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this league to the defendants, Sarah A. Me- | the league in the right of his wife and as his Phaul and Ann E. Tipton, in 1850. On the homestead, but claims no title in himself; that petition of Lapsley the suit was transferred to his minor children now live with him on the the Circuit Court of the United States. The league aforesaid, and that upon such testimony suit was dismissed as to all defendants except the defendant moves the court to charge the N. A. McPhaul. jury as follows:

Upon the trial, verdict and judgment were for the plaintiff, and the case was brought to this court by writ of error. The exceptions relating to the evidence are sufficiently explained in the opinion.

The portions of the charge of the court set out in the bill of exceptions, are as follows:

Be it remembered, that, upon the trial of this cause the plaintiffs having read in evidence to the jury the testimonio purporting to be the testimonio of the power of attorney from "Tomas Vega" and others to Samuel M. Williams, of date May 5, 1832, as a paper properly authenticated and recorded in McLennan County, Texas, and duly filed and notice given of filing in this cause, and upon such evidence the defendant, N. A. McPhaul, moves the court to charge the jury as follows:

1. In your deliberation in this cause you must disregard the paper which purports to be the testimonio of a power of attorney, from Tomas Vega to Samuel M. Williams, of date May 5, 1832, and to charge that

2. Unless you believe from the evidence before you that the original grantee of the land sued for, and the person making the instrument, if it was ever made, purporting to be a power of attorney from Tomas Vega to Samuel M. Williams, are one and the same person, then you must disregard the said instrument.

3. Unless you believe, from the testimony before you, that the original grantee of the land sued for, and the person making the instrument, if ever made, purporting to be a power of attorney from Tomas Vega to Samuel Williams, are one and the same person, you must find for defendant.

If you believe from the testimony that the defendant, N. A. McPhaul, is in possession of a league of land granted to Peter Fleming by the government, and that said league is in conflict with the land claimed in plaintiff's petition; that Peter Fleming is dead, and that McPhaul intermarried with a daughter of Peter Fleming, and that he, as the husband and head of the family, took possession of the league of land in the right of his wife, who inherited it from her father; that his wife is dead and that she left children, and that those children are minors and live in the family of their father on the league, then you must find for the defendant, McPhaul, because these are not proper parties in this suit. Refused.

Defendant moves the court to charge the jury that the decree of the District Court of Falls County, Texas, precludes the plaintiff, Lapsley, from recovering of the defendant in this case the eight hundred acres of land described in said decree and decreed to Sarah A. McPhaul, wife of the defendant. in her lifetime.

This charge is prayed upon the certified copy of the decree rendered in said case, and which the court refused to admit in evidence to the jury, on the ground that the same is not authenticated as required by law; because the best evidence of the existence of such a decree as that offered, is the copy of the original judg ment under the certificate and seal of the clerk of the court wherein said decree was endered; and because there was no pleading by the defendant under which the decree could be offered in evidence, the decree sought to be offered in evidence having been rendered after the suit

The first of the within instructions asked for had commenced. is refused.

The second and third are given, with this qualification, viz.: that if the jury believe from the evidence, documentary or oral, that the original grantee of the land was known indifferently by the name of Tomas Vega and Tomas de la Vega, then the presumption is that he is the same person who signed the power of attorney to Samuel M. Williams; and you wil! so consider, unless satisfied such is not the fact from other evidence.

Be it remembered, that on the trial of this cause it appeared in evidence by a witness, E. J. Gurley, that the defendant. N. A. McPhaul, is in possession of a league of land known as the Peter Fleming league, which, is in conflict with the eleven leagues set out in plaintiff's petition: that N. A. McPhaul was a married man in the year 1857 or 1858, and about that time, with his family, settled upon and made his home upon said Fleming league, end from thence until now has lived upon said league (Fleming) as his homestead; that McPhaul's wife was the daughter of Peter Fleming, the original grantee of said league of land; that said Peter Fleming died long since; that the Fleming league is a colony league grant, made by the government in 1835; that McPhaul's wife died a few years since and left minor children; that McPhaul claims possession of

Be it remembered, that, on the trial of this cause, the court charged the jury on its motion, as follows:

That the documentary evidence read then in evidence by plaintiff, to wit: the original grant from the government to Tomas de la Vega of date 1833, and the testimonio of a power of attorney from Tomes Vega to Samuel M. Willigms of date 1832, and other deeds, the validity of which the defendant did not question, formed a claim of title from the government to the plaintiff.

