text:
    Cooper versus Bushley.
    1. Cooper in 1860 bought land at 'treasurer’s sale for taxes of Barber, and received a deed; it was not redeemed. In 1862 he bought the same land at treasurer’s sale for taxes and received a deed; this sale was redeemed by a former owner, and Cooper received the redemption-money. lie afterwards sold his interest to Bushley, gave him both deeds, and assigned the deed of 1862, but refused to assign that of 1860. Held, That reoeiving the redemption-money of 1862 did not estop him and his assignee from claiming under the deed of 1860.
    2. The redemption under the sale of 1862 did not affect Cooper’s title under the sale of 1860.
    3. Cooper being the owner of the lands under the sale of 1860, the sale of 1862 was the means of coercing his payment of taxes.
    4. By reason of the sale of 1860, the former owner, when he paid the redemption-money, had not any right in the land, and his payment was that of a stranger, and voluntary.
    5. A purchaser cannot hold that which he has obtained and ask a return of the price he has paid.
    October 21st 1872.
    Before Thompson, C. J., Read, Agnew, Shauswood and Williams, JJ.
    Error to the Court of Common Pleas of Erie county: No. 19, to October and November Term 1871.
    This was an action on the case brought September 10th 1867, by Charles IT. Bushley against Ezra Cooper.
    In his declaration the plaintiff complained that on the 9th of June 1862, the defendent purchased, at treasurer’s sale of unseated land, forty-five acres sold for taxes as the land of John Barber, and the treasurer made a deed of same date to the defendant, which, after acknowledgment in court, was delivered to the defendant; that on the 14th of April 1863, the land was redeemed by payment of the taxes, &c., whereby the treasurer’s sale was annulled, the defendant demanded and received from the treasurer the redemption-money, and the title thereupon reverted to Barber. But the defendant knowing that he had no title to the land, and with design to defraud the plaintiff, and claiming that he had a good title to the land, and asserting that there had been no redemption, and that the plaintiff without examining the records might rely upon his statement as true, for a valuable consideration paid by the plaintiff, assigned to plaintiff by endorsement “ on said deed,” his interest in the land and thereby defrauded him.
    On the trial, February 3d 1869, before Yincent, J., the plaintiff gave in evidence, deed dated June 9th 1862, from the treasurer of Erie county, to the defendant for the land mentioned in the declaration, with assignment February 1st 1864, endorsed “For a valuable consideration” to C. H. Bushley the plaintiff; also, from the sale-book of unseated land in Erie county, the redemption of the land April 14th 1862, by Hartshorn, a former owner, and receipt of the redemption-money December 12th 1863, by the defendant.
    There was evidence by John Clough that he had owned the land and had asked defendant to assign another deed which he had from the treasurer of the county, for a tax sale in 1860; witness told him the land had been redeemed, he said it had not. The witness reconveyed to plaintiff who had deeds both of 1860 and 1862, but an assignment was only on that of 1862. Witness received both deeds from plaintiff and returned them to him. The plaintiff gave evidence of the value of the lands. *
    The defendant gave in evidence tax sale of the land to himself June 14th 1860, as the property of John Barber, and that there had been no redemption. He gave evidence also by the justice before whom the acknowledgment of the assignment of the deed of 1862 was taken, that plaintiff and defendant were both before him; there were two tax deeds for the same land; there was a question raised whether there should not be an assignment of both deeds; the defendant thought as the plaintiff had both deeds, the one assignment took all the interest that defendant had in the land.
    In rebuttal, Clough testified that when plaintiff assigned to him, they talked of transferring deed of 1860, defendant thought it was not necessary to incur the expense of assigning the deed of 1860. Defendant afterwards refused to assign that deed. Witness did not know at the time of the acknowledgment that the land had been redeemed. Defendant wanted him to pay some taxes; witness could not pay them; thought it was not for him to pay.
    The court charged:—
    “When Cooper transferred the deed of June 9th 1862 he knew that the sale referred to by it had been redeemed, and that, so far as that sale was concerned, he had no title whatever, if you believe the evidence.
    “ He had another deed to himself for the same land, in pursuance of sale made in 1860, and this sale had not been redeemed.
    “ Cooper then had in 1864 all the title he could acquire by a treasurer’s deed.
    “ [It is alleged that at the time he assigned his interest in the land to the plaintiff he delivered both deeds to him, although the assignment was only endorsed on the deed of 1862, and it is for you to say whether it was understood by the parties that the assignment on the deed of 1862 transferred all the interest Cooper had in the land, or only that represented by the deed of 1862.]
    “Bushley transferred the deed of 1862 to Clough, and handed over both deeds in the same manner that he had received them from Cooper.
    “ In 1866, at the time of the acknowledgment of the assignment from Cooper to Bushley, and from Bushley to Clough, the question of the assignment of the deed of 1860 was mooted, and it was considered that it was not necessary to incur the expense. Cooper afterwards declined to assign the first deed, unless some taxes were paid, but denied then that the land had been redeemed.
    “ In making that assertion did Cooper refer to the sale of 1860, or the sale of 1862 ? This question you must answer from the testimony.
    “ Was Bushley deceived; that is, would he have refused to pay his money for the assignment he received had he known that the sale for which that deed was given had been redeemed, even though he knew of the sale of 1860, and that it was not redeemed ?
    “ Did he understand just how the matter stood as to the land he was buying, when he made the purchase, or did Cooper deceive him with an intent to cheat him ? Why did not Cooper transfer the deed of 1860 when asked to do so? Was it in avoidance of the effect of transferring the wrong deed, or was it with a design to defraud?
    “ [Without an assignment of the deed of 1860 it was no evidence of title to the land in the hands of the assignee, and it was Cooper’s duty to assign his interest under that deed, if he intended to transfer his interest under that deed to Bushley.]

      “ [We are in doubt as to how far the act of Cooper, in receiving the redemption-money of the sale of 1862, estopped him from claiming this land as against the owner before the tax sale, but for the purpose of this suit we charge you that he is estopped by that act, and that he had no interest, after that, in the land, and we therefore think that Bushley cannot hold the land as against Barber, the former owner.]
    “ [If Bushley is entitled to recover anything, we think he is entitled to recover the value of the land in the absence of any proof as to how much he paid. If he paid a specific sum, which you can ascertain from the evidence, that would be the measure of damage, together with such other sum for trouble and expense, other than attorney fees, caused by the deceit of the defendant.]
    “ [We are of the opinion that it was not necessary to tender back the deeds before bringing suit.]”
    The verdict was for the plaintiff for $450.
    The defendant took a writ of error, and assigned for error:
    1-5. The parts of the charge in brackets.
    6. The effect of the charge was a direction to the jury, that the plaintiff could keep the land and recover its value.

      W. Benson, for plaintiff in error.

      J. IT. Walker, for defendant in error.
    January 6th 1873,
   The opinion of the court was delivered, by

Agnew, J.

— Without referring in detail to the errors as assigned, we may say there are two errors in the charge of the court below necessary to be noticed. One was in submitting to the jury the finding of a material fact, on which the case in a great measure turned, without instructing them upon the bearing this fact was to have upon the verdict. The other was in holding that the receipt of Cooper of the redemption-money under the treasurer’s sale of 1862, estopped him and his assignee from claiming title under the treasurer’s sale of 1860. The action was in case, and the declaration set forth the fraudulent concealment by Cooper of the redemption of the sale of 1862, as the gist of the action. Rescission of the purchase on the ground of fraud in the sale, was clearly the basis of the suit for which the plaintiff claimed his damages. Had there been no treasurer’s deed but that of 1862, and the assignment had been specially upon it, the case would have been a clear one. But there was evidence tending to show that Bushley purchased Cooper’s interest in both the deeds of 1860 and 1862; that both were handed over by Cooper to Bushley; that it was a question between the parties, whether both deeds should be assigned to carry the title; and that Cooper thought as he had both deeds, the assignment carried all his title. The court was, therefore, right in submitting the question of fact to the jury, as to what the real bargain of the parties was, which they intended to consummate by the assignment, endorsed upon the deed of 1862. But this fact was of no moment unaccompanied by any instruction as to its effect upon the case. If the real bargain was a sale of the entire interest of Cooper under both deeds, and the assignment was made upon that of 1862 only, under a mistaken belief that it would convey all his interest in the land under both sales; it was a case of mistake in the very transaction itself, and at the time of it, which could be reformed. The submission was, therefore, not of a question of law, as the plaintiff in error asserts under the first assignment of error, but of a question of fact, out of which arose a question of law, and here it was the court erred in failing to instruct the jury l^pon the legal consequence of the finding. For if the bargain was for the entire title of Cooper under both deeds, then the redemption of the sale in 1862 did not affect his title under the sale of 1860, and the plaintiff’s purchase had not failed. In this event this action could not be maintained, for he lost nothing by the concealed redemption of the sale of 1862, and the alleged fraud did him no injury, unless Cooper was estopped from claiming title under the sale of 1860 by his receipt of the redemption-money under the sale of 1862, as the court held. This leads us to consider the question of estoppel. There was no evidence to show that the land was seated, or that the taxes for which the land was sold in 1860 were paid before the sale, or that the sale of 1860 had been avoided by a redemption. Cooper’s title under the sale of 1860 was therefore absolute and indefeasible. When the sale took place in 1862, Cooper was both the owner of the estate sold and the purchaser at treasurer’s sale. His was the hand to pay as well as to receive the redemption-money. The most that can be said of that sale is, that it did not divest his title under the sale of 1860, but was simply the means of coercing the payment of his own taxes, with costs, as a penalty for his neglect. Then what was the effect of the payment of the taxes, costs, and twenty-five per cent., constituting the redemption-money, by one who had been an owner of the land, but whose title was extinguished by the sale of 1860 ? In the first place, there is no evidence that his payment was in the slightest degree induced by Cooper. His payment was, therefore, wholly voluntary, and uninfluenced by Cooper. In the next place, he had not even a scintilla juris remaining in him after .the sale of 1860 became absolute, to which his payment could attach, in order to create a title in equity. He was, therefore, a mere stranger making a voluntary payment. In the last place, the money he paid did not represent the value of the land, or even a price put upon it by Cooper; but was merely the public charge upon the land, with the costs and percentage incurred by the nonpayment of that charge. The sum thus paid, therefore, did not represent a price or consideration given for the land to constitute either a trust or a purchase of it. The payment then being voluntary, and induced by no act of Cooper, and the sum received by him not representing the value of the land or any price put upon it by Cooper, on what principle in law or equity can it be said that Cooper’s title under the sale of 1860, passed by his receipt of the money paid to redeem the sale of 1862 ? Clearly, the most that can be founded upon his receipt of the money paid under the circumstances stated, voluntarily by a stranger to the title, would be an implied parol sale of Cooper’s title, if such an implication could arise, by reason of the payment of a sum not representing the value or price of the land. Rut to such a parol sale, were it implied, the Statute of Frauds and Perjuries would be a complete bar. The consequence would be the same, if a trust were implied instead of a sale. The court erred, therefore, in holding that either Cooper or his assignee were estopped by the receipt of the redemption-money paid upon the sale of 1862, from setting up title under the deed of 1860.

