If the interpretation given to the rulings of the supreme court of Missouri by the counsel for defendants is the true one, I do not hesitate to say that this court cannot follow those rulings. The statute, thus construed, would be in direct conflict with a well-settled rule of equity jurisprudence as understood and administered in the federal courts for many years. It would require this court to hold that, in a case where the demand happens to be against an estate, a party who has committed a fraud may consummate it beyond the possibility of remedy by concealing it. This seems to me to be a proposition that no court of equity can, with propriety, maintain, if left free, as this court is, to consider it upon the merits. In cases where the federal courts follow, in equity, the state statutes of limitation by analogy, they do so because equity requires it, and the statutes are found to be in harmony with its general principles.

The rule that the statute of limitations does not run in favor of one who perpetrates a fraud while he conceals it from the party injured, as a general doctrine of equity jurisprudence, is too well settled to require the citation of authorities.

The demurrer to the bill is overruled.

UNITED STATES v. LOUP.

(Circuit Court, E. D. Missouri. April 3, 1880.)

INTERNAL REVENUE POSSSESSION OF PARTS OF STAMPS PREVIOUSLY USED ON SNUFF JARS-REV. ST. § 3376.-The possession of parts of internal revenue stamps which had been previously used upon snuff jars does not constitute an offence within the terms of section 3376 of the revised statutes, relating to the fraudulent possession of cancelled stamps, although the facts indicated a fraudulent purpose upon the part of the defendant.

Case certified up to the circuit court after trial and verdict in the district court

William H. Bliss, District Attorney, for the prosecution. John H. O'Neil, for defendant.

TREAT, J. The question presented involves the construction of the United States statutes pertaining to internal revenue, and particularly section 3376. The defendant is charged in the indictment with having had in his possession internal revenue stamps that had been theretofore used and cancelled. It appears from the arguments and statements of counsel, rather than otherwise, that the facts are that defendant did have in his possession parts or halves of several stamps which had theretofore been used, which could readily be placed on a package in such a position as to give them the appearance of a complete stamp; but no complete, unbroken or unmutilated stamp.

Under the stipulation of counsel this court is asked to determine whether, on such a statement of facts, the defendant can be found guilty of the offence charged under section 3376.

Reference has been made to many other sections or the statute, supposed to be in pari materia; and, on the other hand, the rules of construction as to criminal statutes have been invoked. Where a statute containing many provisions as to distinct subjects, each of which has its own peculiar requirements, is presented for interpretation, the requirements and penalties of one cannot, in a criminal proceeding, be imported into another. Stamps, according to the law and regulations, are to be placed on packages of snuff in a prescribed manner, whereby the opening of the package will destroy the stamp. As to brewer stamps, the statute is very specific as to the mode of placing them on the packages and destroying them; and, as to stamps to be used for some other purposes, it is provided that they shall be "utterly" destroyed, etc.; yet as to snuff stamps no such requirement exists, because it is presumed that if attached as demanded they will necessarily be ruptured or torn into parts. The fact that more specific provisions are contained in the statutes as to other articles would indicate, not that such provisions should obtain as to snuff, but that snuff stamps were intended to follow a different rule-a rule specific as to them.

The statute has several provisions which will adequately

protect the government against fraud by manufacturers or dealers in snuff without importing into section 3376 words not there. It would have been very easy for congress to have enacted that the possession of any part of a stamp previously used should be punishable, if such had been the purpose; or it might have been enacted that the possession of parts which were capable of being united or reunited, etc., should be an offence. When the specific mode of using stamps for tobacco and snuff, as prescribed by the statutes and regulations thereunder, is considered, it is evident that section 3376 contemplated stamps detached as a whole, and not the mere possession of fragments of stamps, no matter how capable of being used.

If stamps previously used are again affixed to a package, or if not destroyed when the package is emptied, etc., the section provides for appropriate penalties. Why, then, should a court go beyond the terms of the section to declare that to be an offence, by construction, which the statute does not make an offence, especially when the same section makes punishable any failure to destroy the stamp on opening the package, or any affixing of the stamp to a new package?

