Connel should be justified in the sight of the plaintiffs and defendants, and that said McConnel should render a just and true account of all merchandize so delivered by the plaintiffs to him, and of sales made of such goods by him, as often as the plaintiffs should call for such account. The defendants covenanted that McConnel should, faithfully and honestly, fulfil all that he had engaged, by an article with the plaintiffs, dated 18th April, 1825, and that the defendants would be bound for the merchandize delivered under said article, as if they had been formerly bound with their co-defendants, and others, for the same, for the faithful performance of the same; which article of 18th April, 1825, is then recited in the delaration, containing various stipulations for selling and accounting for merchandize, and for articles received in barter for the same, at an allowance of fifteen per. cent. upon the proceeds of sales.

The declaration then avers, that on the 28th of June, 1825, plaintiffs deliv. ered a large amount of merchandise to MConnel, to be sold on commission, under the contract. It then avers, that McConnel did not, for one year from the 27th June, 1825, "honestly, and fairly account with, and pay the said plaintiffs, the money for which the said McConnel sold the said goods, wares, and merchandise; but, on the contrary thereof, said McConnel, within one year from the 27th June, 1825, sold a large quantity of the said merchandise, and received for the same a large sum of money, to wit, the sum of eighteen hundred dollars, which he neglected and refused to pay," &c. assigning various other breaches, under the contract of June 27, 1825, as including the contract of April 18, 1825, concluding with an averment that McConnel had failed to comply with the terms of the contract, "although said plaintifis afterwards, to wit, on the 17th day of April, 1826, at county aforesaid, and within. one year from the 27th day of June, 1825, called on said McConnel, for that purpose." The declaration contains no averment that the defendants had no. tice of any failure alleged in the declaration.

The defendants pleaded, first, that they had performed their covenants.

Second. That on the 17th April, 1826, McConnel settled and accounted with the plaintiffs for all the goods delivered, and for the profits of sales, and gene. rally of all matters arising on the contract, and delivered to them goods and merchandise of the value of fifteen hundred dollars, and gave separate promissory notes for sums specified, to individuals named by mutual agreement between the plaintiffs and McConnel, in full satisfaction of the whole contract, and for the merchandise delivered by plaintiffs to McConnel, and for the profits arising on the sale.

The plaintiffs joined issue on the plea of general performance. And to the special plea, they also replied, negativing the allegations of the plea, and concluded by tendering an issue to the country. To this replication the defendants demurred.

H. Stanbery, for plaintiffs. T. Ewing, for defendants.

By the COURT.

It is a general rule, that, where a matter does not lie more properly in the knowledge of one of the parties than the other, notice is not requisite: therefore,

if a man is bound by obligation or covenant, or promises to do a thing, on the performance of an act by a stanger, notice need not be alleged, for it lies in the defendant's knowledge, as much as the plaintiff's, and he ought to take notice at his peril. 2 Saund. 62, n. 4; 2 Chitt. 81; 11 John. R. 61.

The defendants have covenanted, in general terms, to hold themselves accountable for the fidelity of McConnel, and that he should render a true account for one year; and if it had been the intention of parties, that the obligors should have notice, that should have been inserted in the condition. A party who covenants generally, to do a particular thing, is bound at all events. Duffield v. Scott, et. al. 3 J. R. 374. The plaintiffs had less to do with the supervision of McConnell's conduct than the defendants; nor had they any better means of ascertaining that he was converting the goods to his own use. The plaintiff's did not reserve the power of visitation, nor did they covenant to notify the defendants, of McConnel's mode of transacting the business. The defendant, in consideration of a ruff-band delivered to him, promised to pay him, on the day of the plaintiff's marriage, three pounds, and alleged he was married such a day, yet although often requested he had not paid. There was judgment of nihil dicit and enquiry. A motion was made in arrest of judgment, because there could be no breach of promise unless notice was given of the plaintiff's marriage; but Hutten, Harvey, and Yelverton adjudged it to be good enough, for the defendant, at his peril, ought to take notice, and the plaintiff need not show he gave notice of the marriage. Croke, Car. 34. In the case of Norris, et al. v. Powell, (14 East. 510) a bond had been taken by the commissioners of the land tax, for the fidelity of a collector. It was objected that no notice had been given to the surety, of the collector's default, nor demand of payment `made, until after the principal had been discharged for misconduct; but both points were overruled by the court. Fell on Guaranties, 224. The defendants do not assume the position, that there is any express covenant to give notice, or even covenant in law to do it; but rather place their case upon principles of commercial law. But certainly there is no just analogy between principal and surety, in a bond, and the drawer or endorser of a bill of exchange, so far as legal principles fix their liabilities. The liability of an endorser is conditional, and entirely arbitrary. His undertaking is conditional, that he will be holden, upon demand and refusal of the drawer, and notice of those facts. This condition, though not expressed, is of the essence of the contract. There is no such contract implied in sealed instruments. If parties wish to have, and give notice, they must so covenant, and then the non-performance might be assigned as a breach. As this instrument stands, there is no express covenant to give notice to the defendants, of McConnell's default, nor are the covenants such as to raise any in law. From the nature of the covenants, the defendants were bound, at their peril, to take notice of the breaches.