On the other hand, if the facts found were that Cooper sold only his title under the treasurer’s deed of 1862, and so specially assigned it to Bushley, the concealment by Cooper of the redemption of that sale, in which he had acquiesced by taking the money, would be such a fraud on Bushley as would enable the latter to rescind, and to recover from Cooper the money paid and interest, and any special expense to which he was put in making the purchase. How far Cooper’s sale of the title under the deed of 1862, would convert him into a trustee of the title under the deed- of 1860, for Bushley, is a question not raised in the case, and depends upon the true facts of the sale as to the title intended to be bargained for. Nothing can be said, therefore, on that question.

In regard to the question of tender before suit, if the fraud were found by the jury to entitle the plaintiff to rescind, there can be no difficulty as the case was presented. The sale of 1862 being wholly inoperative, if that were the only title which was intended to be conveyed, or which would legally pass by the assignment of that treasurer’s deed, nothing passed by the assignment of Cooper to Bushley. There was nothing, therefore, to be reconveyed, unless Cooper might require it, ex majore cautela, and if he did, this could be provided for in the verdict at the time of trial. Such is the doctrine of Babcock v. Case, 11 P. F. Smith 427. If any interest or estate had passed from Cooper to Bushley by the sale, even though an imperfect or a defeasible interest, a reconveyance would be necessary, and that, according to the doctrine of Pearsall v. Chapin, 8 Wright 9, would require the reconveyance to be tendered before suit- brought. The purchaser cannot hold what he has actually obtained, and yet ask a return of the price he has paid.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Young versus Edwards.
    1. As a general rule, a party has not a right to give in rebuttal evidence which might have been given in chief; its admission is in the discretion of' the court.
    2. Evidence was offered by defendant as rebutting which was in contradiction of evidence given by plaintiff; not being offered for that purpose, it was not error to reject it.
    3. By articles plaintiff contracted to convey to defendant 350 acres more or less; the land was 306 acres, and the deed was 302 acres more or less. In an action for the purchase-money, the court charged that this deficiency was not evidence of fraud. Held to be correct.
    4. In an action on bonds given for purchase-money, there was evidence of fraud and misrepresentation by the vendor as to the land. The court charged that to set aside the contract the evidence “must be clear and explicit, and- lead to a satisfactory and certain conclusion. The law does not use the words ‘weight of testimony’ concerning evidence to overthrow solemn duties and obligations,” &c. Held to be error.
    5. In civil eases the jury determine according to the weight of evidence, and its sufficiency to produce conviction of absolute certainty.
    6. No more is required than that the evidence should be sufficient to satisfy the conscience of a common man, so that he would act upon the conviction in matters of the highest importance to his own interests, although that be short of absolute certainty.
    7. There is nothing in determining a question of fraud which makes it an exception.
    8. The existence of fraud is to be proved as any other fact; the evidence is sufficient if it satisfy beyond a reasonable doubt.

      October 29th 1872.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Cambria county: No. 77, to October and November Term 1872.
    This was a feigned issue in which Lewis R. Edwards was plaintiff and Andrew Young defendant, under the following circumstances :—
    On the 29th of June 1870, the plaintiff agreed to convey to the defendant 350 acres of land, more or less, in Cambria county, having a flouring-mill and saw-mill thereon erected; also, the right to cut and take off all timber over 18 inches in diameter, on 97 acres of land adjoining the 350 acres and owned by Peter Parrish, &c., and, also all the cherry, &c., on a tract of land in Blacklick, &c. In consideration, Young agreed to convey to Edwards a tract of land in Indiana county, containing 98 acres more or less, with a flouring-mill, &c., thereon; and, also to pay Edwards $4000 in lumber, to be delivered at Ebensburg, viz., $1000 worth on or before the first day of April in each of the years 1871, 1872,1873 and 1874.
    On the 18th day of July 1870, for the purpose of carrying out the articles of agreement, Edwards by deed conveyed to Young certain land, afterwards by survey found to contain 306 acres 71 perches.
    The land conveyed was composed of several tracts; one was described as “that other piece,” &c., of land * * * having thereon erected a frame grist-mill and frame saw-mill, being the reserved part mentioned in deed to Sherry and from Sherry to Parrish. In neither of these deeds to Sherry and to Parrish, did there appear any reservation whatever.
    The aggregate contents of all the tracts was about 803 acres and 72 perches.
    On the same day, Young executed and delivered to Edwards, four bonds with warrants of attorney to confess judgment; the first payable April 1st 1871, the others on the 1st of April of each of the succeeding years. On each of these bonds, judgment was entered on the 4th of February 1871.
    On the 30th of March 1871, the defendant made an affidavit that the mills on the land sold to him by the plaintiff, for part of the consideration of which the bonds were given, had not the capacity represented, that the boundaries were not where they had been represented by the defendant; that the timber pointed out at the time of the negotiation as being on the land to be conveyed, was not on it, and that the conveyance was defective, and therefore the consideration of the bonds had failed.
    On this affidavit, the judgments were on the 5th of February 1872 opened and a feigned issue awarded to try the facts alleged in the affidavit.

      The case was tried, March 11th 1872, before Dean, P. J.
    The plaintiff gave in evidence the four bonds before mentioned, and rested.
    The defendant then gave in evidence the articles of agreement of June 29th 1870; also that upon a survey made June- 22d and 28d 1871, one line of the survey ran through the dam of the mills, the lines were run in accordance with the deed, Edwards to Young.
    He gave evidence that when Young was looking at the land, Edwards told him the saw-mills would cut 8000 feet per day; that the grist-mill had a good power and was in good running order, and he had right to raise the dam three feet without damming the water off his own land. Edwards showed him timber land, which he said was his. He gave evidence that the saw-mill would not cut more than 3000 feet per diem; that the water could not be raised any more on the land; that the grist-mill had little or no power; that the wheels were not sufficient to run a grist-mill; that the timber pointed out was on adjoining land, and that plaintiff showed him about 60 rods over the neighbor’s line, as being part of the land he sold to defendant.
    He gave evidence also, that his property in Indiana county was worth $6000 or $7000, and that the property sold to him by plaintiff, was not worth more than from $2000 to $3000; also that plaintiff said that there were 350 acres in the tract.
    In rebuttal, Robert Lytle and Robert McKeage testified for the plaintiff, that they had bought from him one-half of defendant’s Indiana property for $1500. He gave evidence also in answer to defendant’s evidence as to misrepresentations; as to the capacity and power of the mills, the timber alleged to be on the land, and to defendant’s case generally.
    The plaintiff rested.
    The defendant then called Jacob Zern, and proposed to prove by him, that
    “ L. R. Edwards, the plaintiff in this suit, after the deed had been executed by Young for Indiana property, told witness that he had sold his, Edwards’s, interest in the Indiana property for $4000, for the purpose of showing that the Indiana property was worth more than the property in Cambria county, conveyed by Edwards to Young.” To this offer the plaintiff objected, for the reason that said testimony is not in rebuttal to any portion of the testimony of plaintiff adduced by plaintiff in answer to the defence, and if evidence for any purpose it should have been offered in reply to plaintiff’s prima facie case.
    The court rejected the offer, and sealed a bill of exceptions.
    The court charged:— * * *
    “ It appears from the evidence, that Edwards, the plaintiff, was, on the 29th of June 1870, a resident of this county, where he owned a tract of timber land, amounting to something over 800 acres, having thereon erected a saw-mill, grist-mill and dwelling-houses. [We have been asked by the defendant to say to you, that from the evidence, the saw-mill and grist-mill are not on the land described in the deed; we decline to say so, but on the contrary, say to you, that the deed which purports to convey this land, and the description and references therein are sufficient to pass the saw-mill and grist-mill to the vendee in that deed, and it having been shown that Edwards at the time he executed the deed had a title to the land on which the saw-mill and grist-mill are erected, that title by his deed vested in Young, the defendant, and that on this point there is no evidence for your consideration.]
    “ It appears further, from the evidence, that Young, the defendant, on the 29th of July 1870, was a resident of Indiana county, where he owned a tract of improved land, on which were erected a grist-mill and saw-mill. On that day the parties entered into a written agreement for the exchange of their properties. * * * By the agreement, they were to exchange properties ; Young to pay $4000 boot-monejt, in lumber, without interest. On the 18th of July following the deeds were exchanged, and Young signed and delivered to Edwards the four judgment-bonds now in dispute, the payment of which is resisted.
    “ As the evidence is somewhat voluminous, we shall endeavor to state to you as briefly as possible the main points of the defence, going to show, as is claimed by him, misrepresentation, fraud and want of consideration.
    “ I. [He claims that he did not get the quantity of land that Edwards agreed to convey, and that the deed purports to convey. The deed purports to convey 300 acres more or less. The defendant claims that there is a deficiency of 24 acres. This is not great enough to afford any evidence of fraud or misrepresentation, nor is it enough to warrant the court in interfering to aid the defendant in resisting payment of the purchase-money or any portion of it. The deed does not purport to fix exactly the quantity, and the defendant after accepting it, with its wording more or less, cannot for such slight deficiency have a deduction from his purchase-money. So far as this point is concerned, the contract must be treated as if he had got the 300 acres.]
    “ II. The defendant claims, that Edwards, in showing him over the property, falsely represented to him that certain land, well timbered and more valuable than any portion included in the description of the land in the deed, was included in, and formed part of that which he, Edwards, proposed to exchange.

