Commonwealth v. Erie Railway Company, etc. Railroad Company v. Commonwealth, 3 Grant, 129, because of the alleged distinction, that the tonnage tax there is justified by the contract of the company found in its charter. But the decision was not rested on that ground; it was placed on the broad basis that the three-mill tax per ton is simply a mode of taxing the company according to the magnitude of the business, justified by the nature of the subject and the power of the state over it, and is not repng. nant to the powers conferred upon congress, or the prohibitory clauses against laying duties on imports, exports or tonnage. Nor do I think that a contract relation helps the opposite argument. Let it once be conceded that the state law is, in fact, a regulation of interstate commerce, or imposes a tax on imports, exports or tonnage, in the sense of the federal constitution, and the contract relation will not justify it. The state cannot accomplish by contract what she cannot accomplish by law. The act we are now considering is in no sense a regulation of commerce, or an attempt to tax interstate commerce. It is the lawful exercise of state power over creations and uses brought into existence by her own authority; a proper tax upon the use of the franchises granted by her for the benefit of all alike who employ them, and in consideration of valuable privileges and facilities fur. nished to them by her authority and permission. The subject 14 wholly internal, and the imposition equal in its operation and equitable in its distribution; while to exempt freight passing out or coming into the state from its operations would be unjust discrimination against our own citizens and in favor of the citizens of other states. The case is not rested on the debatable ground of state power to regulate interstate commerce in the absence of congressional legislation on the same subject, but on the admitted right of a state to execute its power of eminent domain in the construction of works for the transportation of freight and passengers, and to legislate and tax their use by those who choose to employ them, as undoubted subjects of her domestic affairs, and of that internal commerce which she can rightfully control so long as she does not fraudu. lently exercise her power to the injury of the citizens of other states. For these reasons the judgments in all the cases are reversed, and a writ of venire facias de novo awarded in each case. READ, J., dissented. Elder v. Reel. ELDER V. REEL. (62 Pa. 308.) Foreign divorce- dower. ..' is settled, that the injured party in the marriage relation must seek redress in the forum of the defendant, unless such defendant has removed from what was before the common domicile of both. When a court has not jurisdiction, notice or even process duly served cannot give vitality to the judgment. At common law, adultery was no bar of dower, and, by the statute of Westminster (13 Edw. I, 1, c. 34), elopement or departure by the wife willingly from her husband, as well as adultery, is necessary to make the bar complete. J. E, the husband of A. E., after marriage, removed to another state-A. E. not accompanying him. While there, he procured a divorce, on the ground of the adultery of A. E. Subsequently, he became seized of certain real estate in Pennsylvania, to which he returned, and married another woman. A portion of this estate was conveyed by him to J. R., who purchased in good faith and without knowledge of J. E.'s prior marriage — the second wife joining in the conveyance. In the mean time, A. E. was living and cohabiting with another man, claiming to be his wife. J. E.'s second wife having died, he became reconciled to A. E., and lived with her. Upon J. E.'s death, A. E brought action for her dower in the real estate conveyed to J. R. Held, that she was entitled to dower, and that she was not estopped from claiming the same by reason of her acts and declarations, which could not have influenced J. R. in the purchase. ERROR to court of common pleas of Dauphin county. Action of dower, unde nihil habet. John Elder married