Demurrer to the replication overruled, and costs taxed to the defendants since filing, and the cause continued for enquiry of damages.

RAGUET t. WADE.

The statutes imposing a tax upon merchants are not unconstitutional.

The declaration is for taking, and carrying away goods, &c. of the plaintiff, to the value of five hundred dollars.

The defendant pleads, first, the general issue.

Second.

That the defendant was treasurer of the county of Hamilton, and, as such, was authorized, by law to collect all taxes assessed by and under the authority of the state of Ohio, within said county. That at the time of seizing, and taking said goods, the plaintiff was a merchant, selling goods, wares, and merchandise, within said county, and was subject to pay a tax upon his capital employed, &c. and being so subject, was taxed in the sum of dollars, under, and by virtue of the laws aforesaid; and said tax, being so laid and assessed, was placed in the defendant's hands, as treasurer, to collect; and the plaintiff wholly neglecting, and refusing to pay the same, defendant entered, &c. and took, &c. and disposed of said goods, according to law, which is the same, &c.

The plaintiff replies that his capital was employed in importing into this state, from other states, and that he was vending, by wholesale and retail, divers, &c. the growth, &c. of foreign countries, and other states, &c. and he, the plaintiff, imported direct from said states, in bulk, and in packages put up by the manufacturer, none of which, by law, were the subject of taxation, by the state authority, &c.

To this replication there is a general demurrer and joinder. The question submitted, was, whether the law of the state, imposing a tax upon the capital employed by merchants, is constitutional.

Hammond, for plaintiff. Wude, for defendant.

Opinion of the COURT, by Judge SWAN.

This presents an enquiry, of acknowledged delicacy, concerning the constitutional powers of the general and state governments. The question is deeply interesting to this state, as her citizens must depend upon this general legislative authority for the preservation of their faith, and the completion of the public works they have undertaken. It is imposing, as it involves the exercise of sovereign power.

The acts of the legislature, supposed to be in conflict with the constitution and laws of the United States, were passed February 3d, 1825, and January 17th, 1826, and, so far as concerns the present inquiry, are in these words: "all persons trading in foreign or domestic goods, wares, and merchandise, or drugs and medicines, within this state, whether the capital employed in such trade shall be owned within the state or elsewhere, shall be considered merchants, and as such shall be classed according to the amount of annual capital, by them respectively employed." The act of January 17th, 1826, is exactly in the same words, except "they are to be entered on the general list for taxa

tion, and as such shall be assessed according to the amount of capital by such merchants respectively employed," &c. This is a part of an equitable system of taxation, adopted to meet the disbursements for canals, as well as to defray the general expenses of the government. The right of taxing capital employed in merchandise, of licensing tavern keepers to vend foreign and domestic liquors, and of regulating retailers, pedlars and hawkers, has been exercised without question as to its constitutional existence, from the foundation of the state government. Whatever then may be the effect, it would be unjust to impute to the legislature any intentional invasion of the laws of Congress, or the constitution of the United States.

The plaintiff insists that these acts of the legislature are repugnant to Art. 1, Sec 10, of the constitution of the United States, which declares that no state shall, without the consent of Congress, lay any imposts or duties, on imports or exports, except what may be absolutely necessary for executing its inspection laws; and also to Art. 1, Scc. 8, which says Congress shall have power "to regulate commerce with foreign nations, and amongst the several states, and with the Indian tribes."

