years after the breach, and twelve years after she had settled her administration account, without having had previous notice of the bond or forfeiture, she was held to be entitled to judgment, on pleading want of assets and fully administered. United States

v. Primrose, Gilp. 58.

32. (Feb., 1836.) Where a separate judgment has been rendered against one obligor on a joint and several obligation, and a scire facias is issued to revive the judgment, the defendant cannot avail himself of a release given to his co-obligor subsequent to the original judgment. United States v. Thompson, Gilp. 614.

33. Where a scire facias is issued to revive a judgment, the defendant cannot avail himself of matters of defense which occurred previous to the original judgment. Ib.

34. Where a joint judgment is rendered against two obligors in favor of the United States, and one of them is subsequently released under the provisions of the act of March 2, 1831, such release is a sufficient defense, under a plea of payment, to a scire facias issued to revive the judgment against the other obligor.

Ib.

35. Where judgment has been rendered against a defendant, who has subsequently conveyed real estate to the plaintiff, he is entitled, under a plea of payment to a scire facias issued to revive the original judgment, to a credit for the value of the property at the date of the conveyance. Ib.

36. (May, 1868.) Proceedings under the acts of Congress for the confiscation of property, on account of acts done or permitted in aid of the late rebellion, are not admiralty cases, although the statute requires such proceedings to conform, as near as may be, to the forms and modes of proceeding in admiralty. They are common-law cases in their essence, like revenue seizures on land; and the mode of bringing such cases into a revisory court is by writ of error. Brown v. United States, McCahon, 229.

37. A person who accepts and complies with the conditions of a pardon granted by the President of the United States, for acts done or permitted in aid of the late rebellion, may plead such pardon in proceedings for the confiscation of his property. Ib.

38. Until an order of distribution is made, of proceeds of property sold, or until the money is actually paid into the hands of the party entitled to receive it as informer, or into the Treasury of the United States, it is within the control of the court, and

no vested right to it has accrued so as to prevent the pardon from restoring it to the petitioner. Ib.

Replication. Common Law.

1. (June, 1845.) A replication which alleges two distinct and independent facts, either of which is a complete answer to the plea, is double, and is bad on special demurrer. Burnham v. Webster, 2 Ware, 240.

1. (Dec., 1875.) To a claim to recover a tax due under the internal revenue law, on an allegation that a less tax than was due had been paid, the defense was interposed that the amount paid was determined to be the true amount by the assessor of internal revenue, and to this defense a demurrer was interposed. Held, that the defense was one which would more properly be passed on at the trial, and that the demurrer must be overruled. United States v. The New York Guaranty and Indemnity Co., 8 Ben. 269.

2. (Dec., 1875.) A stockholder of a national bank demurred to a complaint of the receiver of the bank, who had sued to recover the amount of an assessment laid by the Comptroller of the Currency upon the stockholders, to wind up the affairs of the bank, alleging as a ground of demurrer that the complaint did not show that the assessment was needed by the receiver.

Held, that the decision of the United States Supreme Court upon this point, in the case of Kennedy v. Gibson (18 Wall. 498), that, as to the necessity of an assessment and its amount, "the determination of the Comptroller is conclusive," was not obiter dictum, and therefore must control in this case, and the demurrer must be overruled. Strong v. Southworth, 8 Ben. 331.

Demurrer to Evidence.

1. (Feb., 1830.) In a demurrer to evidence, the party who demurs is held to admit every fact which a jury, in the exercise of a fair and reasonable discretion, could infer from the evidence; but he is not bound to admit forced and violent inferences. United States v. Williams, 1 Ware, 173.

Affidavit for Order of Arrest.

1. (July, 1867.) A statute providing in general terms that an order of arrest may be issued whenever certain facts appear by affidavit, is satisfied if the requisite facts appear by a fully verified complaint, and this complaint is laid before the court on applying for the order of arrest. United States v. Walsh,

1 Abb. U. S. 66.

Argument.

1. (May, 1833.) The bill of complaint of a debtor, against whom a warrant of distress has been issued under the provisions of the act of May 15, 1820, is in the nature of a motion to stay execution on a judgment, and the beginning and conclusion of the argument are with the debtor. Armstrong v. United States, Gilp. 399.

2. (Feb., 1837.) Where a defendant has pleaded payment, and, at the trial, adopts such a course as to throw the whole affirmative proof on the plaintiff, the plaintiff has the right to reply. United States v. Ingersoll, Crabbe, 135.

