the ,date theywendevied upon by' themal'8hal,' and, not done so to your satisfaction, you should fin.d for the has .referepooto the saleo!. tbegoods to Mc.Alester,whioh WIlS .rescinded in tOto. long before the assignment was made or thtNI;ttachment(is8ued. Mc.Alesterhad possession of the goods oneUlly.uD1ier, that, sale., and then tllansferred them back to Rooks, who continuBd t(}.ae11 and pay debts(tut of, them .until the deed of assignment·was dellivered to.theassignee, from; whom theyw.el'e subsequently takell,Dy'the! marshal. The instructiolbftSSerts, in effect, that if there was any diminution· in. the amount or value .oftheg()ods between the time they were sold to McAlester, in February, and the 5th day of MarchI: when they were ,attached, iliehurdenwas ,00 the intervener to account for the diminution, and that, if. he Jailed to do so, his title under the deed of assignment was void.· No such burden rested upon the intervener·. Theintervenellis only required to account for the goods he received. He is notlrequired to :show, under penalty of a forfeiture of his under the assignnlent, what disposition the goods the assignment was. made, or to explain any diminution in the amount of thegoQds before they came into his possession as. trustee under the deed. If there was any considerable diminutton: ifl<' the amount: of the goods between the dates mentioned, it might,b!l.VE' heen a circUMstance to support the truth of the affidadt f9r'attachment .. · .But, in the .form in which it was asked, it was rightly,'refused, and cannot be made a ground of exception upon either We'bave looked very carefully through the record in this case, and see no error of which the plaintiffs can jusH)' complain. 1'he assignoraeemsto havedooe no more than to have exercised his undoubted right at common law to .appropriate· his property to the payment of some of his creditors to the· exclusion of others. This right he could exercise befot1ehe made the assignment, as he did to some extent, and he could also exercise it by making an assignment giving prelerllnces, as \V&IS done. J udgmentaffirmed.
court, D. Marvwnd. May 16, 18l12.)
'l'he pl'ovisl0!1s of the Maryland Code, art. 84, giving to the owner of an:y shore oftbe;tJhellapeake bay andits tributaries, upon whose land logs are cast by wlDd and tide. a Uen upon the of 25 cents for each log, and fOJ;biddil\g the owne.r of the logs from them .without paymeut, ,held to be vtYid and constitutional leglalation Within the properelrerciseoftbe police power of the state. HeLd, tbat tbe atateleglslat.ion w;as not an unconstitutiQo,al and arbitl1lry witb pri. vate rlg/lts; ·tbat It was not an attempt to regulate comm .and that It did not depriVllthe'owner of the logs of his property without due process of
LA.W-PQLIOIll POWER-DIUFTIlID LOGs..
At I.Jaw. Overruled.
Action of replevin. Heard on demurrer to the special plea.
Morrison, MunniJehuysetl. & Bond,for plaintiffs·. H. Arthur Stwmp, for defendant.
MORRIS, District Judge. This iss replevin suit instituted by the plaintiffs, Henxy & Strong, citizens of Pennsylvania, to recover about 8,000 logs from the possession of the defendant,Roberts, a citizen of Maryland, the logs being upon defendant's island, called "Roberts' Island," in the Susquehanna civer, in Harford .county, Md., and appraised at $5,706. The defendant has fHed s special plea; in which he sets up that in June, 1889, the logs in controversy were cast by wind and tidetipoli the said island, and·remained until November .they were taken away by the plaintiffs under the writ of replevin in this case; that by the Maryland acts of 1870 and 1872, and Maryland Code, art. 84, the defendant, at the time of the taking· under the writ of I'E'plevin, had a lien on the logs to secure compliance with the terms of said acts,and hads right to the possession thereof. The Maryland act of 1870,0. 229, was entitled" Ani act for the proteetion of the owners of land bordering upon the Chesapeake bay and its tributaries;" and the act of 1872, c. 258, was entitl,ed "An act for the better protection of landowners bordering on the Chesapeake bay and its tributaries." They have been codified in the Maryland Code as parts of article 34, which treats of· estrays, vessels adrift, and drift logs. The pertinent sections are as follows: "Sec. 12. All persons claiming logs cast by wind and tide upon any shore bordering upon the Ohesappake lIay and its tributarips are hpreby prohibited from removing the same witlwut the payment to the owner of the said shore the sum of for each log so removed. Sec. 13. The owner of any shore upon which logs are so cast may advertise such logs by one insertion each week for three successive weeks in some newspaper published in the state