      “ III. The defendant further claims that Edwards falsely represented to him that the saw-mill, which formed part of the property, was a good mill, and would cut from 7000 to 8000 feet of lumber per day, and that the grist-mill was perfect, well built, and in all respects would perform well its work.
    “ IV. And further, that Edwards falsely represented to defendant that the land overflowed, or covered by the water of the mill-dam, was his, and that the deed he proposed to execute would convey all the land and more, than was covered by the water of the dam.

      “ Before directing your attention to the evidence directly bearing on these points, we refer you to that relating to the comparative value of the two tracts of land. * * * If the evidence satisfies you that the Edwards property is much less valuable than the Young-property, it may be a circumstance to aid you in arriving at a verdict when taken in connection with the other evidence in the case. * * *
    “ The evidence on this question is conflicting, but is for you. If you are satisfied that there was a great difference in value, it is a fact to be taken into consideration by you in determining from the other evidence in the case whether there was fraud, false representation and failure of consideration.
    “ As to the law applicable to the case under the evidence, we say to you that if the plaintiff, Edwards, either wilfully or unintention-, ally misrepresented to Young material facts within his knowledge, and not within the knowledge of Young, and Young was thereby induced to pay more on the exchange of land than he otherwise would have done, Edwards cannot collect from Young, the party deceived, more than Young in equity and good conscience ought to pay; and while this is the law, we say further that the evidence of misrepresentation must show misrepresentation of a material fact or facts by Edwards, and further that Young relied upon and put trust in these misrepresentations when he purchased. It is not enough to show that a fact relied upon by Young did not exist; the fact relied upon by him must have been falsely represented by Edwards to exist. The representation must not have been a mere expression of opinion on matters equally open to the investigation and observation of both parties. The plaintiff has four judgments entered on solemn obligations, signed and sealed by the defendant. By these he acknowledges to owe $4000. [To set aside or vary this contract, to say that he shall pay only part of this amount or none of it, requires that the evidence of false representations, and that Young relied upon them, must be clear and explicit; must lead • to satisfactory and certain conclusion. The law does not use the words ‘ weight of testimony ’ concerning evidence to overthrow and set aside solemn deeds and obligations; it uses stronger words, and demands that the evidence shall be clear and explicit, and lead to a satisfactory and certain conclusion.]
    “ Is the evidence in this case of that character ? It is for you, and after adverting to the evidence, which defendant claims makes out his defence, to this issue, and that of plaintiff in reply to the same, we will leave the matter with you.
    “ Concerning the false representation as to the timber land, it appears that there were present, when Edwards showed the timber land to Young, the two sons of Young, William and Joseph; they and their father testify that Edwards conducted them through a corner of the land included in the boundaries of this deed, and then some distance — one of the witnesses says 60 rods — through lands now ascertained to belong to one Dr. Bradley; that while so doing Edwards represented that this Bradley land belonged to him, and forms a part of the land he proposed to exchange — that this Bradley land was well timbered, and would, if it had belonged to the Edwards tract, have added largely to its value. This is the testimony of old Mr. Young and his two sons — they further testify that afterwards, when the surveyor ran the boundaries of the tract from the deed of Edwards, they for the first time discovered that the Bradley tract was not included. If Edwards did so represent, and Young, relying on this representation entered into the contract, it would be such a misrepresentation, as would entitle Young to a deduction from the purchase on these judgments to an amount equal to the damage sustained by reason of the misrepresentation ; that damage would be the difference in the value of that which he thought he was getting, and that which he actually did get by the deed, because it is not pretended that this Bradley land is conveyed by the deed. It would not matter whether Edwards wilfully falsified as to this Bradley tract, or was only mistaken as to the boundaries of his own tract; when he undertook to point out his own land, he was bound to know where it was, and whether he made a mistake, or uttered a lie, he cannot claim payment for that which he did not convey.
    “ The plaintiff denies that Edwards either falsely or mistakenly represented the Bradley land to be his. * * *
    “ Did Edwards represent the Bradley tract or any portion of it as belonging to the tract he proposed to exchange ? if so, did Young, relying upon this representation, give more than he otherwise would have given? If the evidence clearly shows this false representation, as claimed by defendant, then you will deduct in making up your verdict, from this purchase-money or bonds, the difference in the value of what Young thought he was buying and what he actually got by the deed.
    “The defendant) claims, that Edwards falsely represented to Young that the saw-mill would cut from 7000 to 8000 feet of lumber per day, while in fact it. would only cut about 2000 feet,— and that the grist-mill was a good one, when in fact it was almost worthless. The defendant and his sons testify that since they have had the saw-mill it has cut but 2000 feet per day, and that they have only been able to grind about 10 bushels of grain in the grist-mill per day. [You then have the evidence on the other side that the Youngs are unskilful and indolent, and that the mills are not kept in repair — that the saw-mill, when Edwards had it, averaged 5000 feet per day, and that at one time when tested it cut about 12,000 feet in 12 hours]; also, the testimony of Tibbott that when he ran the grist-mill it would grind between two and three bushels per hour, and the other evidence on this point. It does not seem to us clear, but it is all for you. If the Youngs, as testified to by themselves, were millers and millwrights, the construction, location and capacity of mills were matters with which they might be presumed to be familiar. [They were there on the ground, and unless it clearly appears that Edwards misrepresented the capacity of the mills, and that Young relied on such representations, and not on his own judgment, you should allow no deduction for the alleged deficiency in this respect.] If there was, however, a false representation, and Young relied upon it, and gave a greater price than he otherwise would have done, then deduct from these judgments an amount equal to the damage sustained by him. * * *
    “ The defendant further claims that Edwards falsely represented to him that he was the owner of all the land covered by the waters of the mill-dam, and that even if the breast of the dam were raised three feet higher, the back-water would still be on the Edwards land. The defendant, Young, testifies that Edwards so told him during the progress of the negotiations, and that the survey has since demonstrated that the land overflowed by the water of the dam is not included in the land conveyed by the deed. Bearing in mind what we have said in reference to the other alleged false representations, you will determine whether there was a false representation of a material fact in this particular. * * *
    l£ Under the instructions we have given you, consider:—
    ££ I. [Whether the evidence clearly shows that Edwards falsely represented the Bradley land to be his, and part of that which he proposed to exchange and convey, and did Young, relying on such representation, give more for the land than he otherwise would have done?]
    ££ II. Did Edwards falsely represent the capacity and condition of the mills, and did Young give more because of such representations ?

      “ III. Did Edwards falsely represent- the extent of his ownership of the land covered by the mill-dam, and did Young rely on such representation and give more for the property than he otherwise would have done ? * * *”
    The verdict was for the plaintiff for $3959.50.
    The defendant took a writ of error, and assigned for error the rejection of his offer of evidence, and the parts of charge enclosed in brackets.

      Gr. M. Reade, for plaintiff iii error.
    — The testimony offered had a direct hearing upon the value of the property in Indiana, yet it was not properly cumulative, but was in reply to new matter conflicting inferentially with the defendant’s case, and was therefore admissible, although it might have been admitted in chief; this is an exception to the general rule, recognised in Stetson v. Croskey2 P. F. Smith 230, 231; 1 Green. E. § 2; Sidle v. Walters, 5 Watts 399; Devall v. Burbridge, 4 W. & S. 305. In an issue to try whether a judgment was given for more than was due in fraud of creditors, after evidence tending to show the affirmative, declarations of the judgment-debtor are admissible: Brown v. Parkinson, 6 P. F. Smith 336 ; although this was a feigned issue the court could make no order depriving the defendant of legal testimony : Ferree v. Thompson, 2 P. F. Smith 353. An ambiguity upon the face of a writing is for the court to explain, but if the uncertainty ai’ises from extrinsic evidence, the question must go to the jury: Beatty v. Lycoming Co. Ins. Co., 2 P. F. Smith 456. Where the evidence is partly written and partly parol it is error to exclude it from the jury: Fish v. Brown, 5 Watts 441; Slonecker v. Garrett, 12 Wright 415; Wilt v. Snyder, 5 Harris 77 ; Sailor v. Hertzogg, 10 Barr 296; Armstrong v. Hussey, 12 S. & R. 315; Madara v. Eversole, 12 P. F. Smith 160, 165. Where land can only be described or identified by matters not in the deed, and appearing by parol, the jury are to decide ‘what land was the subject of the contract: Richardson v. Stewart, 2 S. & R. 84; Nourse v. Lloyd, 1 Barr 229. In connection with other evidence of fraud, the difference in quantity of land represented was evidence of fraud, but the court instructed the jury, as matter of law, that the deficiency was “ not great enough to afford any evidence of fraud or misrepresentation: ” Boar v. McCormick, I S. & R. 166; Philips v. Scott, 2 Watts 318. The words “more or less,” in a conveyance, sometimes will extend only to a small difference: Frederick v. Campbell, 13 S. & R. 136. The rule laid down that the testimony respecting fraud and misrepresentation “ must be clear and explicit, must lead to satisfactory and certain conclusion,” was quite too severe. Satisfactory evidence is that amount'of proof which ordinarily satisfies an unprejudiced mind beyond reasonable doubt: 1 Greenl. on. Evidence §§ 1, 2; Hiester v. Laird, 1 W. & S. 245.