The question must be resolved in favor of the defendant, although the facts stated indicate a fraudulent purpose on his part.

MCCRARY, J., concurs.

AMERICAN UNION TELEGRAPH Co. v. BELL TELEPHONE Co.

(Circuit Court, E. D. Missouri. April 12, 1880.)

MANDAMUS-JURISDICTION OF THE CIRCUIT COURTS.-The jurisdiction of the circuit courts in mandamus proceedings is not enlarged by the act of 1875.

Motion for discharge of order to show cause why writ of mandamus should not issue.

Cline, Jamison & Day, for petitioner.
Edmund T. Allen, for respondent.

TREAT, J. To have the jurisdictional question tested, the order to show cause issued in this case; and now, on the motion to discharge said order, the court is to determine whether, by force of the act of 1875, the powers not theretofore existing as to an original proceeding for mandamus have been granted. All the decisions prior to that act, it is conceded, denied such jurisdiction in the United States circuit courts; but it is contended that the act of 1875 not only enlarged the jurisdiction as to parties, but also as to the subject-matter and forms or modes of proceeding. The language invoked is that said courts "shall have original cognizance, etc., of all suits of a civil nature at common law or in equity."

There still remain on the statute book sections 629 and 716, which are substantially a reproduction of sections 11 and 14 of the judiciary act, (1789,) unless their restrictions are repealed by the act of 1875. The latter enlarged the jurisdiction as to parties, but used the same ianguage as to the nature of the suits which had prevailed since 1789, viz.: "All suits of a civil nature, at common law or in equity," under which the United States supreme court has uniformly held that, taken in connection with section 14 of the original act-now 716 of the Revised Statutes-the power claimed did not exist. It is held, therefore, that the United States circuit courts have not, under the statutes of 1875, any other jurisdiction in mandamus proceedings than theretofore existed. The same reasons that caused congress originally to withhold the authority exist more forcibly to-day, growing out of the large multiplication of offices and corporations.

The motion to discharge the order is granted.

If the parties wish to further test the question a demurrer to the jurisdiction may be interposed and sustained.

UNITED STATES v. LITTLE MIAMI, COLUMBUS & XENIA RAILROAD COMPANY.

(Circuit Court, 8. D. Ohio. March, 1880.)

INTERNAL REVENUE-ACT OF JUNE 30, 1864-ACTION TO RECOVER TAXES WITHOUT AN ASSESSMENT.-An action of debt may be maintained to recover taxes without an assessment, where the statute describes the subject of the taxes and fixes the rates, so that the amount may be ascertained by evidence.

SAME ASSESSMENT MADE AND PAID-SUBSEQUENT SUIT FOR BALANCE BEYOND ASSESSMENT.-An assessment and payment are not a bar to a suit for the recovery of an amount claimed to be due over and above the amount which has been thus assessed and paid. SAME-CORPORATION-STATUTE OF LIMITATIONS.-The limitation of 15 months within which an assessment may be made has no application to an action against a corporation for taxes imposed by statute. RAILROAD CORPORATION-LEASE.-The lease of a railroad does not dissolve such corporation, and it may still be sued for liabilities incurred prior to such lease.

SAME-DEPRECIATION OF ASSETS-DEDUCTION FROM PROFITS.-The depreciation of assets during a certain period cannot be deducted from profits earned during the same period, in determining the taxable profits of a railroad corporation under the act of June 30, 1864.

Channing Richards, District Attorney, for the United States. Stanley Matthews, for defendant.

SWING, J. This suit was brought by the United States to recover the tax of 5 per cent. imposed by the internal revenue act of June 30, 1864, upon profits earned from the first of July, 1864, to the first of December, 1869, and used in construction, or carried to the credit of certain funds. It was claimed by the United States that the defendant has earned profits which were so used during that period amounting to $326,000, on which no tax was paid.

The defences were: First, that returns were made each year, and accepted by the government, upon which taxes were assessed and paid; that no assessment has been made for the additional amounts now claimed, and if there were errors and omissions in the returns they cannot now be corrected, nor can the taxes now be recovered without an assessment; second, that the defendant in fact paid taxes on all profits made