And further; the court orally and in writing charged the jury that the admission in evidence to them of the testimonio of May 5, 1832, is prima facie evidence of its genuineness.

And further; in substance and at the request of plaintiff, that there was before them no evidence that the testimonio is not genuine, except the evidence of difference of name.

To which charges defendant excepted on the ground that the charge took from the jury the question of the identity of the grantee of the eleven leagues of land, and the maker of the testimonio.

And on the further ground, that the admission of the testimonio in evidence to the jury is no evidence of its genuineness.

And he further excepts, on the ground that

the above charge by the court, at the request of plaintiff, is a charge upon the weight of testimony, and excluded the intrinsic evidence of its want of genuineness, which the paper shows from its want of record in the proper courts for twenty years from its date.

And the jury having come into court, the court then charge them as follows (orally): that the testimonio, the original and copy of which is before you, of May 5th, 1832, is evidence before you for your consideration, and it is not necessary that the signature of Tomas de la Vega, in his own proper handwriting, should | be on the testimonio before you; and if Tomas de la Vega did sign the original of the testimonio and the testimonio before you, in the office at Saltillo, then the testimonio given you in evidence, with proof of a conveyance made by Williams, the attorney, by virtue thereof, would devest La Vega of his lands, to wit: the eleven (11) leagues, set out in plaintiff's petition.

To said charge of the court the defendant excepts, on the ground that the jury already had full instructions from the court on the points in the cause; because said charge called the minds of the jury from the consideration of the want of genuineness of the testimonio arising from a failure of plaintiff to show the existence of, or the genuineness of, any protocol in Saltillo, and the want of its record for twenty years, all of which exceptions being considered, were overruled, and defendant excepts, and tenders bill of exceptions.

Messrs. Durant & Hornor, for plaintiff in

error.

Messrs. P. Phillips and C. Robinson, for defendant in error.

Mr. Justice Swayne delivered the opinion of the court.

This is a writ of error to the Circuit Court of the United States for the Western District of Texas.

The action was ejectment. Lapsley was the plaintiff. The plaintiffs in error were the original defendants. In the progress of the cause the plaintiff dismissed the action as to all of them except N. A. McPhaul, and judgment was rendered against him for their costs. He recovered against McPhaul, and this writ of error is prosecuted to reverse the judgment.

The writ should have been in the name of McPhaul alone as the plaintiff in error. But as the defect is clearly amendable under the 3d section of the Act of June 1, 1872, 17 Stat. at L., 196, it is unimportant.

There are numerous assignments of error. Except those involving points which we deem material to be considered, we shall pass them by without remark.

The affidavit of Mussina was properly stricken from the files.

|

stating that he believes such instrument to be forged." Sec. 90, Act 13th May, '46, p. 387, referred to in Hanrick v. Barton, 16 Wall., 166, 21 L. ed. 350.

The affidavit was filed by Mussina as the attorney of De la Vega. It sets forth that the instrument of writing purporting to be a testimonio or second original of a power of attorney from Tomas de la Vega, by the name of Tomas Vega, to Samuel M. Williams, dated May 5, 1832, was, as affiant verily believed, a forgery. The testimonio was one of the plaintiff's files in the case for the purposes of evidence *upon the trial. The object of the affi- [*283 davit was to throw the burden of proof upon the plaintiff.

He had given the proper notice to the defendants on the 16th of January, 1872. The affidavit was filed, not within one day thereafter, as the statute required, but on the 5th of February following, while the trial was in progress. De la Vega, in whose behalf it was filed, was not a party to the record.