The powers of the general and state governments, under these clauses of the constitution, have been so often and so ably discussed, and the principles so profoundly considered by the Supreme Court of the United States, that nearly the whole grounds have been occupied, and but little remains for us other than the application of those principles as settled to the case presented by the pleadings. The powers of the different governments under the first article, section tenth of the Constitution, are very candidly and ably examined in the thirty second number of the Federalist, by Mr. Hamilton. This fair and profound commentary upon the constitution, has deserved and received the approbation of the highest judicial tribunal in the nation. The power of the states to impose taxes on all articles, other than exports or imports, is there contended to be "manifestly a concurrent and co-equal authority," &c. There is plainly no expression in the granting clause, which makes that power exclusive in the union. There is no independent clause or sentence which prohibits the states from exercising it. So far is this from being the case, that a plain and conclusive argument to the contrary is deducible from the restraint laid upon the states in relation to the duties on imports and exports. This restriction implies an admission, that if it were not inserted, the states would possess the power it excludes; and it implies a further admission, that as to all other taxes, the authority of the states remains undiminished. In another view it would be both unnecessary and dangerous; it would be unnecessary, because if the grant to the union of the power of laying those duties, implied the exclusion of the states, or even their subordination, in this particular, there could be no need of such restriction; it would be dangerous, because the introduction of it leads directly to the conclusion which has been mentioned, and which, if the reasoning of the objectors be just, could not have been intended. I mean that the states in all cases to which the restriction did not apply, would have a concurrent power of taxing with the union, In the case of Sturges v. Crowninshield, (4 Wheat. 122,) one of the principles recog nised, was, that the mere grant of a power to Congress, did not imply a prohibition on the states to exercise the same power; but wherever the terms in which a power is granted to Congress, or the nature of the power required that it

should be exercised exclusively by Congress, the subject is as completely taken from the state legislatures, as if they had been expressly forbidden to act upon it. This leaves a class of cases in which the general and state governments have co-ordinate, and concurrent powers of legislation. The states were, therefore, not forbidden to pass bankrupt laws, provided they should contain no principle which would violate the tenth section, of the first article of the constitution of the United States.

In the case of Gibbons v. Ogden, (9 Wheaton, 1,) it was decided that the power to regulate commerce, was the power to prescribe the rule by which commerce was to be governed; that it was complete in itself; might be exer. cised to its utmost extent; and had no limitations other than those prescribed in the constitution. But the court say, "the grant of the power to lay and collect taxes, is like the power to regulate commerce, made in general terms, and has never been understood to interfere with the exercise of the same power by the states, &c. The power of taxation is indispensable to their existence, and is a power, which in its own nature is capable of residing in, and being exercised by, different authorities at the same time," p, 199. The co-ordinate authority seems a necessary result of the division of sovereign power. The self-preservation of both governments requires the exercise of the taxing power; and it seems admitted by the whole tenor of the constitution. The principle appears established beyond controversy, that the states can tax all articles concurrently with the general government, except imports and exports, or where it will interfere with the power of Congress, to regulate commerce. The case of Brown and others v. the state of Maryland, (12 Wheat. 419,) is supposed by the plaintiff to be an authority exactly in his favor; and that the principles decided require this court to pronounce the law under consideration, unconstitutional and void. The law of Maryland required "importers of foreign articles or commodoties, of dry goods, wares, or merchandises, by bulk or package, &c. and other persons selling the same by wholesale, bale, or package, &c. before they were authorized to sell, to take out a license, &c. for which they should pay fifty dollars." The penalty and forfeiture were the amount of the license, and one hundred dollars to be recovered by indictment. The provisions of this law were held to be in conflict with the powers vested in the Congress by the United States, as well as that article of the constitution, which inhibits a state from laying any duties upon imports. The court held the principle to be sound, that a grant to import included a power to sell, subject to some limitation, and that the article imported, as well as the importer were constitutionally protected from local legislation. "Any penalty," says the court, "inflicted on the importer, for selling the article in his character of importer, must be in opposition to the act of Congress which authorizes importation. Any charge on the introduction and incorporation of the articles into, and with the mass of property in the coun try, must be hostile to the powers given to Congress to regulate commerce, since an essential part of that regulation, and the principal object of it is to prescribe the regular means of accomplishing that introduction and incorporation." The powers of a state to tax its own citizens, or their property within its jurisdiction, are admitted to be sacred; but these cannot be exercised so as to obstruct the operations of an act of Congress, or defeat their constitutional right to regulate commerce. The correctness of these views are evident from the whole