Hammer v. Kaufman.

which the plaintiff was not bound to state. The authorities, I think, fully sustain this position. Gould's Pleadings, p. 177, sec. 17; p. 179, sec. 21. In 2 Chitty's Pleading, 10 ed. 252, it is laid down as a rule that it is enough for each party to make out his own case or defense. He sufficiently substantiates the charge or answer for the purpose of pleading, if his pleading establish a prima facie charge or answer. He is not bound to anticipate, and therefore is not compelled to notice and remove, in his declaration or plea, every possible exception, answer, or objection which may exist, and with which the adversary may intend to oppose him.

But there is another well-settled principle of special pleading that has a direct bearing on this question. It is not necessary to state matter which should come more properly from the other side. Stephen on Pleading, 350. The author says the meaning of this is, that it is not necessary to anticipate the answer of the adversary. And in 2 Chitty, 223, it is laid down, that matter in defeasance of the action need not be stated, and whenever there is a circumstance, the omission of which is to defeat the plaintiff's right of action, prima facie well founded, whether called by the name of a proviso, or a condition subsequent, it must, in its nature, be matter of defense, and ought to be shown in pleading by the opposite party. Now the application of this rule to the question before the court is obvious. The ground of demurrer to the declaration is, that the plaintiff does not allege the non-user of his improvement by the defendants on or after the 1st of March, and that such nonuser, under the agreement, was to release the defendants from their obligation to pay. But clearly this non-user, if such was the fact, was within the knowledge of defendants more properly than of the plaintiff, and must be set forth as matter of defense by plea. The object of all pleading is to advise the adversary party of what is relied on to sustain or defeat the suit. Now it clearly was not necessary for this plaintiff to notify the defendants of the abandonment of the use of the plaintiff's improvement, on the 1st

Hammer v. Kaufman.

of March, by an averment to that effect in the declaration; for the plain reason that whether the defendants did or did not cease the use on or before that day was within their knowledge. Perhaps a fair construction of the clause of the agreement under consideration would be, that the nonpayment of the sum agreed on as fixed damages on the day named, was to be treated as notice of the non-user by defendants; but in the absence of express notice of that fact, the plaintiff was not bound to regard this negative evidence as conclusive. He might have reason for the conclusion that the failure to pay was from some other cause than the abandonment of the use of the plaintiff's improvements.

Without going more fully into the consideration of the questions raised on the demurrer, my opinion is clear that it must be overruled. If the views stated are correct, there is no variance between the declaration and the agreement, as the plaintiff was not bound to set forth the condition on which the penalty of the bond was to be payable; nor in making out a prima facie cause of action, was he bound to aver any other breach than the non-payment of the sum named as the penalty. In stating these views, I have great satisfaction in knowing that if erroneous, my conclusions can work no injustice to the defendants. If they have a good defense to this action on the merits, the way is plain for making it available to them. And I may venture to intimate, that the final disposition of the case on pleas exhibiting fully the grounds of their defense, ought to be more satisfactory to the defendants than a decision based on the legal points raised by this demurrer.

The demurrer is overruled, and the defendants have leave to plead.

United States v. Five Hundred Barrels of Whisky.

(DISTRICT COURT.)

THE UNITED STATES v. FIVE HUNDRED BARRELS OF WHISKY.

A district attorney of the United States is entitled to two per cent. on all moneys collected, or realized, in any proceeding under the revenue or internal revenue laws of the United States conducted by him. While a proceeding in rem, to forfeit distilled spirits for non-compliance with the provisions of the internal revenue laws of the United States, was pending in the United States District Court, the owners of said spirits effected a compromise of the case with the secretary of the treasury by the payment of a large sum of money, and accrued costs, the case being dismissed and the property released to the owners by order of the secretary. Upon motion of the district attorney, for a retaxation of costs in the case, to include a commission to himself of two per cent. upon the sum paid to the secretary of the treasury: Held, that under section 11 of the act of March 3, 1863, the district attorney was entitled to receive from the United States two per cent. upon the sum paid by the terms of the compromise for the release of the property seized in said proceeding, as well as upon the sum paid as penalties incurred upon said property.