It is insisted that the testimonio was improperly admitted to record, and that it was not properly admitted in evidence. These objections present questions of local law. The instrument is as follows:

It bears date on the 5th day of May, 1832, and sets forth that Thomas Vega, Rafael Aguerre, and José Ma. Aguerre, of the City of Leona Vicaria, appeared before Juan Gonzales, regidor of that city, and declared that they conceded to Samuel May Williams. a resident of the City of Austin, full power, "in order that in the names of the appearers" he might proceed to sell the lands therein described. And to confirm all that may be granted and executed, the appearers bind themselves, their persons and their property present and to come." concludes, "Thus have they granted and signed it in presence of these witnesses, Antonio Espinosa, Rafael de Leon, and Francisco de la Fuentes Gonzales, residents of this city.

It

"I attest: Juan Gonzales, Thomas Vega, José Ma. Aguerre, Rafael Aguerre."

The following memorandum was affixed: "Copy from the original, with which it agrees, the day of its execution; given on two 'useful' pages of paper of the second stamp, conformable to law. All of which I, the undersigned judge, officiating with those assisting me according to law, hereby attest.

Witness:

José Nazo Ortiz, J. McMoral.”

Juan Gonzales.

*Affidavits are annexed upon which it [*284 was recorded, in McLennan County, September 7, 1856, and again, September 22, 1858; in Falls County, October 6, 1859, and in Williamson County, October 15, 1859. The affidavits were all sworn to in Texas. Among them are, The law of Texas provides as follows: "Every one proving the handwriting of Gonzales and instrument in writing (properly recorded) shall the attesting witnesses-Moral and Ortiz-and be admitted as evidence without the necessity that, if living, they are residents of Saltillo, in of proving its execution, provided that the party the State of Coahuila; one by Gonzales, made who wishes to give it in evidence shall file the July 13, 1857, proving that the testimonio was same among the papers of the suit three days executed by him at the personal request of the before the trial and give notice to the opposite grantors named therein and in their presence, party of such filing, and unless such opposite and that his signature thereto, and those of party, or some other person for him, shall Moral and Oritz, are all genuine; that Thomas within one day after such notice file an affidavit | de la Vega executed a certain other power of at

torney before him to S. M. Williams, on the | nesses; that in said protocol book, and of the 28th of April, 1832, and that "the said Thomas de la Vega, who executed this testimonio, is one and the same person."

The testimonio here in question being a copy from the protocol, or original instrument, made by the officer by whom the protocol was executed, was, in the eye of the Spanish law and of the law of Texas, "a second original," and of equal validity and effect with the prior one. 1 Partidas, 222; Owings v. Hull, 9 Pet., 625; Mitchel v. U. S., 9 Pet., 732; Smith v. Townsend, Dall. Dig., 570; Herndon v. Casiano, 7 Tex., 332.

That Gonzales had authority adequate to the function he performed, and that the testimonio was valid, was held by this court in Spencer v. Lapsley, 20 How., 274, 15 L. ed. 906.

In relation to the recording of the instrument, our attention has been called to the following statutes of Texas: the Act of the 20th of December, 1836, sections 35, 40; the Act of May 10, 1838; the Act of January, 19, 1839; and the Act of May 12, 1846, sections 4, 5, 7, 8, 9. A careful examination of these statutes has sat isfied us that the registration was authorized by law. If there could be any doubt upon the 285*] subject it is removed by the Texas adjudications upon the subject, referred to in the argument of the learned counsel for the defendant in error.

Guilbeau v. Mays, 15 Tex., 414; Henderson v. Pilgrim, 22 Tex., 476; Secrest v. Jones, 21 Tex., 133; Paschal v. Perez, 7 Tex., 348; Edwards v. James, 7 Tex., 377.

A certified copy from the office where the testimonio was recorded would, therefore, have been competent evidence. The original, with the recorder's indorsement, would, as a consequence, also have been admissible. In such cases, it would be a solecism to receive the copy and reject the original.

In this case the plaintiff offered the testimonio in evidence, and it was properly received. It would have been admissible without recording. In Martin v. Parker, 26 Tex., 260, it was objected that an act of sale of real estate, not having been signed by the instrumental witnesses, was inadmissible without proof of its execution. The court replied: "We do not think the objection well taken. In McKissick v. Colquhoun, 18 Tex., 151, Chief Justice Hemphill said: "The signature of a judge or alcalde acting in place of a notary, authenticated by two assisting witnesses, has all the force and effect of the signature and seal, or rubric, of a notary.'"

