the common counts, which the declaration orig. | sessor to make another survey. Thus a measure inally contained, had been stricken out, and of taxation is fixed, and the distiller is notified the only issue for determination, therefore, is of it before he commences distilling. The secthat presented by a demurrer to the special tion also enacts that if at any time the Comcounts. These are substantially alike, and the missioner shall be satisfied that such report of demurrer to them raises the question whether, the capacity of a distillery is in any respect inunder the Act of Congress of July 20, 1868, en- correct or needs revision, he may direct the Astitled "An Act Imposing Taxes on Distilled sessor to make another survey. All this leaves Spirits and Tobacco and for Other Purposes, no doubt that the reported survey was intended 15 Stat. at L., 125, the Assessor and his assist- by Congress to be conclusive until corrected by ant, in estimating the true producing capacity direction of the Commissioner. of the distillery, are empowered to fix, as the true fermenting period, any other than that which the distiller in his notice to the Assessor, required by the 6th section, has declared he would use for fermentation, and which he actually did use.

not what the distillery will produce in the distiller's proposed mode of running it. There is, therefore, no well founded objection to the conclusiveness of the survey in this case, and as the tax assessed and collected was in accordance with the survey, the plaintiffs have no

Nor is there any such hardship as is suggested. We have seen that a report of the surveyor's determination of producing capacity is by the law required to be placed in the hands of the distiller before he commences business. If dissatisfied with it, he may apply to the Commissioner for another survey. He is thus informed of the extent of his liability to taxation. He has, therefore, little reason to complain, when he commences distilling, and does not produce at least eighty per cent. of what his distillery can produce, as determined by the survey, if he is taxed according to a standard which is not false, and of which he had thus early notice.

The judgment of the Circuit Court is affirmed.
Cited-3 Hughes, 245; 6 Biss., 401; 14 Blatchf., 3.

would produce if employed in a particular manner. To enable them to discharge this duty the provisions of the 9th section were enacted. That section requires the distiller to furnish to the Assessor an accurate plan of the distillery and distilling apparatus, showing the location and mode of construction of the ap-right of action to recover it back. paratus and the cubical contents of each vessel. Undoubtedly, the main elements necessary for a determination of the producing capacity are the size of the stills, mash-tubs and cisterns, and the duration of the fermenting period. There is, unquestionably, in the nature of things, a true fermenting period, dependent on the operation of natural processes, a period which may be variant from that selected by a distiller. This period may vary somewhat in different latitudes, but it is everywhere ascertainable, and the Commissioner, we think, is authorized by the 2d section of the Act to prescribe regulations for ascertaining it. By that section he is authorized to adopt and prescribe for use such hydrometers, saccharometers, weighing and gauging instruments, meters, or other means for ascertaining the quantity, gravity and productive capacity of any mash, wort or beer used or to be used in the production of distilled spirits, as he may deem necessary. This is inconsistent with the idea that the notice of the distiller is to determine the producing capacity. And though in his notice he is required to state the time in which he will ferment his mash, and also an estimate of the quantity of distilled spirits which the apparatus is capable of distilling every twenty-four hours, that is his estimate. Nowhere in the Act is any provision made that his statement and estimate shall be obligatory upon the As- the forgery of an instrument to be filed within a 1. Under a law of Texas requiring an affidavit of sessor and his skilled assistant. Nor is there certain time, in order to prevent the instrument beto be found in the Act any rule by which the ing given in evidence, an affidavit filed under such producing capacity of a distillery is to be de-law, later than the time therein mentioned, was properly stricken from the files. termined, except that the Commissioner of Internal Revenue is, by the 2d and 103d sections, empowered to make necessary regulations. The declaration shows that such regulations were made, and they were followed by the Assessor. The survey was made accordingly. If instead of following the instructions given by the Commissioner, the Assessor must adopt a period for fermentation given to him by the distiller-a period which may or may not be a true one; that is, the period within which complete fermentation takes place-it is obvious there can be no certainty in the ascertain

NEILL MCPHAUL, Piff. in Err.,

v.

