By section 110 of the same act, if any party shall not file his pleading in the cause within the time required by law, and shall file the same after the expiration of such time, he shall give the adverse party notice in writing of the time of filing such pleading, and the adverse party shall not be required to plead in reply thereto until ruled so to do.

It is admitted that the declaration was not filed within the time required by law, but within the time in which the defendant consented that it might be filed. What was the legal operation of such consent? It estopped the defendar.t from taking advantage of the laches of the plaintiff in regard to the time of filing the declaration, but it had no other effect. It cannot properly be construed, as the counsel for the plaintiff insists, into a waiver of any right which resulted to the defendant by extending the time, and the last clause of section 110, supra, absolved the defendant from the duty of putting in any plea, when the declaration is not filed within the time required by law, until ruled so to do by the plaintiff. As no rule was taken, the judgment is irregular.

This view renders it unnecessary to consider the other ground of irregularity taken by the defendant, under section 113 of the Practice Act, viz., that the plaintiff ought to have moved for his judgment at the opening of the next term of the court after the default, and that, having failed so to do, he was not authorized to enter a judgment, during the continuance of the term, without an order of the court.

The judgment is set aside. The plaintiff has leave to enter a rule that the defendant plead within 20 days after service of the rule, or that judgment be entered for want of a ples.

WHALEN V. SHERIDAN.

(Circuit Court, S. D. New York. August 19, 1880.)

1. PRACTICE-BILLS OF EXCEPTION-FILING AFTER TERM.

The power to reduce exceptions taken at trial to form, and have them signed and filed, is confined, under ordinary circumstances, to the term at which the judgment was rendered.

Muller v. Ehlers, 91 U. S. 251.

2. SAME-SAME-SAME.

A stay of proceedings was granted plaintift for 60 days from August 27, 1879, in order to enable him to prepare a bill of exceptions. Judgment was subsequently rendered December 27, 1879, and the term at which it was entered expired April 3, 1880. Held, under these circumstances, that a motion to file a bill of exceptions after the expiration of the term, upon the ground of sickness from about February 25th to the latter part of May, 1880, and subsequent poverty owing to such protracted sickness, should be denied.

3. SAME-SAME-NEW YORK CODE OF PRACTICE.

The rules of the New York Code of Practice have no application to writs of error and bills of exception in the United States courts.—[ED.

Motion for leave to file and serve a bill of exceptions nunc pro tunc.

Scott Lord and C. C. Egan, for plaintiff.

S. B. Clarke, Ass't Dist. Att'y, for defendant.

CHOATE, D. J. This is a motion for leave to file and serve a bill of exceptions nunc pro tunc under the following circumstances: The action was for damages alleged to have been caused by a trespass committed in 1867. At the October term, 1878, on the twentieth day of December, 1878, the defendant had a verdict, and thereupon a stay of proceedings for 60 days was granted to the plaintiff. On the eighteenth of February, 1879, on the plaintiff's motion, a further stay of 60 days, after a motion for a new trial should be decided, was granted for the purpose of enabling the plaintiff to prepare a bill of exceptions. In April, 1879, the motion for a new trial was argued, and on the twenty-eighth of August, 1879, an order was entered denying the motion for a new trial. On the twenty-seventh of December, 1879, judgment was entered for the defendant on the verdict, and for his

costs. On the thirteenth of April, 1880, a writ of error was allowed, bond filed, and citation served. On the same day a proposed bill of exceptions was served on defendant's attorney, and returned to the plaintiff's attorney. On the twelfth of August, 1880, this motion is made. The plaintiff's affidavit shows that from about the twenty-fifth of February to the latter part of May, 1880, he was confined to his bed by severe sickness, and unable to attend to business; that when he partially recovered "he was unable, though continually endeavoring for a long period of time, owing to his proverty, sooner to serve exceptions, as, owing mainly to such protracted sickness, he had no means to pay counsel to prepare the same." The term of the court at which the judgment was entered expired April 3, 1880.

