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execution the vessel was lying in the harbor of New Orleans, while the bill of exceptions shows that she was then at sea. The court charged the jury that if at the time the defendants signed the charter-party they knew that the ship was at sea, the words “now lying in the harbor of New Orleans” should be regarded as of no significance.

That language in the charter is not a warranty or contract, but a representation ; and if the charterers knew certainly that the vessel was not there, of course they were not deceived or misled by the recital, which was probably part of a printed form that attracted no attention. The evidence on the subject of this knowledge is not in the record, and it is, therefore, to be presumed in favor of the action of the court that it was full and complete. There was no error in this instruction.

The court also charged the jury that as the charter-party fixed no definite time for the vessel to be at New Orleans ready to receive the cargo, the master was bound to use reasonable diligence in bringing her to the port, and was bound to use no more. If he did, the defendants were bound by the contract. If he did not use such diligence, they were not. To this charge also defendants excepted.

To the charge in the abstract there could be no just objection.

But plaintiffs in error argue, in effect, that it was not warranted by the testimony.

The evidence tended to show that the master was compelled to cross the bar at the mouth of the Mississippi and to sail onefourth of the way up the river to the city without the aid of a steam-tug (which was the usual mode of carrying such vessels up to New Orleans), because no such tug was in sight, and that then a tug which offered itself at the request of the defendants was refused because of the exorbitant charge asked for the remaining part of the voyage. The bill of exceptions does not set out all of the evidence, and what is found there is very meagre, especially on this point.

Under what precise circumstances the master refused the aid of the tug which offered its services, to what extent its offer was exorbitant, how it came to be sent there by defendants, and then refused to serve without excessive compensation, are all unknown to us, but were probably clear to the jury. The charge by the court that the master was bound to use due and reasonable diligence furnished the general rule of law. If there was anything in reference to his refusal to employ the tug which made a more definite instruction proper, counsel for defence should have asked for it. But none was prayed.

We are not able to see, therefore, any error in the charge of the court.

A question was asked the master as to what he would have done if the tug-boat had offered to take him up the river at the usual rates, to which defendants objected, and the question being permitted they excepted.

The answer is not given, and we cannot tell, therefore, whether it was favorable to plaintiff or defendants. It is settled law, at least in this court, that under such circumstances it is the evidence given which constitutes the error, if there be one, and this must be shown by the answer. Nailor v. Williams, 8 Wall. 107. We see no error in the record.

Judgment affirmed.

RAILROAD COMPANY v. UNITED STATES.

1. A party claiming a credit which by reason of his laches was not presented to

the accounting officers of the treasury and disallowed in whole or in part by them cannot set it up in an action brought by the United States against

him for the recovery of a debt. 2. By the act of July 13, 1866 (14 Stat. 135, sect. 103 of the act of 1864, as

amended), "every . . . corporation owning ... any railroad . . . engaged or employed in ... transporting the mails of the United States upon contracts made prior to Aug. 1, 1866, shall be subject to and pay a tax of two and one half per cent of the gross receipts” from such service. In a suit against a railroad company to recover said tax no express contract for carrying the mails was proved, but it appeared that the company had been carrying them, and that the services for which it had been paid commenced before Aug. 1, 1866, and continued without interruption until Jan. 1, 1870. Held, 1. That the law implies that a contract was entered into prior to

Aug. 1, 1866. 2. That the company is liable for that tax. 8. A railroad company paid, Aug. 1, 1870, to the holders of its bonds $61,495 as

interest then due. Held, that the company was liable to the United States

to a tax of five per cent on that amount. 4. The “tax of two and one-half per centum on the amount of all interest or

coupons paid on bonds or other evidences of debt issued and payable in one or more years after date," by any railroad company, is a tas on the interest, not as it accrues, but when it is paid.

Tes allegede company, in ad

Error to the Circuit Court of the United States for the Eastern District of Wisconsin.

This is an action by the United States against the Western Union Railroad Company, a corporation of Wisconsin, to recover certain internal revenue taxes alleged to have accrued from Aug. 1, 1862, to Dec. 31, 1871. The company filed a general denial of the allegations of the complaint, and in addition thereto set up a counter claim.

The plaintiff, to maintain the issue on its part, introduced statements from the books of the defendant, which were admitted to be true, from which it appeared that the gross amount of all receipts of the company for the transportation of passengers between Aug. 1, 1862, and July 1, 1864, was $190,863.68; that its entire gross receipts from and after June 30, 1864, until Aug. 1, 1866, were $1,127,685.36; that its gross receipts for fares and carrying the mails, from Aug. 1, 1866, until Jan. 1, 1870, were $605,770.09, and that of the said last amount $61,676.01 were for carrying the mails, and $544,094.08 for fares.