Amelia Dehart in 1841. The same year he removed to Tennessee, where he remained until 1853. His wife remained in Pennsylvania during all this time. In 1850 Elder procured in the Tennessee courts a divorce from her, on the ground of adultery. The proceedings were ex parte, the wife not being out of Pennsylvania during their pendency, and not appearing in any manner on them. Elder became seized of certain real estate in Pennsylvania, upon the death of his father, in 1853. Returning to this state in that year, he lived a short time with his former wife, but in 1854 married another woman. In 1856 he and his second wife joined in a deed to John Reel of a farm which had been part of Elder's father's estate. Reel supposed Elder v. Reel. that the woman living with Elder, and joining in the conveyance, was his wife, and was ignorant of the circumstances of the prior marriage. At that time, Amelia was living with a man named Pickel, in Philadelphia, as his wife, and, being prosecuted subsequently for adultery, averred that she was divorced from Elder, and, substantiating her statement, was discharged. Elder's second wife dying, he was reconciled to Amelia, and lived with her from 1857 until 1860, the time of his death. This action was brought to recover dower in the estate conveyed to Reel. The judgment below was for the defendant, from which plaintiff appeals. W. De Witt, for the plaintiff, cited on the subject of jurisdiction, Bissell v. Briggs, 9 Mass. 466; Phelps v. Holker, 1 Dal. 261; Armstrong v. Carson's, Ex'rs, 2 id. 302; Benton v. Burgot, 10 S. & R. 240; Dorsey v. Dorsey, 7 Watts, 350; Steel v. Smith, 7 W. & S. 450; Baxley v. Linah, 4 Harris, 241; Rogers v. Burns, 3 Casey, 527; Bishop v. Bishop, 6 id. 416; Miltimore v. Miltimore, 4 Wright, 159; Colvin v. Reed, 5 P. F. Smith, 375; Hoffman v. Hoffman, 55 Barb. N. Y.; Flower v. Parker, 3 Mason, 251; Story's Conflict of Laws, chap. 14, §§ 539, 543, 546; Piquet v. Swan, 3 Mason, 169; Fenton v. Garlick, 8 Johns. 194; Dunn v. Dunn, 4 Paige, 425; Lyon v. Lyon, 2 Gray, 367; Arnold v. Tourtelet, 13 Pick. 172; Irby v. Wilson, 1 Dev. & Bat. 568; Borden v. Fitch, 15 Joł.ns. 121; Mills v. Duryee, 7 Cranch, 481. As to forfeiture of dower by adultery. Thomas's Coke, 703, n. ; Green v. Harvey, 3 Bacon's Abr. tit. Dower, p. 224; Stegall v. Stegall, 2 Brock. 258; 4 Kent's Com. 53; 1 Roper on Husband and Wife, 331; Cogswell v. Tibbetts, 3 N. H. 41; Walters v. Jordan, 13 Ired. 361; Graham v. Law, 6 Jones' U. C. C. 310; Shaeffer v. Richardson's Adm'rs, 27 Ind. 123; Bell v. Nealy, 1 Baileys (S. C.) 312; 1 Washburn on Real Prop. 227; Scribner on Dower, 498, § 2; 1 Bishop on Marriage and Divorce, 628; Coke's Lit. 33, n. 8; Menville's Case, 13 Coke, 23; Rolle's Abr. tit. Dower, 680; 1 Lilly's Abr. 669, tit. Dower, H.; Perkin's Con. tit. Dower, 155; Harris v. Harris, 4 Esp. 41; Bateman v. Ross, 1 Dow. 235; Park on Dower, 222; Clancy on Married Women, 201; 1 Roper on Husband and Wife, pt. 2, 559; 1 Brightly on Husband and Wife, 539; 1 Hil. liard on Real Prop. 101; 4 Kent, 53; 1 Washburn on Real Prop Elder v. Reel. 227; Scribner on Dower, 506; Lakin v. Lakin, 2 Allen, 45; Bryan v. Bachseller, 6 R. I. 546; Lecompte v. Wash, 9 Miss. 557; Hollister v. Hollister, 6 Barr. 449; Nathan v. Nathan, 2 Phila. 205. L. B. & Hamilton Alricks, for defendant, cited as to jurisdiction, Bishop v. Bishop, 6 Casey, 416; Rogers v. Rogers, 15 B. Monroe, 364; Dorsey v. Dorsey, 7 Watts, 352; Colvin v. Reed, 5 P. F. Smith, 375; Hart v. Lexas, 21 Wend. 40; Miltimore v. Miltimore, 4 Wright, 151; Warrender v. Warrender, 9 Bligh, 89; 2 Kent's Com. 117; Mills v. Duryee, 7 Cranch, 481; Hollister v. Hollister, 6 Barr. 451; Green v. Green, 11 Pick. 410; Harteau v. Harteau, 14 Pick. 181; Harding v. Allen, 9 Green, 140; Tolen v. Tolen, 2 Blackf. 