NOTES

ON THE

UNITED STATES REPORTS.

XII WALLACE.

12 Wall. 1-18, 20 L. Ed. 272, THE COLLECTOR v. HUBBARD.

Suits to recover moneys illegally exacted as internal revenue duties cannot be commenced in Circuit Courts except where taxpayer and collector are citizens of different States.

Approved in Cincinnati etc. Co. v. Bettman, 102 Fed. 17, dismissing suit against revenue collector, parties citizens of same State and amount less than two thousand dollars.

Collectors of internal revenue being required to pay all moneys collected by them into treasury of United States, the law, in absence of statutory regulations, implies no promise on his part to repay a taxpayer, even when the assessment was erroneous or illegal.

Approved in Lewis Pub. Co. v. Wyman, 182 Fed. 17, 104 C. C. A. 453, questioning whether money exacted by and paid to postmaster for postage could be recovered back by action against him.

Under acts of Congress, a taxpayer may, if revenue tax is illegal, maintain an action against collector to recover the amount.

Distinguished in Chesebrough v. United States, 192 U. S. 260, 48 L. Ed. 432, 24 Sup. Ct. 264, holding written application to internal revenue commissioner to return money spent in voluntary purchase of revenue stamps not an appeal required by Rev. Stats., § 3226.

Under act of 1866, suits to recover taxes, paid under illegal assessment, are absolutely prohibited until taxpayer shall appeal to commissioner of internal revenue.

Approved in Commissioners of Sinking Fund v. Buckner, 48 Fed. 541, and Hubbard v. Kelley, 8 W. Va. 48, 49, both following rule; Hastings v. Herold, 184 Fed. 762, applying rule to special taxes assessed and col

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lected under law regulating manufacture and sale of oleomargarine; De Bary v. Dunne, 162 Fed. 962, where, before payment of tax, a claim for its abatement was presented to commissioner and rejected, same was equivalent to an appeal.

There is no vested right at common law for the recovery of money paid, under protest, for illegally collected taxes.

Approved in Kahn v. Herold, 147 Fed. 580, where, at time executors paid internal revenue inheritance tax on life estate under protest, they did not know life tenant had died, payment was not voluntary; Georgetown College v. District of Columbia, McAr. & M. (D. D.) 46, where party paid tax knowing it was illegal, such payment was voluntary notwithstanding protest; Union Pacific R. R. Co. v. Commissioners of Dodge County, 98 U. S. 544, 25 L. Ed. 197, taxes paid under protest are not necessarily paid involuntarily; Wright v. Blakeslee, 101 U. S. 179, 25 L. Ed. 1050, there must be protest in some form when payment is involuntary.

Refund by or recovery from United States of internal revenue tax.
Note, Ann. Cas. 1916A, 301, 307, 310.

Under act of 1866, taxpayer had until after appeal to commissioner was decided in which to sue for taxes paid under protest, but, if decision was postponed longer than six months, he might sue within one year from time the appeal was taken.

Approved in Cheatham v. United States, 92 U. S. 90, 23 L. Ed. 563, reviewing practice on appeals of this character; Francis v. Slack, 4 Cliff. 189, Fed. Cas. 5041, holding suit barred for failure to sue in one year. Taxable personal income under income tax statute. Note, Ann. Cas. 1913C, 1008.

Legal meaning of "otherwise." Note, Ann. Cas. 1916C, 649.
Legal meaning of "any." Note, Ann. Cas. 1916E, 31.

12 Wall. 19-30, 20 L. Ed. 255, STURGES v. THE COLLECTOR.

Where act provided that all goods, the growth of product of countries east of Cape of Good Hope, excepting certain named, were, when imported from places west of the Cape of Good Hope, to be taxed ten per cent ad valorem in addition to the duties imposed when imported directly from the place of production, a commodity which was free from duty when imported from Persia, was taxable ten per cent ad valorem when imported from London.

Approved in Russell v. Williams, 106 U. S. 627, 27 L. Ed. 222, 1 Sup. Ct. 412, following rule; Powers v. Cornly, 101 U. S. 790, 25 L. Ed. 806, holding opium imported from Persia, via England, subject to additional

duty.

12 Wall. 31-47, 20 L. Ed. 251, THE MARIA MARTIN.

Appeals in admiralty are subject to same rules, regulations and restrictions as in case of writs of error.

Approved in Green County v. Thomas' Exr., 211 U. S. 602, 53 L. Ed. 345, 29 Sup. Ct. 168, writ of error and assignment of errors accompanying it set forth all questions of which appellate court was bound to take notice; Swager v. Smith, 194 Fed. 765, 114 C. C. A. 482, where appellee failed to take cross-appeal, he could not give court jurisdiction to review error by asserting it in his brief; O'Neil v. Wolcott Min. Co., 174 Fed. 535, 27 L. R. A. (N. S.) 200, 98 C. C. A. 309, in action to obtain transfer of stock upon books of company, defendant who failed to appeal could not challenge rulings of court below that were too favorable to him; dissenting opinion in Aetna Indemnity Co. v. J. R. Crowe etc. Mining Co., 154 Fed. 567, 83 C. C. A. 431, majority upholding instruction of lower court in action on employer's liability bond that employer's statement was confessed by the pleadings, where defendant in error sued out no writ of error.