of Maryland. of a pulllic noticecalling upon the owner of said loge to remove them after the paympntof twenty-five cents fur eacb log so removed, and the cost of saidadvettiselllellt in addition therewith. Sec. 14. If the said logs are not removed after such publication, the own!'r of any shore may seU such logs to the lJidderby· giving notice of his intention so to do by an additional advertjsement for, three successive weeks 8S a.foresaid, mentioning the time and pl&Ce of sale. 8ec.. 15. Any owner of a Shore, so selling, be responsible for the excess of such sale over the sum of twenty-five centll for each log sold and the cost of the advertisement and sale. t:lec. 16. Nothing herein contained shall1'le construed to deny to the owner of any shore right to an additIonal compt'DsatiQTl for special damages, such 81:1 the destructio ll of.feoctl!i, the lodging ofJogs upon cultivated fields, or other similar inj1lries." Other provisions ·of the law enact penalties against anyone removing logs without complying with the· foregoing provisiolls and for willfully marking such logs, and that any judgment against the landowner for such logs shall be llulland void, unless the claimant has actually paid the landowner theprllscr.ibed 25 cents for each log. The plaintiffs have demurredto the defendant's special plea, and urge in support of their denlurrerthattheMaryland act is unconstitutional and void (1) because it
is aQ lcnoonstitlltiollaland iu:Mtrary interference with private rights; (2) because it is an attempt by the state to regulate commerce; (3) because it authorizes the taking of private property without due process of law. The authority of the state to legislate upon this subject is based upon its supposed right to enact regulations with regard to property cast upon tbe.lands bordering upon the navigable waters of the state. The right to regulate highways, both the natural waterways and rivers, as well IlS roads, isarecognized and,cQmprehensive branch of state sovereignty, ,usually. classed as a part of the police power. Wharves and ferries, lind, .thecharges for the use of them, the building of dams and other On navigable streams, the manner in which logs and rafts shallb:e floated and guarded, the preservation of the shores, the construction of embankments and levees, are all .subjects of regulation by state, ;legislation under its poHoe power. Hartigan v. Lumber 00., 129 Mass. 580; Scott v. Willson, 3 N. H. 321; Sherlock v. Alling, 93 U. S. 99; Oraig v.KliM, 65 Pa. St. 399.. It is true that navigable rivers are publie highways, but the right which the public has is a right of passage, and ,not Qf,using the adjoining land as a place: for depositing property or,storing logs. littlefield v.Maxwell, 31 Me. 134; State v. Wilson, 42 Me. 9., Under such circumstances as give rise to the present controversy .the land is made use' of by the owner of the logs necessarily without .previous consent or agreement, and such use is likely to lead to dis;pute allddisorder unless regulated by statute. Such regulation would seem to be a very salutary exercise of the state police power. In other ,states laws upon this. subject have been enacted. In Maine and in PennsylvaQia it has been enacted that logs lodged upon littoral lands the land. Although not stated in the shall be forfeited pleadings} it was conceded in argument that logs in controversy had river, in and had been carried been ;I>y.a: 0l1 tof into Maryland, .and, it is contended by ,the .that the in so far as. itaffects property trans,ported from atl adjoinipgstute, ie an attempt toregulate interstate com,merce. If it be conceded that the facts of the case bring the subject within the principles a,pplitlable to interstate commerce, yet reasonable regulations vvithregard,:.to the charges for the use,of the property within Ithe useaiq cOPnectioll with interstate commerce, have to be matter confided exclusively to congress 'not by the federal constitution. Packet Co. v. Catlettsburg, 105 U. S. 559; Packet 00. v. Keokuk,95U. S.80. In, MU'1ln v. illinoiS, 94 U. S. 113, a state law Was upheld which regulated the warehouse charges on grain brought into Illinois in the course of interstate commerce; and so in the present ease, even be true that such commerce may be indirectly affected, it would seem that the state may validly regulate the charges to be allowed for the. use of land bordering' upon its navigable waters in ,the absence of private agreement. It was also held in Munn v. Illinois that if under any state of facts which might real:lonably be supposed to existihe legislation w.ould be justified, it was fair to presume that such .facts, did eX:i;Jt when the; .state enacted the remedial statute, and in th-
IfENRY V. ROBERTS.