JOHN W. LAPSLEY.

(See S. C., 20 Wall., 264-288.)

Affidavit, when not filed in time—copy of instrument, when evidence-secondary and parol evidence, when inadmissible.

2. A copy of an original instrument, made by the
officer by whom the instrument was executed was,
by the Spanish law and the law of Texas, “a second
original," and of equal validity and effect with the
prior one, and was properly received in evidence.
3. A party is not permitted to give secondary evi-
dence where it presupposes better evidence within
his reach, which he fails to produce.
4. Parol evidence to impeach an instrument more
than forty years old which had never been question-
ed by the grantors, and under which large and di-
versified interests had grown up, of one who claimed
under a hostile title; held, properly excluded.
[No. 301.]

Argued Apr. 17, 20, 1874. Decided May 4, 1874.
IN ERROR to the Circuit Court of the United

ment and determination of the actual produc-IN States for the Western District of Texas.

ing capacity of the distillery, and the object which the law has in view will be defeated. At most, all the Assessor and his assistant can do will be to ascertain the actual product. The possible product cannot be ascertained; yet, as we have had occasion to say heretofore, when giving a construction to this Act of Congress, both the producing capacity and the quantity of spirits actually produced are made by the law measures of taxation, and provision is made for the determination of each. U. S. v. Singer, 15 Wall., 111 [82 U. S., XXI., 49].

But without pursuing the subject further, we have said sufficient to show that in our opinion the notice given by the distiller of the time he will ferment each tub of mash or beer does not control the survey. The Assessor must determine and report the true actual capacity, and

Lapsley, the defendant in error, sued McPhaul, Goode and others, in the District Court of McLennan County, Texas, to recover possession of eleven square leagues of land, and damages for illegal occupation, etc. Goode severed, and there was a judgment in his favor according to an agreement between him and Lapsley. McPhaul, for himself and children, and Ann E. Tipton, another of the original defendants, for herself and minor children, answered. claiming title to one league of land under a grant to Peter Fleming, made in 1835, by the Government of Coahuila and Texas, and disclaiming ti tle to all except that league; also, that they had bought an outstanding title from one Tomas de la Vega. Appended to the answer was a statement of de la Vega that he had sold this

league to the defendants, Sarah A. McPhaul and Ann E. Tipton, in 1850. On the petition of Lapsley the suit was transferred to the Circuit Court of the United States. The suit was dismissed as to all defendants except N. A. McPhaul.

The portions of the charge of the court set out in the bill of exceptions, are as follows:

claims possession of the league in the right of his wife and as his homestead, but claims no title in himself; that his minor children now live with him on the league aforesaid, and that upon such testimony the defendant moves the court to charge the jury as follows:

Upon the trial, verdict and judgment were If you believe from the testimony that the defor the plaintiff, and the case was brought to fendant, N. A. McPhaul, is in possession of a this court by writ of error. The exceptions re-league of land granted to Peter Fleming by the lating to the evidence are sufficiently explained government, and that said league is in conflict in the opinion. with the land claimed in plaintiff's petition; that Peter Fleming is dead, and that McPhaul intermarried with a daughter of Peter Fleming, and that he, as the husband and head of the family, took possession of the league of land in the right of his wife, who inherited it from her father; that his wife is dead and that she left children, and that those children are minors and live in the family of their father on the league, then you must find for the defendant, McPhaul, because these are not proper parties in this suit. Refused.

Be it remembered, that, upon the trial of this cause the plaintiffs having read in evidence to the jury the testimonio purporting to be the testimonio of the power of attorney from "Tomas Vega" and others to Samuel M. Williams, of date May 5, 1832, as a paper properly authenticated and recorded in McLennan County, Texas, and duly filed and notice given of filing in this cause, and upon such evidence the defendant, N. A. McPhaul, moves the court to charge the jury as follows:

1. In your deliberation in this cause you must disregard the paper which purports to be the testimonio of a power of attorney, from Tomas Vega to Samuel M. Williams, of date May 5, 1832, and to charge that

2. Unless you believe from the evidence before you that the original grantee of the land sued for, and the person making the instrument, if it was ever made, purporting to be a power of attorney from Tomas Vega to Samuel M. Williams, are one and the same person, then you must disregard the said instrument.