The defendant offered to prove by T. I. Walker, a witness present, that in the year 1868 he went from Austin, Texas, to Saltillo, formerly Leona Vicaria, in Coahuila, Mexico, and there examined the books of protocols in the office of the secretary of the ayuntamiento; that he found in the book of protocols for the years 1832 and 1833, among others, a protocol of a power of attorney, in the Spanish language, of the date of May 5, 1832, from José Maria Aguerre to Samuel M. Williams, giving Williams the power to sell the land granted by the government to Thomas la Vega and Rafael and José Maria Aguerre, to wit: eleven leagues each; that said protocol had to it no signatures but those of Gonzales and José Maria Aguerre, 286*] and that it had no signatures of wit

date of April 28, 1832, he found an original protocol of a power of attorney, signed by José Maria de Aguirre, or Aguerre, and Thomas de la Vega and Juan Gonzales, with attesting witnesses Ortiz and Moral; that this power was to Samuel M. Williams; and that in said book, from the power of attorney of the 28th of April, 1832, to the power of the 5th of May, 1832, inclusive, there were seven leaves, and no visible evidence of any mutilation of the book; that there are no protocols of any power of attorney from either Maria de Aguirre, or Aguerre, or Thomas de la Vega, to any one, in said seven leaves, except the two named above; and that the witness had in his hands then in court photographic copies of said seven leaves, showing exactly the facts above mentioned as to the protocol book and the said two powers of attorney as of record therein.

The plaintiff objected to the admission of the evidence. The court sustained the objection and the defendant excepted.

It has been shown that the testimonio is "a second original," and of the same effect with the protocol. Mitchel v. U. S. supra; Herndon v. Casiano, supra. According to an eminent Spanish authority it is full proof, unless the instrumental witnesses contradict it. 4 Sala, 127, 130, 136. Here neither Vega, either of the Aguerres, Gonzales, Moral nor Ortiz was produced, nor was their absence accounted for. The bill of exceptions states that the witness had the photographic copies in his hands in court-not that they were offered in evidence. But perhaps it is only fair to construe the bill of exceptions so as to give it that effect. Conceding this, the only testimony offered was that of Walker, and the two photographic copies. It does not appear to have been suggested that this was to be followed by any further testimony. The copies had been in the possession of Walker more than three years; yet it was not shown that the plaintiff had any notice *of them until they were suddenly pro- [*287 duced by the witness in the midst of the trial. It is also significant that the agent who went on the visit of exploration to Saltillo did not claim to have discovered anything whatever adverse to the testimonio, except the state of the protocol as it appeared of record. Nor did the defendant, enlightened as he must have been by Walker, invoke the testimony of the keeper of the archives, or of any other person residing in the locality where they were kept. The plaintiff's petition was filed in 1863. Walker's discovery was made in 1868. The trial was in 1872. There was time between the two periods last mentioned to procure ample testimony from Saltillo and elsewhere touching the fraud and forgery charged, if they were believed to exist. The defendant was silent. The record is a blank as to any such testimony given, offered or suggested, except the isolated circumstances offered to be proved by Walker and the two photographic copies. These are pregnant facts. Copies of the photographs are not given in the bill of exceptions; nor are the contents of the power to Williams, of the 28th of April, given in whole or part. That is stated to have had upon it the names of José Maria Aguerre and Thomas de la Vega as grantors, and of Gonzales with those of Moral and Ortiz as assisting witnesses. It is possible that the testimonio

2. Held, that whether the tax on dividends aris1869 be viewed as a tax on the shareholder or on the corporation, it was intended to tax the earnings for that year by the section which limited the duration of the income tax.

3. That section 17 of the Act of 1870, construing

certain sections of the law of 1864 to extend the tax to the year 1870, is valid, because it is not an attempt to exercise judicial power by construing a statute for the court, but it is a mode of continuing or reviving a tax which might have been supposed to have expired.

may, by the mistake of the copyist, have the date of the latter instead of the earlier instru-ing from the earnings of corporations for the year ment, or that if the fuller and better evidence, which the defendant was bound to give, had been produced, the apparent discrepancies between the two documents in question might have been explained in a manner consistent with the integrity of all concerned and the validity of the testimonio. It should at least have been shown by some one officially connected with the office, that the book seen by the witness was the book, and the only book there wherein the instrument could have been properly recorded, and that there was no such protocol anywhere in that book, or elsewhere in the office. It is also possible it was known in the office that the missing signatures had been removed by some dishonest hand.

