sum due was paid to the Sheriff, with costs, (amount $87 86,) without levy or sale. Tuite paid the other instalments as they fell due, without further order.

The case, after having been argued several times before the Supreme Court in the county, and in Bank, was again heard at this term.

GHOLSON & MINER, for Plaintiff.

A. N. RIDDLE, for Defendant.

HITCHCOCK, J., delivered the opinion of the Court.— There was no doubt, he said, but that the claim of dower was covered by the covenant of general warranty contained in the deed. The doubt in the case had been whether the facts showed a sufficient eviction to enable the plaintiff to maintain the action.

There must, he said, be an eviction or something equivalent. The regular mode of assigning dower was by metes and bounds, and putting the widow into possession of the part so assigned. Had this been done, it would, without doubt, have been an actual eviction.

The statute provided that when dower could not be conveniently assigned by metes and bounds, it might be assigned in a special manner, as of a third part of the rents, issues, and profits. The manner of assignment, then, was in the discretion of the Court; and any special mode adopted by the Court should be considered as equivalent to the regular mode, and substantially an eviction.

The recovery of the plaintiff was not to be limited to the amounts he had actually paid under the order of the Court, but he was entitled in addition, to the value of the incumbrance, to be calculated according to the tables of annuities, not exceeding one-third of the consideration money and interest since the eviction. And judgment was rendered accordingly for the plaintiff.-5 West. L. J.

413.

Supreme Court Judges in Iowa.-The Governor of Iowa has appointed the Hon. S. C. Hastings, of Bloomington, Chief Justice, the Hon. J. F. Kinney, of West Point, and formerly of Ohio, and George Green, Esq., of Dubuque, Associate Justices.-Western Law Journal for June.

An important opinion delivered by Hon. A. V. Parsons, reversing a summary conviction by a magistrate, for disturbing a religious meeting, was received too late for the present number.

An able article relative to the decisions upon the statute of limitations will appear in our next.

Supreme Court of Pennsylvania.

MIDDLE DISTRICT.

JOHN CLELLANDS, ET AL. v. THE COMMONWEALTH OF PENNSYLVANIA.

1. Where persons are convicted of a riot, although accompanied with the aggravation of riotously rescuing a fugitive slave from his master, it is illegal to sentence them to the Penitentiary.

2. The legitimate imprisonment for such offence is in the county jail. But upon the reversal of the sentence of the court below the Supreme Court, if it deem the illegal imprisonment in the Penitentiary from the time of sentence to the period of reversal a sufficient punishment for the offence, will not sentence the prisoners de novo, or remit the record to the court below for the purpose, but will discharge them.

June 5, 1848, BURNSIDE, J.

dicted and convicted of a riot.

The pltffs. in error were in

The first count in the in

dictment, is in the usual form. In the second, the riot was laid in rescuing certain fugitives from labor from the state of Maryland, from their masters.

There is no doubt but

On being found guilty

it was an aggravated case of riot. they were sentenced to pay a fine of one dollar each, and undergo imprisonment for three years in the Eastern Penitentiary, by separate and solitary confinement at labor.

The error assigned, is, in sending the prisoners to the Eastern Penitentiary. Whether the laws of Pennsylvania authorize this is the question before us.

The Attorney General justifies the sentence under the Act of 1705 (Dunlop 16, 1 Smith L. 30) which provides, that if any persons to the number of three or more shall meet together with clubs, staves, or any other hurtful weapons, to the terror of any of the peaceable people or

*This count is given at length in Lewis' Criminal Law 683.

inhabitants of this province, and shall commit, or design to commit, violence or injury upon the persons or goods of any of the said inhabitants, and shall be convicted thereof, such persons shall be reputed and punished as rioters according to the Laws of England; and such act of terror or violence, or design of violence shall be deemed and accounted a riot: and the 4th sec. of the Act of the 5th of April 1790 (Dunlop 125, 2 Smith 531) which provides, that any person convicted of any offence not capital for which by the Laws (of this state) in force before the Act was passed, burning in the hand, cutting off the ears, nailing the ear or ears to the pillory, placing in and upon the pillory, whipping or imprisonment for life is, or may be inflicted, shall, instead of such parts of the punishment, be fined and sentenced to undergo a servitude at hard labor not exceeding two years: and the supplement to the Act of 1790 (Dunlop 194, 4 Smith 393) invests the courts with power to sentence in such cases for any period not exceeding seven years in their discretion.

This leads us to inquire what was the law of England on this subject in 1705, and how far their statutory punishments were introduced into Pennsylvania.

Dalton, who is a writer of authority (page 203) informs us that at Common Law a riot was punishable as a trespass, and as well the fine as the imprisonment was at the discretion of the judges; and in the same manner the statute 13th Henry 4 enables justices of the peace to punish such offenders. But the imprisonment and the fine of such offenders were to be increased by the stat. 2nd Henry 5 C. 8. and therefrom when they are remiss herein (scilicet) in not sufficiently punishing such offenders by due fine and imprisonment, the Lords of the Star Chamber often assessed upon rioters for the same riot a greater penalty.

The Star Chamber, which was ordained by the 5 Hen. 1 ch. 1 and the 21st Henry 8 C. 2, and which was abolish

ed by the 16 Charles 1st ch. 10, was vested with special powers to punish riots, routs and such other misdemeanours as were not sufficiently provided for by the Common Law, and for which the inferior judges were not so proper to give corrrection. In Hawk. P. C. chap. 68, S. 12, we tind that formerly, in cases of great enormity, offenders were punished with pillory, but such punishment is now taken away by the 36 Geo. 3d ch. 138.

No English statute on the subject of riots was, it is believed, ever adopted in this province. The 2d Henry 5 ch. 8 authorized the punishment of rioters according to the discretion of the King and his council. 1 Stat. at large 496. The province of Pennsylvania adopted the English Common Law, which was punishment by fine and imprisonment in the county jail, and our sessions occasionally ordered violent men to give security for good behaviour.

It is believed that the pillory was seldom if ever used in this state except when directed by the Legislature of the province. No English statute on the subject of riots was ever adopted by the province. Shortly after the year 1790 all acquainted with the history of Pennsylvania know that in many parts of the Commonwealth violent riots were common. The western insurrection produced liberty poles, and violent riots were the consequences in severel counties, and at some death ensued; yet we are not aware that any judge at that day thought he had power to send a convicted rioter to the penitentiary. When I came to the bar, there were old and experienced judges on the bench, and aged lawyers in practice, but I have never witnessed or heard of any person convicted of a riot, being sent to the Penitentiary.

In Robb v. the Commonwealth, Mr. Justice Duncan, whose experience in the criminal jurispudence of the country was more extensive than that of any man of his day, tells us that a sentence which adjudged the convict to