      R. L. Johnston (with whom were Shoemaker Sechler), for defendants in error.
    January 6th 1872,
   The opinion of the court was delivered, by

Williams, J.

There was no error in overruling the offer in evidence of the declarations of the plaintiff below as to the amount for which he had sold his interest in the Indiana county property conveyed to him by the defendant. They were offered for the purpose of showing that the property was worth much more than that in Cambria county conveyed to the defendant by the plaintiff. Undoubtedly they were competent and legitimate for this purpose if they had been offered in chief. But as a general rule a party cannot claim as a right to give as evidence in rebuttal that which he might have given in chief: Stetson v. Croskey, 2 P. F. Smith 230. The evidence proposed to be given was merely cumulative and not within any exception to the rule; and in such case it is well settled that it is within the discretion of the court to admit or reject evidence offered in rebuttal which might have been given in chief. But it is insisted that the evidence ought to have been received because it tended directly to rebut the testimony of Lytle and McKeage. If admissible for this purpose, it does not follow that it was error to reject it. A party cannot offer evidence for a specified purpose, and complain when it is rejected that it was legitimate for another and distinct purpose: Gaines v. Commonwealth, 14 Wright 319.

Nor was there error in charging the jury as complained of in the second assignment. There was not a particle of evidence tending to show that the saw-mill and grist-mill are not on the land described in the plaintiff’s deed to the defendant. The court was, therefore, clearly .right in not submitting the question to the jury, and in instructing them “ that the deed which purports to convey the land, and the description and references therein are sufficient to pass the saw-mill and grist-mill to the vendee in the deed.” If, as is not denied, the plaintiff below at the time he executed the deed, had title to the land on which the saw-mill and grist-mill are erected, there can be no doubt of the correctness of the instruction that the title vested in the defendant by the conveyance.

The next matter of complaint is, that the court erred in charging the jury in substance that the deficiency in the quantity of the land agreed to be, and actually conveyed, by the plaintiff to the defendant was not great enough to afford any evidence of fraud and misrepresentation, and in not submitting the question to the jury for their determination. It appears from the charge of the court that the defendant claimed that there is a deficiency of twenty-four acres. But we see no evidence of such deficiency. By the articles of agreement the plaintiff stipulated to sell and convey to the defendant three hundred and fifty acres of land in the townships of Blacklick and Carroll, Cambria county, be the same more or less, having a flouring-mill and saw-mill thereon erected. The deed which he executed in pursuance thereof, and which was accepted by the defendant without objection, purports to convey in the aggregate about 302 acres and 72 perches more or less, exclusive of the parcels excepted and reserved from the conveyance. The actual quantity conveyed, as ascertained by the survey subsequently made for the defendant, is 306 acres and 71 perches. There was then no foundation for the alleged claim that there was a deficiency in the quantity of land which the deed purported to convey. The plaintiff was not bound, by the terms of the agreement, to convey a specific quantity of land to the defendant, and as the agreement was merged in the conveyance, the latter must be regarded as the final contract between the parties. Whether the plaintiff in showing the defendant the land, at the time the parties were negotiating the exchange, falsely represented that the Bradley tract, which was well timbered and more valuable than any portion embraced in the deed, was included in and formed part of that which he proposed to exchange, was fairly submitted to the jury with the instruction that if the plaintiff did so represent, and the defendant relying on the representation entered into the contract, it would be such a misrepresentation as would entitle him to a deduction from the judgments for the purchase-money to an amount equal to the damage sustained by reason of the misrepresentation. And the jury were properly told that the damage in such case would be the difference in the value of that which he thought he was getting, and that which he actually did get by the deed. We think that the defendant below has no reason to complain of the charge as it respects that part of his defence which was founded on the alleged fraud and misrepresentation of the plaintiff in regard to the location, quantity and quality of land which he proposed to sell or exchange. The jury were told by the learned judge that it would not matter whether the plaintiff wilfully falsified as to this Bradley tract, or was only mistaken as to the boundaries of his own tract. When he undertook to point out his own land he was bound to know where it was; and whether he made a mistake or uttered a lie, he cannot claim payment for that which he did not convey.

But while the instructions in this respect were proper, we think that the rule laid down by the court as to the amount of proof necessary to establish the defence to the judgments, on the ground of the alleged fraud and misrepresentation of the plaintiff, was erroneous and calculated to mislead the jury. The court said: “ The plaintiff has four judgments entered on solemn obligations, signed and sealed by the defendant. By these he acknowledges to owe four thousand dollars. To set aside or vary this contract; to say that he shall pay only part of this amount or none of it, requires that the evidence of false representations, and that Young relied on them, must be clear and explicit, must lead to a satisfactory and certain conclusion. The law does not use the words “weight of testimony” concerning evidence to overthrow and set aside solemn duties and obligations; it uses stronger words, and demands that the evidence shall be clear and explicit, and lead to a satisfactory and certain conclusion. Is the evidence in this case of that character ?”

If by certain conclusion ” tbe court meant, as it evidently did, a conclusion in regard to which there must be no doubt resting on the minds of the jury, it needs no argument or authority to show that the instruction was erroneous. In civil cases the jury determine facts according to the weight of evidence, and not by its sufficiency to produce conviction of the absolute certainty of the conclusion arrived at. In most cases of conflicting evidence such a degree or amount of proof would not be attainable, and to require it would be tantamount to a denial of justice. If the evidence is sufficient to satisfy the mind and conscience of a common man, and so to convince him that he would venture to act upon that conviction in matters of the highest concern and importance to his own interest, 1 Stark. Evid. 514, it is all that the law requires, though such conviction may come short of absolute certainty. There is nothing peculiar in the determination of a question of fraud that makes it an exception to the general rule. Where there is evidence of fraud, its existence must be determined like any other fact. But in this case the jury were told in effect that, in determining the question, they must not be governed by the weight of evidence; that the evidence tending to show the alleged fraud must lead to a satisfactory and certain conclusion ; otherwise, such is the plain implication, the evidence must be disregarded. What else could the jury have understood from this instruction, than that the evidence of the fraud must be so clear and convincing as to leave no doubt resting on their minds ? If this were the rule, it would be difficult to establish fraud in any case. But the law does not require so high a degree of proof. If the evidence satisfies an unprejudiced mind, beyond reasonable doubt, it is sufficient.

Judgment reversed, and a venire de novo awarded.


text:
    Lane versus Harrold et al.

    1. A tenant in common may maintain an action for mesne profits against his fellow, after recovery against him in ejectment.
    2. A judgment in ejectment is conclusive of plaintiff’s right to the possession and to mesne profits.
    3. A judgment in ejectment estops the defendant from denying that he was in possession when the writ was served, or that his possession was tortious.

      4. Such judgment is primfi facie but not conclusive of defendant’s possession till the time the habere was executed; he may show that he was not in afterwards.
    5. Ejectment for a tract of land; after verdict for plaintiff for the whole and reversal, defendant disclaimed for three-fourths, the verdict was for plaintiff for three-fourths and defendant for one-fourth, and he continued in possession of the whole until the habere. Held, That the plaintiff might recover mesne profits for the three-fourths from the service of the writ.
    6. Lane v. Harrold, 16 P. E. Smith 319, distinguished.

      October 30th 1872.
    Before Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Westmoreland county: No. 83, October and November Term 1872.
    This was an action of trespass for mesne profits, brought December 17th 1869, by Henry Lane against Bennett Lane and Elizabeth Harrold.
    The cause was tried February 14th 1872, before Logan, P. J.
    The plaintiff gave in evidence the record of an action of ejectment between the same parties to August Term 1865 of the Court of Common Pleas of Westmoreland county. The land described in the writ of ejectment was for the whole of the tract, for three-fourths of which the plaintiff in this case claimed mesne profits. The record showed further, that the writ in ejectment was served on the defendants August 1st 1865. On the 20th of November 1867, there was a verdict for the plaintiff for three-fourths of the land, and for the defendant for one-fourth. On the 25th of November judgment was entered on the verdict; this judgment was affirmed by the Supreme Court, November 1st 1869, and the plaintiff put into possession under an habere facias on the 1st of December 1869.
    The plaintiff gave evidence that the defendants had had possession of the whole premises from 1865 to 1870, that during that time they had refused to allow him possession, and had driven him from the house on them.
    The court charged:—
    “ This is an action of trespass vi et armis, brought to recover mesne profits. The plaintiff and defendants in this case are tenants in common of the tract of land for the profits of three-fourths of which this action is brought; the plaintiff owning three-fourths and the defendant one-fourth of the land. To sustain an action of trespass vi et armis between tenants in common, there must, in ordinary cases, be either proof of actual ouster or of such facts and circumstances as'that the law would infer an actual ouster.
    “ The plaintiff in this action, however, relies upon a prior action of ejectment. The fact of an actual recovery in such prior action would, it is conceded on all hands, be conclusive of the question of ouster in this cause, and entitle the plaintiff to recover for the profits to the extent of the fractional interest during the period of actual ouster, not exceeding six years.
    “ It then becomes important to inquire whether there has been a prior recovery in any action of ejectment between these parties. To sustain this, the plaintiff offers record of the C. P. of this county, No. 61, August Term 1865, and by his counsel. claims that the verdict in this action of ejectment is conclusive as to the ouster of plaintiff by defendants of the three-fourths of the land; they fui'ther urge that the defendants only disclaim title, and not possession, as to these three-fourths in that action. We cannot agree that the verdict in that action is conclusive evidence as to the ouster. That verdict has received a construction by our Supreme Court: vide 16 P. F. Smith, page 319. Thompson, C. J., in the opinion there reported, holds the following language, as to the effect of the verdict on the reeord before us: ‘It appears, in this case, that the defendants at first took a general defence, by a plea of ‘not guilty;’ but afterwards disclaimed title as to all the land described in the plaintiff’s writ, excepting the one undivided fourth-part of it; and there was a verdict on the trial in favor of the plaintiff for the undivided three-fourths part of the land described, in favor of the defendants for the remaining one undivided fourth-part. This was exactly according to the disclaimer. It was a finding that the defendants had not possession of any more or greater proportion of the land sued for than that for which the defence was taken.’ This, then, construes the verdict as a finding that the defendants were not in possession of the three-fourths of the land; and the fact of their not having been in possession, is inconsistent with an ouster by them of’plaintiff as to this part.
    “ Again, this is an action brought to recover mesne profits for three-fourths of the land, based upon the alleged prior recovery in favor of plaintiff on the record just referred to; whilst, in the opinion of the Supreme Court, to which reference is made above, it is held to have been substantially a recovery for the defendant.
    “ From this we conclude there has been no such prior recovery in ejectment shown by the evidence as will sustain a recovery in this action, and we instruct you to return a verdict for the defendants.”
    The verdict was for the defendants.
    The plaintiff took a writ of error, and assigned the charge for error.