407; Hull v. Hull, 2 Strobh. Eq. 174; Parsons on Cont. 117, note; Bishop on Marriage and Divorce, 155. SHARSWOOD, J. The only assignment of error which we shall consider, are the 2d, 3d and 4th. Those which remain are so clearly contrary to the rules of this court (6 Harris 578), that we must dismiss them on that ground. Fortunately, however, no injury results to the plaintiff in error, for the only questions which arise on the record are presented in the assignments, which are well made. The first of these questions is as to the effect of the divorce a vinculo matrimonii decreed by the circuit court of Montgomery county, Tennessee. The court below instructed the jury as follows: "We are of the opinion that the divorce decreed by the court of Tennessee effectually destroyed the marriage contract between John and Amelia Elder." It is probable that the learned judge would not have so held, if, at the time of the trial below, Colvin v. Reed, 5 P. F. Smith, 375, had been reported, or the decision brought to his notice. That case rules this. It settles that the injured party in the marriage relation must seek redress in the forum of the defendant, unless where such defendant has removed from what was before the common domicile of both. "In a proceeding to dissolve a marriage," says AGNEW, J., "the parties stand upon a level of rights; when the injured party seeks a new domicile, and the domiciles are, therefore, actually different, there is no greater reason why the husband's new domicile should prevail over the wife's, than that hers should prevail over his. In this aspect, justice requires that neither should draw the other within the folds of a foreign jurisdiction.” The rule thus established is so reasonable and fair that it must com Elder v. Reel. mend itself to every man's innate sense of justice; for, surely, it needs no argument to prove that no one, who has not shut himself out by his own voluntary act of flight from justice, should be condemned without a hearing or an opportunity to be heard. Nor did the evidence given of the notice of the pendency of the proceeding, admitting that it was served on the plaintiff, make any difference; for, in the language of the opinion in Colvin v. Reed, "back of it lies the want of power of the distant state to subject her to its jurisdiction." Clearly, when it is once determined that a court has not jurisdiction, notice, or even process duly served, cannot give vitality to the judgment it may pronounce. It is null and void, at least, as to any extraterritorial effect. Nor can it alter the case that the title to the land in which the plaintiff claimed her dower did not vest in John Elder until after the decree was pronounced. At the time it did so vest, the plaintiff was his lawful wife, and entitled to her dower, after his death, in any lands of which he might be seized at any time during the coverture. The remaining questions arise from the following language of the charge, specified in the second assignment of error: "We are of the opinion, that, independent of the divorce, the plaintiff, by her course of conduct, is precluded from recovering dower in the present case, and your verdict should be in favor of the defendant." This instructio. took every question of fact from the jury. In this, we think, there was error. Setting aside the Tennessee record, which, in this part of his charge, the judge excludes from consideration, so far from there being any conclusive evidence which would justify the court in withdrawing the case from the jury, it was all oral testimony, depending not only on the credit to be given to the witnesses, but on the construction to be put on their language. However clear and indisputable may be the proof, when it depends upon oral testimony, it is, nevertheless, the province of the jury to decide, under instructions from the court, as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial, if they should deem the verdict contrary to the weight of the evidence. But, assuming the facts in evidence as all proved, we think the instruction would still be erroneous. It could only have been based upon one of two assumptions of law: either that the adultery proved to have been committed by the plaintiff was a legal bar to her action of dower, or that she was equitably estopped by her acts or declara tions from setting up her claim against the defendant. VOL. I.-53 |