3. Unless you believe, from the testimony before you, that the original grantee of the land sued for, and the person making the instrument, if ever made, purporting to be a power of attorney from Tomas Vega to Samuel Willams, are one and the same person, you must find for defendant.

The first of the within instructions asked for is refused.

The second and third are given, with this qualification, viz.: that if the jury believe from the evidence, documentary or oral, that the original grantee of the land was known indifferently by the name of Tomas Vega and Tomas de la Vega, then the presumption is that he is the same person who signed the power of attorney to Samuel M. Williams; and you will so consider, unless satisfied such is not the fact from other evidence. *

*

*

*

*

Defendant moves the court to charge the jury that the decree of the District Court of Falls County, Texas, precludes the plaintiff, Lapsley, from recovering of the defendant in this case the eight hundred acres of land described in said decree and decreed to Sarah A. McPhaul, wife of the defendant, in her lifetime.

This charge is prayed upon the certified copy of the decree rendered in said case, and which the court refused to admit in evidence to the jury, on the ground that the same is not authenticated as required by law; because the best evidence of the existence of such a decree as that offered, is the copy of the original judgment under the certificate and seal of the clerk of the court wherein said decree was rendered; and because there was no pleading by the defendant under which the decree could be offered in evidence, the decree sought to be offered in evidence having been rendered after the suit had commenced.

Be it remembered, that, on the trial of this cause, the court charged the jury on its motion, as follows:

That the documentary evidence read then in evidence by plaintiff, to wit: the original grant from the government to Tomas de la Vega of date 1833, and the testimonio of a power of attorney from Tomas Vega to Samuel M. Willams, of date 1832, and other deeds, the validity *of which the defendant did not question, formed a claim of title from the government to the plaintiff.

Be it remembered, that on the trial of this cause it appeared in evidence by a witness, E. J. Gurley, that the defendant, N. A. McPhaul, is in possession of a league of land known as the Peter Fleming league, which is in conflict with the eleven leagues set out in plaintiff's petition; that N. A. McPhaul was a married man in the year 1857 or 1858, and about that time, with his family, settled upon and made his home upon said Fleming league, and from thence until now has lived upon said league (Fleming) as his homestead; that McPhaul's wife was the daughter of Peter Fleming, the original grantee of said league of land; that said Peter Fleming died long since; that the Fleming league is a colony league grant, made by the government in 1835; that McPhaul's wife died a few years since and left minor children; that McPhaul

And further; the court orally and in writing charged the jury that the admission in evidence to them of the testimonio of May 5, 1832, is prima facie evidence of its genuineness.

And further; in substance and at the request of plaintiff, that there was before them no evidence that the testimonio is not genuine, except the evidence of difference of name.

To which charges defendant excepted on the ground that the charge took from the jury the question of the identity of the grantee of the eleven leagues of land, and the maker of the testimonio.

And on the further ground, that the admission of the testimonio in evidence to the jury is no evidence of its genuineness.

within one day after such notice file an affidavit stating that he believes such instrument to be forged." Sec. 90, Act 13th May, '46, p. 387, referred to in Hanrick v. Barton, 16 Wall., 166 [83 U. S., XXI., 350].

The affidavit was filed by Mussina as the attorney of De la Vega. It sets forth that the instrument of writing purporting to be a testimonio or second original of a power of attorney from Tomas de la Vega, by the name of Tomas Vega, to Samuel M. Williams, dated May 5, 1832, was, as affiant verily believed, a forgery. The testimonio was one of the plaintiff's files in the case for the purposes of evidence upon the trial. The object of the affidavit was to throw the burden of proof upon the plaintiff.