      II. P. Laird (with whom were S. O. $ J. A. Marohand), for plaintiff in error.
    The recovery of the plaintiff in the former action was conclusive evidence of his right to recover mesne profits of his share of the land: Drexel v. Man, 2 Barr 271; Huston v. Wickersham, 2 W. & S. 308; Osbourn v. Osbourn, 11 S. & R. 55; Postens v. Postens, 3 W. & S. 182; Sopp v. Winpenny, 18 P. F. Smith 78. One tenant in common can recover mesne profits from his co-tenant in an action of trespass for mesne profits after a recovery in ejectment and possession delivered under a habere faoias possessionem: Critchfield v. Humbert, 3 Wright 427 ; Bennet v. Bullock, 11 Casey 364; Hare v. Fury, 3 Yeates 13; Chambers v. Lapsley, 7 Barr 24; Reid v. Stanley, 6 W. & S. 369.

      II. JD. Poster, for defendants in error,
    referred to Lane v. Harrold, 16 P. F. Smith 319.

      January 6th 1873,
   The opinion of the court was delivered, by

Williams, J.

That a tenant in common may maintain an action of trespass for mesne profits against his co-tenant, by whom he has been ousted, after a recovery against him in ejectment, is too well settled to admit of doubt: Hare v. Fury, 3 Yeates 13; Chambers v. Lapsley, 7 Barr 24; Bennet v. Bullock, 11 Casey 364; Critchfield v. Humbert, 3 Wright 427. The judgment in ejectment is conclusive evidence of the plaintiff’s right to the possession of the premises, and his right to mesne profits from the service of the writ: Osbourn v. Osbourn, 11 S. & R. 55; Huston v. Wickersham, 2 W. & S. 309; Postens v. Postens, 3 Id. 182; Man v. Drexel, 2 Barr 202; Man v. Drexel, Id. 271; and it is also conclusive evidence that the defendant was in possession of the premises when the writ was served, and estops him from denying that he had possession, or that his possession was tortious. But it is not conclusive evidence of his possession after the service of the writ, and will not prevent him from showing that he abandoned or surrendered the possession to the plaintiff, or was not in it after the writ was served: Mitchell v. Freedley, 10 Barr 198 ; Sopp v. Winpenny, 18 P. F. Smith 78. But though not conclusive, it is primfi facie evidence that he continued in possession down to the time when the writ of habere facias possessionem was executed. It follows that under the evidence in this case the plaintiff was entitled to maintain the action of trespass for mesne profits. The judgment in ejectment for the undivided three-fourths of the land, for which the action was brought, was conclusive of the plaintiff’s right to the possession and his right to the mesne profits from the commencement of the suit, and of the defendants’ possession at the date of the service of the writ; and in addition to the evidence furnished by the judgment there was direct and positive testimony that the defendants were in the exclusive possession of the land from the date of the service of the writ until after the recovery in the ejectment. If the evidence was believed the plaintiff was entitled to recover. But the court below, misapplying the language of the Chief Justice in delivering the opinion of this court, in Lane v. Harrold, 16 P. F. Smith 319, which was a mere question of costs, told the jury that there had been no such recovery in ejectment shown by the evidence as would sustain a recovery in this action, and instructed them to return a verdict for the defendants. This was clearly error. The court, instead of giving a binding direction to find for the defendants, should have submitted the case to the jury, under proper instructions, for their determination upon the evidence.

Judgment reversed, and a venire de novo awarded.


author: Read, J.

text:
    Rudebaugh et al. versus Rudebaugh et al.

    1. A devise was to testator’s wife for life, “ and at her decease to return back and to be equally divided between my son John’s children and my daughter Lydia’s children ; subject to the restriction that my son John shall have the use of his children’s share during his life.” Held to be an estate for life to John (after the death of the wife) with vested remainder to his children.
    2. John had children born before the death of the testator and his wife, and others born after. All his children took upon his death.
    October 31st 1872.
    Before Thompson, C. J., Read, Agnew, Shabswood and Williams, JJ.
    Error to the Court of Common Pleas of Westmoreland county: No. 23, to October and November Term 1872, No. 23.
    This was an amicable action of ejectment for a tract of 106 acres of land, and case stated filed May 5th 1870, between John Rudebaugh, Christopher Rudebaugh, Washington Cox and Leah his wife, late Rudebaugh, in her right, Matthias King, only child of Elizabeth (now deceased), a daughter of John Rudebaugh the younger, David Rudebaugh, Samuel. Swab, David Swab, Barbetta Swab, John Rudebaugh, Franklin Rudebaugh, Melville Rudebaugh, Edward Rudebaugh, Daniel Rudebaugh and Samuel Rudebaugh, plaintiffs, and Alexander Rudebaugh, Harrison Rudebaugh, Albert Rudebaugh, Henry Rudebaugh, Matilda Rudebaugh, Harriet Rudebaugh, Ann Rudebaugh and Mary Ellen Rudebaugh, defendants.
    The case stated shows these facts: — ■
    John Rudebaugh the first died in July 1828, seised of the land in dispute, having made his will, dated October 16th 1822, and proved July 22d 1828. By his will he provided as follows:
    “I give to my wife Elizabeth all my real estate during her natural life, * * * and all my personal estate, and all the money and outstanding debts, * * * during her natural life, and at her decease the same to return back and be equally divided between ■my son John Rudebaugh’s children, and my daughter Lydia’s, intermarried with Martin Funk, their children, I give devise and bequeath the same to their heirs and assigns, subject to the following restrictions, viz: That my son John shall have the use of his children’s share during his life, after the debts to be yet mentioned are paid. Lydia Funk’s children to pay their mother if so be she stands in need, $50 per year during her life. It is understood that the division of land between my son John Rudebaugh’s children and Lydia’s children to be in the following manner: * * * and after my beloved wife’s decease, and the above land divided, the above children of John Rudebaugh to be liable if their father is dead, to pay $700 for the use of Adam and David, sons of the deceased John Rudebaugh, Sr., but if their father John Rudebaugb, Jr., should be alive and have the use of their share of the land, he to pay the same or the land to be rented until paid, and likewise at my wife’s decease, the share that falls to Lydia’s children to be rented until they pay the said Adam and David before mentioned $700 of their share, and the said Lydia’s children to keep for their aunt Susan a cow’s pasture, * * * and likewise I give unto John Rudebaugh, Lydia Funk and Susan Rudebaugh, all my personal estate, u;hich will be found after my wife’s decease; likewise I give to my eldest son Adam Rudebaugh $700. Likewise I give to my son David Rudebaugh $700; to be paid by my son John if alive, or his children, and the children of Lydia Funk, in the following manner after my wife’s death.” * * * He gave also a number of small pecuniary legacies.
    Elizabeth Rudebaugh, the widow of the testator, died in 1829.
    John Rudebaugh, the son of the testator, died about February 26th 1869. The plaintiffs are children and descendants of deceased children by his first wife, these children having been born before the death of the testator and Elizabeth his widow. He had also three children, Joseph, Simon Reuben, and Sarah Jane, by this same wife, born after the death of the testator and his widow. He had a second wife who left no children. The defendants are the children of his third wife, also born after the death of the testator and his widow.
    Upon these facts it was agreed:—
    “ If the court should be of the opinion that the children of John, the son, who were born before the death of John, the elder, and his wife Elizabeth, are entitled to the land, then judgment to be entered for the plaintiffs generally.
    “If the court should be of opinion that the land belongs to all the children of John, the son, as tenants in common, then judgment to be entered for the plaintiffs, including Joseph, Simon Reuben, Sarah Jane, for the undivided twelve-nineteenth parts, and as to the residue for the defendants, including Mary Ellen, married to Demore, but who is not one of defendants.
    “ If the court should be of opinion that the defendants, Mary Ellen, wife of Demore, are entitled, under the will of John, the' son, to the undivided two-thirds of'the land in dispute, then the judgment to be entered accordingly.”
    The court entered judgment, October 17th 1871, for the plaintiffs generally on the case stated.
    This was assigned for error by the defendants upon the removal of the record to the Supreme Court.