Bill of Particulars.

1. (July, 1877.) Where an information on behalf of the United States had been filed, for violation of the internal revenue law, as to entries upon the books, and other offenses, and a quantity of corn, spirits, and other property had been seized, Held, that the information filed being vague, the claimant of the property was entitled to a bill of particulars. United States v. 200 Bushels of Corn, &c., 9 Ben. 186.

2. (Sept., 1879.) The United States brought suit for an unpaid balance of income tax alleged to be due from the defendant during a period of ten years. Among other defenses, it was denied that the defendant's taxable income exceeded the sums on which he had paid the tax. The defendant moved for a bill of particulars, making affidavit that "he in good faith intends to defend the action, and that he is ignorant of the particulars of the claim made against him, and that it is necessary and material to his defense that he shall have rendered to him a bill of the par

ticulars thereof, as he is advised by his counsel and verily believes ;" and the district attorney made affidavit that "it is not in his power, and, to the best of his knowledge and belief, not in the power of the plaintiff, to state all the items or particulars which have to be considered in determining what defendant's taxable income was." Held, that the case was not a proper one in which to order a bill of particulars. United States v. Tilden, 10 Ben. 547.

3. The granting or refusing a bill of particulars is a matter in the discretion of the court, under the circumstances of the particular case.

Ib.

4. In general, such a bill is not ordered where the matters of which information is thus sought are peculiarly within the knowledge of the defendant or more within the defendant's than the plaintiff's knowledge, or where, from the nature of the case, the plaintiff cannot be reasonably expected to be able to give the items of his claim with certainty. 1b.

5. Whether a delay from April, 1878, when the demurrer in some parts of the answer was finally disposed of, till September, 1879, when this motion was made, would be fatal to the application for a bill of particulars, if the defendant were otherwise entitled to it, or whether such application should be denied because at an intervening term of the court the defendant's counsel had announced that they were ready and desirous to go to trial, quære. Ib.

Certificate of Probable Cause.

1. (Sept., 1871.) Property was seized by a collector of internal revenue, on Sept. 26, 1867, and was next day released to the claimant on a bond given under the 48th sec. of the Internal Revenue Act of June 30, 1864 (13 Stat. 238). On Oct. 10, 1867, an information was filed against the property. On October 22, the collector made a new seizure of such of the property first seized as could be found in the possession of the claimant. No information was filed on that seizure. The Circuit Court, on a writ of error, decided that the first seizure was abandoned, and the claimant was entitled to judgment. The col lector then applied to this court for a certificate of probable

cause.

Held, that the application must be denied for want of jurisdiction. Ninety-Two Barrels of Rectified Spirits, 5 Ben. 323.

2. (Feb., 1859.) A motion for a certificate of probable cause of seizure may be made subsequent to the decree, and upon the hearing of such motion the court is not limited to the evidence introduced upon the trial, but may receive any evidence tending to show that the collector acted upon a reasonable suspicion. The Gala Plaid, 1 Brown, 1.

3. In determining the question, the court is not at liberty to consider the fact that the seizure was made at night, without proper warrant, and that the conduct of the officer was otherwise oppressive and cruel, as his certificate would not protect him in an action for a personal trespass. The court can only consider whether his action was malicious and groundless, or whether he acted upon a reasonable suspicion that the goods were smuggled. Ib.

4. The fact that the claimant was selling them at a low price in an obscure town, declaring them to have been imported, and that duty had been paid upon only a small portion, was held sufficient to justify their seizure. Ib.

Certiorari from Circuit Court.

1. (Feb., 1817.) A Circuit Court has no authority to issue a certiorari, or other compulsory process, to the District Court, for the removal of a cause from that jurisdiction, before a final judgment or decree is pronounced. Patterson v. United States, 2 Wheat. 222.

2. In such a case, the District Court may and ought to refuse obedience to the process of the Circuit Court, and either party may move the Circuit Court for a procedendo after the transcript of the record is removed into that court, or may pursue the cause in the District Court as if it had not been removed. Ib.

3. But if the party, instead of properly taking advantage of the irregularity in the proceedings, enters his appearance in the Circuit Court, takes defense, and pleads to issue, it is too late, after verdict, to object to the irregularity; and the Supreme Court will, on error, consider the cause as an original suit in the Circuit Court.. Ib.