Where only one party appeals, the other cannot be heard except in support of decree from which appeal is taken.

Approved in The Mabey, 13 Wall. 741, 20 L. Ed. 474, following rule; Bolles v. Outing Co., 175 U. S. 268, 44 L. Ed. 158, 20 Sup. Ct. 96, denying party not taking out writ right to complaint of adverse rulings of lower court; Board of Commissioners v. Hurley, 169 Fed. 94, 94 C. C. A. 362, on appeal by creditor of bankrupt, court had no jurisdiction of trustees who did not sue out writ of error; Guarantee Co. of North America v. Phenix Ins. Co., 124 Fed. 172, 59 C. C. A. 376, holding appellee barred from assigning cross-errors; The Indrani, 101 Fed. 597, 41 C. C. A. 511, assuming fact established, court finding libelant negligent, and no exception taken.

Distinguished in Munson S. S. Line v. Miramar S. S. Co., 167 Fed. 964, 93 C. C. A. 360, appeal in admiralty opened whole case for trial de novo, and fact that one party failed to appeal did not preclude court from directing entry of decree more favorable to him.

Where officers and crew of vessel in tow, as well as officers and crew of tug participate in navigation of vessels, and a collision with another vessel ensues, the tug alone or tow alone, or both jointly, may be liable according as one or both are deficient in skill, negligent or inattentive.

Approved in Shaver Transp. Co. v. Columbia Contract Co., 208 Fed. 348, collision in Columbia River between barge made fast to a tug and a meeting steamer with tow alongside was fault of tug where she was on wrong side of channel, though vessels had exchanged passing signals; The Imperial, 13 Sawy. 643, 38 Fed. 617, 3 L. R. A. 237, holding tug not liable for injury caused by collision of tow with another vessel; The

Frank Moffat, 2 Flipp. 294, Fed. Cas. 5060, and Westhoff v. The Bark Oluf, 3 Woods, 669, Fed. Cas. 17,449, both holding tow not liable where collision occurred through fault of tug; The Express, 46 Fed. 861, holding both tug and tow liable.

Liability of tow for collision with another vessel. Note, 19 Ann.
Cas. 303.

When a tug is under charge of her own master and crew, and in the usual and ordinary course of her employment undertakes to transport another vessel which for the time being has neither master nor crew on board, from one point to another, over waters where such accessory motive power is necessary, or usually employed she is legally responsible for the navigation of both vessels.

Approved in The W. H. Clark, 5 Biss. 307, Fed. Cas. 17,482, ordinarily tug is responsible for both tug and tow; The Chickasaw, 38 Fed. 361, arguendo.

them.

Where both vessels are at fault, damages must be apportioned between

Approved in The Pegasus, 22 Blatchf. 10, 19 Fed. 48, The Columbia, 23 Blatchf. 270, 25 Fed. 845, French v. The Victoria, 9 Fed. Cas. 804, and The Oregon, 14 Sawy. 450, 45 Fed. 68, all following rule.

In this case the court affirmed a decree directing damages to be divided between the offending vessels and requiring each to pay its own costs.

Approved in The Columbia, 23 Blatchf. 270, 25 Fed. 845, The Hercules, 51 Fed. 453, 454, and Vanderbilt v. Reynolds, 16 Blatchf. 86, 90, 91, Fed. Cas. 16,839, where the aggregate costs were divided; The Pegasus, 22 Blatchf. 10, 19 Fed. 48, where the court divided the damages but disallowed the costs below.

Even flagrant fault committed by one of two approaching vessels does not excuse the other from adopting every precaution, and if collision results through its failure so to do damage must be apportioned between the two.

Approved in The Albert Dumois, 177 U. S. 254, 44 L. Ed. 759, 20 Sup. Ct. 600, dividing liability, steamer failing to stop and reverse observing faulty movement of other; United States v. Erie R. Co., 172 Fed. 57, 96 C. C. A. 538, where one vessel failed to keep her speed as required by rules and her agreement, the other was also at fault for not governing her actions accordingly; The Mauch Chunk, 154 Fed. 184, 83 C. C. A. 276, applying rule to vessel in fault for failure to keep efficient lookout, and which insisted on privilege given her by starboard-hand rule, when it was manifest departure therefrom was necessary to prevent collision; Hall v. Chisholm, 117 Fed. 813, 55 C. C. A. 31, dividing damages, steamer under poor control striking raft improperly managed by tug; The Sunnyside, 91 U. S. 214, 23 L. Ed. 304, The America, 92 U. S. 438, 23 L. Ed.