      F. Qowan (with whom was J. F. Wentling), for plaintiffs in error.
    The use of the lands to John for life was a devise of the land to him. The division of the land between John’s children and Lydia’s children at the widow’s death did not contemplate a division between the children themselves. The children then living took a vested remainder which would open to let in after born children: Wager v. Wager, 1 S. & R. 377; 2 Jarman on Wills 55 et seq.; Haskins v. Tate, 1 Casey 249.

      H. D. Foster, for defendants in error,
    cited Calhoun v. Jester, 1 Jones 474.
    November 14th 1872,
   The opinion of the court was delivered, by

Read, J.

This is an action of ejectment for 106 acres of land in North Huntington township, in which it was agreed that certain facts should be submitted to the court, to be considered in the nature of a special verdict, with leave to either party to sue out a writ of error. The court below, on the stated case, entered judgment for the plaintiffs generally, to which this writ of error was taken. The only question argued before us was the construction of the will of John Rudebaugh, the elder, and that was whether John Rudebaugh, the son, took a life estate in the shares of his children or not. If he took a life estate, then it was agreed on both sides that the judgment below was wrong. The testator devised and bequeathed to his wife Elizabeth all his real estate whereon he was then living during her natural life, and also all his personal estate to her during her natural life, “ and at her decease to return back and be equally divided between my son John’s children and my daughter Lydia’s, intermarried with Martin Funk, their children; I give, devise and bequeath the same to their heirs and assigns, subject to the following restrictions, viz.: that my son John shall have the use of his children’s share during his natural life.” The devise of use during his natural life is a devise of the land to him for life, with a vested remainder in his children.

John, the son, was married three times. By his first wife he had children born before the death of the testator and of his widow, who are the plaintiffs in this case, and three children born after the death of the testator and of his widow. The defendants and Mary Ellen, married to Demore, are the children of John, the son, by his third wife, after the death of testator and of his widow, and before the death of John, the son. There were, therefore, two life estates, that of the widow and that of the son, and therefore the term children of John included, according to all the authorities, all John’s children born before his death: 2 Jarman on Wills 55, 56; Minnig v. Batdorff, 5 Barr 505.

The judgment, therefore, is reversed, and in conformity to the case stated, judgment is entered for the plaintiffs, including Joseph, Simon Reuben, Sarah Jane, for the undivided twelve-nineteenth parts; and as to the residue for the defendants, including Mary Ellen, married to Demore, but who is not one .of the defendants.


text:
    The American Union Express Co. versus Robinson.
    1. Express companies undertake to deliver to the consignee, as common carriers by land did before railway companies came into general use.
    2. In the ordinary railway transportation by common carriers of goods, there is no obligation after they reach their destination, but to put them safely in warehouses.
    3. Express companies are ordinarily to be held to personal delivery, either to the residence or place of business of the consignee.
    October 31st 1872.
    Before Thompson, O. J., Read, Agnbw, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Armstrong county: No. 160, to October and November Term 1872.
    This action was commenced before a justice of the peace of Armstrong county, by William I). Robinson against The American Union Express Company, and on the 7th of March 1870 was removed by appeal from his judgment into the Court of Common Pleas. It was brought to recover the value of a demijohn of cherry brandy, lost, as was alleged, by the negligence of the defendants.
    The case was tried, September 14th 1872, before Logan, P. J.
    The plaintiff gave evidence that on the 20th of October 1869 he delivered a demijohn of cherry brandy at Parker’s Landing, to Robert Miller, the express agent of the company who ran their line on the Allegheny Valley Railroad; it was addressed: “ W. D. Robinson, Kittanning;” a receipt was asked for, but none was given; there was not much time till the train arrived; there was the same ear for express and baggage.
    The plaintiff having given evidence of the value of the brandy, rested.
    The defendants gave evidence by Miller, their agent, that the demijohn was brought as the train was about starting, and he had not time to make out a bill and receipt, but directed those who brought it to put it on the train and the messenger could do it; it was given to the messenger on the train. The conditions in the receipts given are that articles of glass or contained in glass shall be received at the owner’s risk. Witness never saw the demijohn whole afterwards; saw the pieces at the office in Kittanning; the pieces showed the glass was too thin to carry anything safely ; the wicker-work, bottom was off; the seal was unbroken, the tag, with directions, was on it; in the opinion of the witness the vessel was not fit to carry liquor of any kind.
    “It is customary to.deliver packages to. those who reside in the town, or within a reasonable distance; it is done to draw patronage and for our own accommodation, but it is at the agent’s option whether he delivers them at the office or their place of residence; we can take a receipt, either at their place of business or at the office. We are directed not to deliver articles unless the charges are paid at the time of delivering to the consignee; if the agent delivers before the charges are paid, it is at his own risk.
    “ The express company’s office is their place for receiving and delivering goods, &c., if delivered at residence or place of business it is a matter of accommodation. Goods are frequently delivered to parties before taken to the express office at the place of destination.”
    L. P. Croll testified: “ I was defendant’s agent at Kittanning in 1869; received a demijohn marked to plaintiff in October; took it down in wagon; set it in the office; the wicker-work was out of bottom when we got it out of car; handled it very carefully; think I drove slow down. It was not leaking when I got to office; nothing broken; got it to office at 3.15 P. M. I put it on the counter a few feet from end; I carried it in carefully and set it down on bottom. No dog or other animal in when I went' out; nothing near that could interfere with it. Went to another train in 2J or 3 hours; when I started out it was sitting there as sound as when I put it there; when I came back found it sitting up but liquor run out; when it was touched it fell all apart; seal was never touched. Know Miller’s handwriting; tag didn’t look like his handwriting. Had discovered it broken inside of three hours of getting package; hadn’t gone out to deliver any at that time. Room locked up all the time I was away; had key in my pocket. Never could catch Mr. Robinson at home and had to lay out of freight.”
    The defendants then offered to prove their rules as to receiving goods, &c. The offer was objected to, rejected by the court and a bill of exceptions sealed.
    There was evidence tending to show that the liquor was of such character that it might have broken the vessel by fermentation.
    The court charged:—
    “ The defendants, the express company, are common carriers, as is conceded, and the first question for you is whether there was a delivery of the demijohn to defendants, to be carried for plaintiff to Kittanning. This is a question for you. To find this in the negative is an end of the case, and verdict should be for defendants. If found in the affirmative, you will next inquire whether the property was destroyed before delivery to consignee and whilst in charge of defendants, as carriers. If so, then there arises a presumption of fault, and without further explanation the plaintiff would be entitled to recover compensation in damages. Here it is first claimed that the demijohn, being in room of defendants, at Kittanning, was a delivery, and, therefore, defendants not liable otherwise than as warehousemen. There is no evidence in this case that would warrant you in finding this to be a delivery; neither proof of actual delivery nor notice of arrival.

      “ [Further than this, as to Express company, we think the sound rule to be a personal delivery, either to residence or place of business of consignee. If left for the convenience of carriers, in their room in the course of the transit, and for their own convenience, and before delivery or notice of arrival, it would seem to us they were liable as carriers, and we so instruct you.]

      “ There is no evidence tending to show a general usage or a consent of plaintiff to the goods remaining in the warehouse. Wherefore the liability of defendants as common carriers must be held to continue whilst the demijohn was in the house. Defendants being then common carriers and having charge of the demijohn as such, if you so find, and the property destroyed, also a question for you, whilst in their charge, has there been any showing under the evidence to release thorn from liability ? It is claimed by defendants that the destruction of the property arose from one or both of two causes.

      “ First, either from the expansion of the liquor when exposed to the ordinary shaking and temperature, incident to its transportation, and the insufficiency of the package to repel such incidental exposure. And second, that the breakage was the result induced by the defect of the willow basket containing the glass enclosure, that but for the defective condition of the basket the breakage would not have occurred. Either of these positions, if made out by the evidence, would show contributing negligence, and would be an ample defence if the injury occurred during the transportation of the package, or within the time it should reasonably, under all the circumstances, have been delivered, and not after unreasonable delay and upon a concurring cause incident to that delay, and without which it would not have occurred.

      “ Here we will say that the hauling to the office of the company, for the purpose of arranging for delivery, was not in itself unreasonable delay, although in such carriage the wagon passed the house of the consignee. Nor on the other hand can we say, as a matter of law, that the hauling it to such room, and permitting it to remain there several hours without delivery or notice of arrival, is reasonable diligence. This is a question for you. That defendants would have a right, taking their packages out of trains at a point remote from their receiving-house, first to remove them to some general room before final distributing delivery, is undoubted.

      “ Whether in this case permitting the demijohn to remain in warehouse was or was not, under all the circumstances, reasonable diligence, is for you.”
    The following are points of the defendants, and their answers :—
    2. If this injury to the property in dispute resulted from the insufficiency of the vessel to contain the liquors shipped, the plaintiff cannot recover.

      Answer: “ Unless the injury occurred after the time within which the package should reasonably have been delivered, and was induced by a cause incident to the delay, point affirmed, otherwise negatived.”
    8. Under the evidence in this case, the delay in delivery of the demijohn was not unreasonable.
    Answer: “ Whether reasonable or unreasonable, under all the circumstances, is a question for the jury.”
    4. After the delivery of the demijohn in the office of the defendants in good order, the defendants, if liable, are liable as warehouse-men, and not as common carriers.
    Answer: “If left in the warehouse for the convenience of the carrier, in transit to delivery, the point is answered in the negative.”
    The verdict was for the plaintiff for $30.
    The defendants took a writ of error. They assigned for error the rejection of their offer of evidence, the answers to their points, and the part of the charge in brackets.