And the jury having come into court, the court then charge them as follows (orally): that the testimonio, the original and copy of which is before you, of May 5th, 1832, is evidence before you for your consideration, and it is not necessary that the signature of Tomas de la Vega, in his own proper handwriting, should be on the testimonio before you; and if Tomas de la Vega did sign the original of the testimonio and the testimonio before you, in the office at Sal-ants on the 16th of January, 1872. The affidavit tillo, then the testimonio given you in evidence, with proof of a conveyance made by Williams, the attorney, by virtue thereof, would devest La Vega of his lands, to wit: the eleven (11) leagues, set out in plaintiff's petition.

To said charge of the court the defendant excepts, on the ground that the jury already had full instructions from the court on the points in the cause; because said charge called the minds of the jury from the consideration of the want of genuineness of the testimonio arising from a failure of plaintiff to show the existence of, or the genuineness of, any protocol in Saltillo, and the want of its record for twenty years, all of which exceptions being considered, were overruled, and defendant excepts, and tenders bill of exceptions.

Messrs. Durant & Hornor, for plaintiff in

error.'

Messrs. P. Phillips and C. Robinson, for defendant in error.

Mr. Justice Swayne delivered the opinion of the court:

This is a writ of error to the Circuit Court of the United States for the Western District of Texas.

The action was ejectment. Lapsley was the plaintiff. The plaintiffs in error were the original defendants. In the progress of the cause the plaintiff dismissed the action as to all of them except N. A. McPhaul, and judgment was rendered against him for their costs. He recovered against McPhaul, and this writ of error is prosecuted to reverse the judgment.

The writ should have been in the name of McPhaul alone as the plaintiff in error. But as the defect is clearly amendable under the 3d section of the Act of June 1, 1872, 17 Stat. at L., 196, it is unimportant.

There are numerous assignments of error. Except those involving points which we deem material to be considered, we shall pass them by without remark.

The affidavit of Mussina was properly stricken from the files.

The law of Texas provides as follows: "Every instrument in writing (properly recorded) shall be admitted as evidence without the necessity of proving its execution, provided that the party who wishes to give it in evidence shall file the same among the papers of the suit three days before the trial and give notice to the opposite party of such filing, and unless such opposite party, or some other person for him, shall

He had given the proper notice to the defend

was filed, not within one day thereafter, as the
statute required, but on the 5th of February
following, while the trial was in progress.
la Vega, in whose behalf it was filed, was not
a party to the record.

De

It is insisted that the testimonio was improperly admitted to record, and that it was not properly admitted in evidence. These objections present questions of local law.

The instrument is as follows:

It bears date on the 5th day of May, 1832, and sets forth that Thomas Vega, Rafael Aguerre, and José Ma. Aguerre, of the City of Leona Vicaria, appeared before Juan Gonzales, regidor of that city, and declared that they conceded to Samuel May Williams, a resident of the City of Austin, full power, "in order that in the names of the appearers" he might proceed to sell the lands therein described. And to confirm all that may be granted and executed, the appearers bind themselves, their persons and their property present and to come." It concludes, "Thus have they granted and signed it in presence of these witnesses, Antonio Espinosa, Rafael de Leon, and Francisco de la Fuentes Gonzales, residents of this city.

"I attest: Juan Gonzales, Thomas Vega, José Ma. Aguerre, Rafael Aguerre."

Affidavits are annexed upon which it was recorded, in McLennan County, September 7, 1856, and again, September 22, 1858; in Falls County, October 6, 1859, and in Williamson County, October 15, 1859. The affidavits were all sworn to in Texas. Among them are, one proving the handwriting of Gonzales and the attesting witnesses-Moral and Ortiz-and that, if living, they are residents of Saltillo, in the State of Coahuila; one by Gonzales, made July 13, 1857, proving that the testimonio was executed by him at the personal request of the grantors named therein and in their presence. and that his signature thereto, and those of Moral and Ortiz, are all genuine; that Thomas de la Vega executed a certain other power of attor