It further appeared from the books of the company, that there were no net earnings subject to tax in this suit. There were entries crediting the agent of its bondholders with interest on bonds of the Northern Illinois Railroad, from July 1 to Dec. 31, 1864, the sum of $38,876.00, and from Jan. 1 to Dec. 31, 1865, a like credit to him for interest on said bonds, $33,648.54; and in the year 1866 a like credit of $24,372.25; upon which the plaintiff claimed that it was entitled to a tax of five per cent. It further appeared from said books that interest on the bonded debt to the amount of $61,495.00 fell due Aug. 1, 1870, and was paid by the company on or after that date; that interest to the amount of $53,767.65 on the bonded debt became payable Feb. 1, 1870, and was paid on or after that date; and that $52,929.37 became due and payable on the bonds Aug. 1, 1871, and was paid on or after that date by the company.

The plaintiff, to further maintain the issue on its part, offered to show by said books that, Feb. 1, 1872, the further sum of $52,423.71 became due and payable on the said bonds, and was paid on or after said date, to which the defendant objected on the ground that said evidence was incompetent and immaterial. The court overruled the objection and the defendant excepted. The plaintiff then showed that the sum of $52,423.71 so became due and payable Feb. 1, 1872, and was paid on or after that date, and claimed and insisted that the plaintiff was entitled to a tax of two and a half per centum on five-sixths of said amount.

The plaintiff then rested, and the defendant called as a witness one Ranney, who testified that he was secretary and treasurer of the company and had charge of its books and papers, and he as their bookkeeper had charge of the books of said company from Feb. 22, 1866; that he had examined the company's books, papers, and files, and found therein no reference to any contract for carrying the mails; that so far as he could ascertain from his examination no such contract was ever made, and that he had no knowledge thereof.

He further testified that that portion of the road between Freeport and Savannah was known and called as the Northern Illinois Railroad, and that the bonds mentioned as Northern Illinois Railroad bonds were issued on that road; that said road was a part of the road operated by the Racine and Mississippi Railroad, and that it was consolidated with the Western Union Railroad in January, 1866, and that all of the earnings of said road for the whole time mentioned in the declaration are included in the books of the company; and that on the consolidation of the said company with the Western Union Railroad Company the latter company succeeded to all its rights, privileges, franchises, and liabilities. That the entries in the books of interest paid on bonds of Northern Illinois Railroad, to wit, $38,876, $33,648.54, and $24,372.25, were made to show the relative rights of the bondholders of the different portions of the entire road, and that in fact no interest was ever paid upon such bonds, except the sum of $2,360.67, and that said accounts still remain open and unsettled upon the books, and that there never were any net earnings of said company to pay interest on said bonds, and that no such interest was ever paid ; but at the time of the change of management, July 1, 1869, he understood that the said bonds were arranged or settled, but in what way he was unadvised. VOL. XI.

86

The defendant then introduced in evidence vouchers for taxes paid by it, amounting to $58,832.23, and they show the payments made from month to month to the collector of internal revenue for the district in which the defendant's office was located, including taxes on account of receipts for transportation of mails.

The defendant also offered and read in evidence in addition thereto a voucher in the words and figures following, to wit:

(Official.)
“ TREASURY DEPARTMENT,

“OFFICE OF INTERNAL REVENUX, “ $3,866.66.]

Washington, Nov. 7, 1865. “ Rec'd from Northern Illinois Railroad Company, by the letter of first instant, 3,866.66 dollars in certificate of deposit 689, issued by First National Bank, Milwaukee, on account of internal revenue tax on interest on bonds.

“ C. H. Parsons,

Cashier Internal Revenue . “ Treasurer Northern Illinois Railroad Company, Racine, Wis.”

“THE First NATIONAL BANK OF MILWAUKEE,

“MILWAUKEE, Wis. « $3,866,66.]

MILWAUKEE, Nov. 1, 1865. “I certify that The Northern Illinois Railroad Co. has this day deposited to the credit of the Treasurer of the United States thirtyeight hundred sixty-six song dollars, on account of internal revenue for taxes on coupons, for which I have signed triplicate receipts. « No. 689.

“H. H. CAMP, Cash'r. (Across the face :) “ Triplicate.

“ This will be retained by the depositor for his own use and security.

“1865, November 1st, Government tax. “ To cash, $3,866.66.

“ Amount paid this day by drift on N. Y. to T. J. Emerson, coll., for tax on coupons rem’ning due Oct. 1, '63, to Aug. 1, '65.—W.V. B.

“Aug. 1, 1865. Tax . . . . . . . . . $666 66

April 1, 2 » . . . . . . . . . 1,000 00
Oct. 1, 1864. „ . . . . . . . . . 1,000 00
April 1, . . . . . . . . . . . 600 00
Oct. 1, 1873. . . . . . . . . . . 600 00”

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