      JE. 8. Gfolden (with whom was F. Mechling), for plaintiffs in error.
    An express company is nothing more nor less than a com-mon carrier, and is not to be held to a personal delivery of goods intrusted to its charge: railroad or steamboat companies are not charged with such duty. But if express companies are held to a higher rule, such rule may be varied by the course of business of defendant, which course of business shippers are presumed to know: Redfield on Railways 294, 295, 296; St. John v. Vansantvoor, 25 Wend. 660, s. c. 6 Hill 157; Gibson v. Culver, 17 Wend. 305.

      J. Gfilpin, for defendants in error.
    The general rule is that common carriers of goods are bound to deliver their goods in safety personally, i. e. at the residence or place of business of the consignee, within a reasonable time after they are shipped. A carrier by water has an exception in his favor, viz. he may deliver on the wharf and give the consignee notice of the arrival of the goods. When railroads were established an exception was allowed from necessity in their favor. They were allowed to deliver at a fixed place, depot or warehouse, &c. But express companies have never been held to be within this exception: they originated to supply this defective delivery by railroads. They do not carry only upon railroad cars, but use wagons also, to complete their delivery: Redfield on Railways, sec. 127; Baldwin v. Am. Express Co., 23 Illinois 197; s. c. Id. 154. They must deliver their goods as land carriers at the place of business of the consignees, as early as practicable after arrival, and within the usual business hours : Marshall v. American Express Co., 7 Wisconsin 1; Shenk v. Propeller Co., 10 P. F. Smith 109.

      November 14th 1872,
   The opinion of the court was delivered, by

Read, J.

The subject of the duties and liabilities of express companies has been very fully discussed, by Judge Redfield in his 2d volume of the Law of Railways, pages 15, &c., and in his treatise on the law of carriers of goods and passengers, chapter 5, page 47, and chapter 4, page 81. At section 50, page 38 of this last work, the learned author says; “One of the distinctive characteristics of this mode of transportation is that the companies, whether their line is by land or by water, or partly of each, undertake to deliver to the consignees in the same manner all common carriers by land did before railways came into general use; it being now well established, that in the ordinary railway transportation of goods by common carriers of goods, there is no obligation after the goods reach their appointed destination, but to put them safely in warehouse. It was mainly to remedy this defect in railway transportation of parcels of great value in small compass, that express companies were first instituted in America. That these companies are to be held ordinarily to personal delivery, has been so often decided as scarcely to require the citation of cases.” The court were therefore right in saying : “ Further than this, as to express company, we think the sound rule to be a personal delivery either to residence or place of business of the consignee.” In fact any other rule would be destructive of the business of express companies who receive a larger compensation, because they contract for a personal delivery of goods intrusted to them as common carriers. The charge of the court, as to the delay, its reasonableness or unreasonableness, was perfectly proper, as also their answers to the defendant’s point. We could not say the rejection of the evidence of the rules and regulations, as no copy of them was attached to the offer, was wrong, and it appeared on the argument they were the rules and regulations adopted by the company for the government of its members and employees.

Judgment affirmed.


author: Agnew, J.

text:
    The Chartiers and Robinson Turnpike Company versus McNamara.
    1. A paper required to be stamped cannot, under the Act of Congress of July 13, 1866, be given in evidence if unstamped.
    2. The want of a stamp is a disqualification of the paper in the hand of the delinquent to prevent its use until he pays the tax.
    3. The exclusion of the paper as evidence applies to State as well as Eederal courts.
    4. The Act of 1866, excluding as evidence an unstamped paper, is not a rule for regulating evidence, but is a disqualification of the instrument for want of payment of tax.
    6. The various Acts of Congress relating to revenue and taxation considered and compared.

      November 4th 1872.
    Before Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 70, to October and November Term 1871.
    This was an action of assumpsit, brought August 9th 1871, by Bridget McNamara against The Chartiers and Robinson Turnpike Road Company.
    The declaration was in the common counts, and the cause of action was work done by plaintiff in stoning the turnpike road of the defendants.
    The plaintiff having given evidence to sustain her claim, the defendant offered in evidence a written contract, dated April 24th 1868, between the company and one John Glen and the defendant, “ for the purpose of showing a specific contract to do the work for a specific sum, &c.”
    The agreement was not stamped, and the offer was objected to for that reason.
    The court, Hampton, P. J., rejected the offer and sealed a hill of exceptions.
    The verdict was for the plaintiffs for $488.90.
    The defendants removed the record to the Supreme Court, and assigned for error the rejection of their offer of evidence.

      L. K. Duff and Gr. Shiras, Jr., for plaintiffs in error,
    referred to McGovern v. Hoesback, 3 P. F. Smith 176; Carpenter v. Snelling, 97 Mass. 452; Green v. Holway, 101 Id. 243 ; Sammons v. Holloway, 21 Michigan 162; Lathurn v. Smith, 45 Ill. 29; Craig v. Dimmick, 47 Id. 308; Bunker v. Green, 48 Id. 243; Griffin v. Ranney, 35 Conn. 239; The People v. Gates, 48 N. Y. 40; Bumpuss v. Taggart, 26 Ark. 398; Duffy v. Hobson, 40 Cal. 240; Daily v. Coper, 23 Texas 815.

      S. A. MeOlung, for defendant in error,
    referred to the Acts of Congress of June 30th 1864, and July 13th 1866; McCulloch v. Maryland, 4 Wheaton 316; H. States v. Fisher, 2 Cranch 358; License Tax Cases, 5 Wallace 462; Morris v. Morris, 44 Miss. 441; Corrie v. Billin, 23 La. Ann. 250.
    January 6th 1873,
   The opinion of the court was delivered, by

Agnew, J.

It appears in the hill of exceptions in this case, that the defendants offered in evidence a special written contract, dated April 24th 1868, for the performance of the work done by the plaintiff. Objection to its reception in evidence was made li because the paper is not stamped as required by the Act of Congress.” The paper being unstamped, the court rejected the evidence. The single question is whether the Act of Congress justified the court in rejecting the paper as evidence. Under this bill, no question arises upon the validity of the written contract. Had the paper gone in evidence, that point could have been fairly open to discussion, under the 9th section of the Act of Congress of July 13th 1866, amendatory of the 158th section of the Act of June 30th 1864, declaring a paper not stamped “with intent to evade the provisions of the act,” invalid and of no effect: Laws U. S., 1866, p. 308-4; Ibid. 1864, p. 148. The inquiry under this bill is, therefore, confined to the amendment of the 163d section of the Act of 1864, contained in the 9th section of the Act of 1866 (p. 149), in these words: “ That hereafter no deed, instrument, document, writing, or paper required by law to be stamped, which has been signed or issued without being duly stamped, or with a deficient stamp, nor any copy thereof, shall be received or admitted, or used in evidence in any court, until a legal stamp or stamps, denoting the amount of the tax, shall have been affixed thereto as prescribed by law.” This provision gives rise to two questions, the first upon the meaning of the enactment; the second, upon the power of Congress to make it.

It has been held in Massachusetts and Michigan, that the provision applies only to the Federal and not to the state courts: Carpenter v. Snelling, 97 Mass. 452; Lawrence v. Halloway, 21 Michigan 162. It seems to us this interpretation of the Act of Congress was not well considered, and is contrary to the language and the design of the act. The words are, “ or used in evidence in any court.” Language could not be broader, and no exception or qualification is to be found in the act, while the design of Congress makes the meaning perfectly clear. The paper is not to be admitted or used in evidence, “until a legal stamp, or stamps, denoting the amount of the tax, shall have been affixed thereto, as prescribed by law.” Thus the purpose is plain to prevent the use of the unstamped paper, so long as it remains without payment of the tax or duty upon it. This is simply a disqualification of the instrument in the hands of the delinquent, to prevent its use, until he pays the tax. If “any court,” mean only the Federal courts, the design of Congress is totally frustrated, as will be seen at once upon referring to schedule B, containing the subjects of the stamp tax, numbering over forty classes of “ deeds, instruments, documents, writings, and papers,” used in ordinary business. They will be found to comprehend all those numerous writings of every kind, which enter into the domestic affairs of the people, and the business of every-day life, in the very bosom of the state — a few for example: agreements, checks, orders, bills, bonds, certificates, deeds, mortgages, policies of insurance, leases, powers of attorney, protests, receipts, and legal documents. Now, for one such paper which can be sued upon in the Federal court, by reason of ex-territorial citizenship or other ground of Federal jurisdiction, nine hundred and ninety-nine others can never reach a Federal court, and must be prosecuted in the courts of the state, where they were made, and where the parties reside. This law is a revenue law, and of what use is the disqualification of the paper until the stamp duty is paid, as a means of enforcing payment, unless “ any court” means state courts, as well as Federal ? Other portions of the section confirm this interpretation. The United States have no offices for the recording of deeds, mortgages, powers of attorney and other documents, yet the paper is forbidden to be recorded till the proper stamp tax be paid. The word “recorded” cannot be separated from its immediate context, the words following it, viz: “ or admitted, or used, in evidence in any court,” both run together, are part of the same sentence, and interpret each other. If “recorded” applies, as it must, to state offices of record, “any court ” applies with equal force to state courts. Then, also, the words “ until a legal stamp or stamps denoting the amount of tax, shall have been affixed thereto, prescribed by law," refer to all the different kinds and amounts of stamps in schedule B, just as clearly as the words “ deeds, instruments, documents, writings and papers,” refer to their various kinds in that schedule, and thus bring us back a second time to the entire body of writings and papers in use among the people within the state.