present case, it being, as I think, within the police power of the state to fix a reasonable compensation for the useof littoral lands by logs cast up on the shores,.it must be presumed that LheactulJ:l condition of things required the passing of the law. Indeed, itis common experience that, whenever parties are compelled by necessiiy to come under obligations to each other without opportunity for previous agreement, the legislative power is obliged to regulate the compensation which may be exacted in order to prevent extortion and abuse. The last ground of demurrer is based upon the contention that the Maryland act BU bjects the owner of the logs to the deprivation of. his property without due process of law. The objection is taken that the proceedings prescribed by the statute to enable the landowrierto sell the logs'for the payment of the charges, a.fter notice by publication, without any judicial determination of the amount payable, fails to amount to due process. .It seems to me that in present case it is not necessary to consider this question. If the state has a right to regulate the charges\ it has a, right to enact that the landowner upon whose land the logs have been cast shall have a lien on them for the prescribed charge, and that he may retain possession until the amount is paid. This is all that is enacted by the first section of the statute. The right to hold possession of a chattel until a charge which is a lien upon itJs paid isa most mon legal right. What proceedings td enforce such a lien resulting in a sale are sufficient to passn good title, and to deprive the 0':Vner of his property by due process of law, is a separate question. In the present case the defendant has <;lone nothing, so far as appears, to enforce his lien. The logs remained in his possession upon his land from June to November, when the plaintiffs, refusipg to pay the charges, took theiti under this replevin. There has been no attempt to deprive the owner of his property in the logs, and objection to the statutol'y proceedings for a sale are not proper to be considered in this case. Another suggestion under this head is that the compensation of 25 cents for each log is such an l1'!\reasonably excessive exaction, and that in some cases it would amount to depriving the owner of his property; To this it is sufficient reply that nothing appears in this case tending to show it to be a fact, and every presumption is in favor of the reason· ableness of the legislative enactment. The demurrer is overruled.
' . ".. ;,
trial judge 10r,iguatuN 811ft limed
... '.DB:iU.L CQuBT-si;,l.TB PB;,l.OTICB-RBVpr" BY CIRCUIT. CoURT 01' ,.\PPII.U& . The practice alid rules of the state courts do not apply te proceedings taken ill '" libe.olrcuit 'couN of th8 Unl1led States,for \he purpose of revie;w in the circuit. ooun
counsel, buta paper was tiled entitled a" Bill of Exceptlons..", Held. that a certiJicaw olt11e trial a1.tbe exception.!!et out in the of errora, ceJ.led tbe 'Bill-of ExceptioIls,' "were dUll. taken at tbe trial-and note4 by bim Oil the minutes;· and reduced to :writing .. tti8&8signment of errara,and allowed b7 .'" h,tmi . ,
'lnl1:n-or to the of the. United States for the District of .., . .',; . . ',., '. \ \ by J. L. McG!36,,,nd W. R. Dillingham the Richmond Dan'ille to recover for the Joss of live stock through defendant's .....L8J common carrier. Judgment for plaintifi'8. brings ·.·..I\.ffir.med. . , for plaintiff in en-or· . in . Befqre'/Ftl'LLP:R, Circuit and B9ND and GOFF, Circuit Judges.
Circuit Justige. This case was tried to a jury at the August of. the circujt court of the.United States. for the district of Sou*h Carolina,at Greemriile, and a verdict returned -in favor of plaintiffs bEllow, defendants iJl4'lrror August 7, August 8th a motion for new trial was¥lllde,whiCh. ,was 15th, and on notice ,of ",n:!Joppeal an appeal allowed, and the amounto( BUpe'I'Bedea8 bOQ<l was fixed.,iQe bond was. approved September ·Septer,nb,ljlr: 17 , 1891, jUdgment and execution were filed. The qeing .at law, am!,not open to a writ of error was taken 1891, andQn the day there was filed a . '1 Bil-to! ,Excl1ptions," signed by counsel for defendant below. The certificate of the clerk to the transcript is to the effect that "the foregoing is a true and correct copy of the records, proceedings, and of the verdict in the case of McGee « Dillingham, Plaintiffs, against the Richmond« Danville Railroad Company, Defendant, rendered as aforesaid, together with all the proceedings had in the cause relating to the same." No bill of exceptions, signed by the trial judge, appears in the record. The August term expired during that month, and no order was entered extending the time within which such bill might be prepared and filed, nor was there any consent of counsel giving further time for that purpose. When the case came on for argument in this court, February 3, 1892, the attention of counsel was called to the fact that there was no bill of exceptions. and argument was sus