It is entirely clear that upon these facts the motion must be denied. The rule governing the case is thus laid down by the supreme court in Muller v. Ehlers, 91 U. S. 251: "As early as Watton v. U. S. 9 Wheat. 651, the power to reduce exceptions taken at the trial to form, and to have them signed and filed, was, under ordinary circumstances, confined to a time not later than the term at which the judgment was rendered. This, we think, is the true rule, and one to which there should be no exceptions, without an express order of the court during the term, or consent of the parties, save under very extraordinary circumstances." Without considering the question raised by defendant's counsel of the power of the court to grant the motion, it is enough to say that the plaintiff fails entirely to show any extraordinary circumstances justifying the exercise of the power. He had 60 days from August 27, 1879, expressly granted for the purpose of preparing his exceptions. The term continued till the third of April, and during all this time he neither shows any disability on his part, nor makes any explanation of his delay and failure to act, which can be accepted as a satisfactory excuse for inaction. He did not even ask the court, during the term, to extend his time to prepare his bill of exceptions, nor does he show any excuse for not asking further time. To grant the motion would be a mere evasion of the rule de

clared by the supreme court as applicable to such cases. See, also, Herbert v. Butler, 14 Blatchf. 357; Eagle Manuf'g Co. v. Draper, Id. 334.

It is suggested that the rules of practice, under the New York code of procedure, entitle the plaintiff to relief. The rules of the state code of practice can have no application to writs of error and bills of exception in the United States courts-proceedings entirely unknown in the state practice in civil causes.

Motion denied.

UNITED STATES v. FOUR STAND CASKS, etc.*

(Circuit Court, E. D. Pennsylvania. January 31, 1881.)

1. REVENUE LAWS-DISTILLED SPIRITS-FAILURE TO STAMP "STAND CASKS"-FORFEITURE-CONSTRUCTION OF STATUTE.

"Stand casks," forming part of the fixtures of a retail liquor saloon, and used for holding distilled spirits, are not required to be stamped, and their contents are not liable to forfeiture under section 3289, Rev. St., because of the absence of such stamp.

Appeal from decree of district court dismissing a libel of information for forfeiture against certain casks of distilled spirits. The district court had held that the contents of large ornamental casks, forming part of the fixtures of a retail liquor store, and known as "stand casks," were not liable to forfeiture under section 3289, Rev. St., for want of a stamp. The case and opinion of the court were fully reported in 3 FED. REP. 20. The United States appealed to the circuit court.

John K. Valentine, U. S. Dist. Att'y, for appellant.
Richard P. White, for appellee.

Decree affirmed, (no opinion.)

*Reported by Frank P. Prichard, Esq., of the Philadelphia bar.

BOIS v. MERRIAM.

(Circuit Court, D. Nebraska. November 10, 1880.)

VOID TAX SALE-LIEN OF VENDEE FOR TAXES PAID-INTEREST.

In Equity.

C. W. Seymour, for complainant.

E. F. Warren, for respondent.

This cause was brought to set aside the tax deed of the respondent, and was decided by Judge McCrary, who held that the ruling of the state courts, in their interpretation of the statutes of their respective states, in these tax cases, would be followed by this court ordinarily, and in this case the report of the master is ratified and confirmed, as follows: First. The complainant was the owner and in peaceable possession of lots 1, 2, 3, 4, 5, and 6, block 168, Nebraska City, Nebraska.

Second. On the twenty-third of February, A. D. 1876, the said lots above described were sold by the then treasurer of Otoe county for the delinquent taxes of 1873, at private sale, to the assignor of the respondent, Merriam.

Third. The holder and owner of said tax certificate has paid the taxes upon said lots both prior and subsequent to said date. That from 1869 to 1875 the complainant had abundance of personal property in Otoe county out of which said taxes might have been made. Gen. St. 916; 4 Neb. 139; 8 Neb. 59; 7 Neb. 119, 123.

Fourth. The said tax sale of said real estate was illegal and void, and that said pretended tax deed is void upon its face. 6 Neb. 236; New Rev. vol. 445, 453; New Rev. vol. 445, 447; Rev. Laws, §§ 113, 112.

Fifth. That the respondent be subrogated to the rights of the county, and decreed to have a lien upon said real estate for all the taxes by him paid, with 12 per cent. interest from the date of such payment, and that the respondent pay the costs of this action. 8 Neb. 92; Gen. St. 922, § 64.