How can it be said, in view of all these provisions, the subjects of the tax and the evident design of Congress, that the words “any court,” thus used in the broadest form and fullest sense, without qualification or exception, are to be limited to the Federal courts, and thereby to defeat the enforcement of the payment of the tax, the only real purpose of the provision ? When it is said, as in Carpenter v. Snelling, supra, that Congress cannot pass laws regulating the competency of evidence in the trial of causes in the several states, the purpose of this provision is incorrectly stated. The abstract proposition is true, but it is misapplied. The purpose of Congress was not to make rules of evidence, but to stamp the instrument of evidence, with a disqualification, which will prevent its use as evidence until the delinquent has paid his tax. If, then, in legislating upon proper subjects of Federal power, so as to enforce the execution of the rightful power of Congress, it be said Congress cannot affix to the subject of the exercise of its clearly granted powers, qualities which must be recognised by state courts, I deny the assertion, and oppose to it the second section of the sixth article of the Federal Constitution, which makes such a law the supreme law of the land, binding on the judges in every state. If in legislating on a proper subject of Federal power, Congress declare a forfeiture, for instance of smuggled goods, with intent to evade payment of the duties on them, the state courts are clearly bound to recognise the title acquired by forfeiture in whosesoever hands the goods may be. When the subject of a law is fairly within a Federal power given in the Constitution, Congress has express power to pass all laws necessary and proper to carry the given power into execution. This is the test of the competency of this evidence. The instrument being a proper subject of the Federal power to tax, it is just as clearly competent for Congress to affix a disability to the unstamped paper that will compel the payment of the tax. The propriety, as well as the necessity, of the disability in this case, is so obvious, it does not admit of a serious question. The writing is a thing done between private persons, unseen by the eyes of revenue officers. Neither party has a motive to reveal it for taxation, for the tax enhances the price of an article of sale, and the expense of every pecuniary transaction evidenced by a writing. Neither is interested in inflicting the penalty upon the other. The very touchstone of the value of the writing to the party who claims under it, is his ability to put it in evidence. It is just here the law touches the writing with its power, and makes it useless to the party until he performs his duty, by paying the tax upon it. What can be more proper, a.nd, indeed, more just ? He makes his contract under the law and subject to it. He knows, or is presumed to know, his duty, and should perform it. If he fail from real ignorance, or for reasons which show that he did not intend to defraud the revenue, the instrument is not invalid, and he has but to procure the writing to be stamped, and can then use it in evidence. Then on what principles of reason, or of sound constitutional law, can a state court, subordinate in this respect by the Federal Constitution, disregard the Act of Congress, and receive the disqualified paper in evidence, when the prohibition concerns the rights of the superior government, and is essential to its power to collect the tax? The taxing power being a clear Federal grant of power, and the disqualification affixed to the writing as an instrument of evidence, being clearly proper to compel payment of the tax, the case falls directly under that provision of the Federal Constitution which makes the law supreme, and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.”

We come next to the question of power, if, indeed, there can be any question in a matter so plain. But courts in other states have denied the power, and their decisions have been cited to us. I shall, therefore, state our views briefly. I heartily concede the doctrine of state rights in all those things wherein state rights have been withheld from the Federal Government, and are by the Constitution itself reserved to the states, or the people thereof. In all that concerns the personal happiness and freedom of the citizen, the state is his natural protector, and I would cling to her, therefore, in whatever belongs to her reserved and ungranted powers. I have said heretofore, that the doctrine of state rights, pushed to excess, culminated in civil war, while the rebound, caused by the success of the Federal arms, threatens a consolidation equally serious; and, therefore, that the land-marks of the Constitution, as planted by Chief Justice Marshall and his associates, on the solid ground of reason, and a due regard to the rights of the states and of the Union, constitute the only safe guides of decision: Craig v. Kline, 15 P. F. Smith 399. But when, as here, a clear case of Federal power comes before us, the paramount duty we owe, as state judges, to the Federal Constitution, requires that we should uphold the exercise of the Federal powers, as a matter of duty and conscience.

The power of Congress “ to lay and collect taxes, duties, imposts and excises,” is the first great power conferred in the enumeration of powers found in the eighth section of the first article of the Constitution of the United States, and immediately precedes, as its true purpose and end, the power “ to pay the debts and provide for the common defence and general welware of the United States.” The nineteenth clause in the same enumeration, declares that Congress shall have power “ to make all laws which shall be necessary and proper for carrying into effect the foregoing powers, and-all other powers vested by this Constitution in the government of the United States, or any department or officer thereof.”

At a very early day Congress, under the taxing power, passed a stamp tax act, on the 6th of July 1797, entitled “An Act laying duties on stamped vellum, parchment and paper 1 U. S. Stat. at Large, p. 527. The thirteenth section contains this clause: “ And no such deed, instrument, or writing, shall be pleaded or given in evidence in any court, or admitted in any court to be available in law or equity, until it shall be stamped as aforesaid.” Next came the Act of 2d August 1813, entitled “ An Act laying duties on notes of banks, bankers and certain companies; on notes, bonds and obligations discounted by banks, bankers and certain companies; and on bills of exchange of certain descriptions :” 3 U. S. Stat. at Large, p. 77. The seventh section begins with this provision : “ That no instrument or writing whatsoever, charged by this act with the payment of a duty as aforesaid, shall be pleaded or given in evidence in any court, or admitted in any court to be available in law or equity, unless the same shall be stamped or marked as aforesaid.” This section contained a further provision, enabling the party, in cases of omission, to pay the stamp duty to the collector, and thereby to establish the efficacy of the instrument. Similar provisions are made in existing laws. Thus, it appears that the exercise of the power in question, in its most rigid form, is an old practice of the government, sanctioned by those contemporary with the formation of the Constitution, and familiar with the relations between the states and the Federal government. Added to this is the analogous legislation exercised from the first year of the organization of the government. Thus the Act of July 81st 1789, to regulate the collection of duties, in the twelfth section, provides that goods, wares and merchandise, landed without the collector’s permit, shall be forfeited, and may be seized by the officers of the customs; and if of the value of $400, the vessel, tackle and furniture shall be subject to like forfeiture and seizure: 1 U. S. Stat. at Large, p. 29. The Act of June 4th 1794, for the collection of the internal revenue upon distilled spirits, stills, wines and teas, in the second section, provides for the forfeiture of the spirits distilled, and of the spirits itself: 1 U. S. Stat. at Large, p. 379. Then there are the numerous statutes relating to the coasting trade, tonnage duties, the embargo, &c., forfeiting both vessel and cargo; and various statutes on the subject of the internal revenue, forfeiting the subjects of taxation for non-payment of the taxes and excises; and decisions thereupon without number: see Brightly’s Federal Digest, pp. 127-8, 278, 487, 736, 803. This power to forfeit the subject of the tax, duty, impost or excise, as a consequence of evasion or non-payment, is undeniable, for the reason that, being in the exercise of the express powers of the Constitution, and the lawful means of carrying these powers into effect, they are within the clearly defined powers granted to the Federal government. Now, it is perfectly obvious that the evidence of the title is not more sacred than the very thing itself. If the latter can be forfeited for delinquency, on what principle can it be affirmed that the former cannot be reached to compel payment? Certainly the paper evidencing the owner’s right to money, or other property, is quite as much within the power of regulation to secure payment as the thing itself is, of which it is the mere type. The argument which affirms that it cannot be so regulated places the incident on higher ground than its principal, and makes the shadow more sacred than the substance.

It is said, in some of the cited cases, that the exercise of this power enters within the domain of the state, and interferes with its internal affairs. Granted; but what logical consequence follows ? Certainly not that the Act of Congress is unconstitutional and invalid. From the very nature of the power to lay taxes and excises, its exercise comes right into the heart of the state, and visits its citizens in all their most private relations, estates and property. It is not more searching in its operation than the power to establish a uniform system of bankruptcy, to return fugitives from justice and labor, to call out the militia, to regulate the value of money and fix a standard of weights and measures, and to establish post-offiices and post-roads; yet all these, admittedly., enter within the state, and touch most intimately its business and people. Like the taxing power, these are among the express powers of Congress, and their rightful exercise within the states is, therefore, undoubted. A notable instance of the exercise of Federal power within the bosom of tbe state is tbat discussed in tbe United States v. Fisher, 2 Crancb 258, under tbe Act of Congress giving priority in payment to tbe claims of tbe United States, out of tbe estates of decedents. C. J. Marshall there discussed and settled the interpretation of tbe nineteenth clause of tbe eighth section of tbe first article, conferring tbe power to pass necessary and proper laws to carry tbe main powers into effect. In that case, from tbe duty of tbe United States to pay their debts, is inferred tbe power of preserving their own claims as a means of paying debts; and from this was inferred tbe further power of declaring tbe claims of tbe United States first liens on the estates of decedents, thereby entering into tbe most sacred trusts of tbe state herself, in which she bolds tbe property of the dead, and changing tbe order of distribution of that property, placed upon it by state legislation. This right of priority of tbe United States has been conferred upon tbe sureties of debtors by way of subrogation.

Without extending tbe argument unnecessarily, tbe license tax cases reported in 5 Wallace’s U. S. Rep. 462 bear more directly upon tbe question of power in this case, and, in effect, settle it. It seems to us very clear that tbe provision of the Act of 1866, which excludes an unstamped writing or paper from record, and as evidence in any court until tbe tax be paid, is not a rule for tbe mere regulation of evidence, but is a disqualification attached to the document, making it incompetent to fulfil its purpose as an instrument of evidence, until the stamp duty is paid; that it is a provision to enforce the payment of the tax of the most necessary kind, and binding on all courts; and that it falls clearly within the express powers of Congress to levy taxes, duties, imposts and excises, and to make all laws necessary and proper to carry the taxing power into execution.

The judgment is therefore affirmed.

Thompson, C. J., dissented, upon the ground that the legislation alters a rule of evidence belonging to the state tribunals.

Sharswood, J., dissented.