R. M. Corwine, for the motion.

A. F. Perry, for United States.

OPINION OF THE COURT:

This case is now before the court on the application of R. M. Corwine, attorney for the United States in this district, for a retaxation of costs.

The facts necessary to be noticed, in deciding the question before the court, are, substantially, that in September, 1865, five hundred barrels of whisky were shipped from Nashville, Tennessee, by the firm of Stephens & Stone, distillers of spirits in that city, consigned to H. L. Styles & Co., of the city of Cincinnati. After the arrival of the whisky here, it was ascertained by an inspector that the barrels containing the whisky were not branded as required by the internal revenue law, and that there was reason to believe

United States v. Five Hundred Barrels of Whisky.

the whole amount of duties chargeable on the whisky had not been paid at Nashville, and that it had been shipped from that place in violation of law, and was therefore liable to forfeiture. The inspector made complaint in due form, and the whisky was seized, and an information filed in this court praying for its condemnation.

It is not necessary, in considering the question, to notice all the intermediate proceedings in relation to the whisky thus seized. Notwithstanding the certificate of the collector of internal revenue at Nashville, to the effect that the duties had been fully paid by the manufacturers, and that they had not been guilty of any violation of the law in regard to the whisky, such facts were presented to the commissioner of internal revenue at Washington as to induce the suspicion that the manufacturers had practiced a fraud upon the government; and for the ascertainment of the facts in relation to their transactions, Mr. Spooner, the collector for the First congressional district, and Mr. Kimber, an inspector for the same district, were appointed special commissioners by the head of the bureau of internal revenue at Washington, with authority to proceed to Nashville, and institute a thorough investigation of the doings of the firm of Stephens & Stone in connection with their business as distillers, and report the result to the department at Washington. This duty was promptly discharged by those gentlemen, who reported, after full investigation, that said firm had failed to make a full and fair report of the quantity of whisky manufactured by them, and consequently had subjected themselves to heavy penalties, and the forfeiture of all spirits owned by them, as well as their entire manufacturing establishment at Nashville. By this report, it appears that Stephens & Stone were in default in the payment of duties chargeable on the whisky made by them to the large sum of $77,740, and were liable, under the statute, to the payment of $52,260 on penalties incurred by them; making in the aggregate upward of $130,000.

Upon this development, these parties repaired to Wash

United States v. Five Hundred Barrels of Whisky.

ington, and effected a compromise with the secretary of the treasury by the payment of the said sum of $130,000; and an order was therefore made for the discontinuance of the proceedings in this court against the five hundred barrels of whisky, and for the restoration of the same to Styles & Co., on the payment of accrued costs. As one of the conditions of the compromise, it was provided that the percentage due to the district attorney by law, for his services in filing and prosecuting the information in this court, should be paid by the treasury department at Washington. An order was therefore made for the discontinuance of the proceedings in this court, and for the delivery of the five hundred barrels of liquor to the said Styles & Co.

On the presentation of his claim by the district attorney to the secretary of the treasury, he doubted his authority to pay it, and referred the question to the attorney-general for his opinion. That officer decided, in substance, that the question was one involving the legal taxation of costs; was judicial in its character, and to be decided by the court in which the proceeding was brought. The secretary of the treasury thereupon declined to authorize the payment of the claim until there should be a judicial decision as to its legality. In this state of the case, the district attorney has very properly presented the question for the action of this court, on a motion to include his claim as an item in the taxation of costs. He claims, as legally taxable for his services in the case, two per cent. on $130,000, the sum paid into the treasury by Stephens & Stone under the compro.mise that has been referred to, amounting to $2,600.

This taxation is opposed by the learned counsel who has been retained by the collector for the first internal revenue district, probably with the sanction and approval of the secretary of the treasury. The first position in his argument is, that it is not in the competency of the court to reform or amend the taxation of costs, after the dismissal of the information by order of the treasury department, and