288*] *The testimony proposed to be elicited

from Anderson fell far short of the requisite standard. A party is not permitted to give secondary evidence where it presupposes better evidence within his reach, which he fails to produce. In Renner v. Bk., 9 Wheat., 581. this court, speaking of such evidence, said: "Every case must depend in a great measure upon its own circumstances. The rule of evidence must be so applied as to promote the ends of justice, and guard against fraud and imposition."

4. As this merely imposed a tax retrospectively. it was within the legislative power of Congress, and the case differed from an effort to invade private rights by construing a law affecting those rights over which Congress had no power whatever.

[No. 249.]

Argued Apr. 7, 8, 1874. Decided May 4, 1874.
IN ERROR to the Circuit Court of the Unit-

ed States for the District of Louisiana.
The nature of the case appears in the opinion.
The statement of facts therein referred to is as
follows:

1. That the plaintiff is a body corporate, as set forth in plaintiff's petition, duly created by the laws of the State of Louisiana, domiciled in the said State, and, since the first of January, 1868, has, as such Corporation, prosecuted and carried on the business of fire and marine insurance in the City of New Orleans.

It appears incidentally by the record that 2. That the shares of the capital stock of said there has been a great amount of litigation, ex- Corporation, or as to each and every of said tending through a long period of time, touch-shares, is, in part, paid in in cash and in part ing the lands to which this testimonio relates. The protocol and testimonio bear date more than forty years ago.

by the individual notes of the respective shareholders, which said promissory notes are, in this statement, referred to as stock notes, all The record does not show that during this of which said stock notes are held by said Corlong period either of the Aguerres ever ques-poration as a portion of the assets. tioned the validity of the latter, or that La Vega ever assailed it by his own sworn testimony.

Large and diversified interests must have grown up on the faith in its genuineness. In this case the attack upon the instrument is not made by either of the grantors, but vicariously by the defendant, who claimed under a distinct and hostile title which he wholly failed to establish.

3. That on the 5th day of July, A. D. 1870, the said Corporation plaintiff declared a dividend of the earnings which had accrued to said Corporation between the 5th day of July, a. d. 1869, and the 30th day of June. A. D. 1870, amounting to the gross sum of $36.000, which said sum was at once, on the said 5th day of July, 1870, credited pro rata to the several shareholders of said Corporation upon their unpaid stock notes, the said Corporation deducting an amount from said dividend, for internal revenue tax of the United States, a sum amounting to five per centum of said $66,000, to wit: $3,300, which said last sum is still held by said plaintiffs, undivided and undistributed, pendWe direct, sua sponte, the writ of error to being this suit, and on the 13th day of September, amended by striking from it the names of all the plaintifs excent McPhoul: and the ment of the Circuit Court is affirmed.

Under all the circumstances, we think the testimony of Anderson was properly excluded. In our judgment the court was correct as to the instructions given and those refused, to which the exceptions touching that subject re

late.

A. D. 1870, made a return of said dividend to judg-nd upon demand of B. S. Joubert, Assessor of Internal Revenue for the First Collection District of Louisiana, in due form, the plaintiff at the same time denying its liability to make

323] *SIDNEY A. STOCKDALE, Collector of such return or pay any tax. Internal Revenue, Piff. in Err.,

[blocks in formation]

eadnotes by Mr. Justice MILLER.

4. That B. F. Joubert, Assessor of United States Internal Revenue for the First Collection District of Louisiana, assessed against said plaintiff on alleged internal revenue tax upon said dividend, at the rate of five per centum thereon, amounting to the sum of $3,300, and returned the same upon his monthly list of assessment for the month of August. 1870, to said defendant, Collector of Internal Revenue in and for said collection district. for collection.

5. That the said defendant, collector as aforesaid, demanded the payment of the said sum, so assessed as aforesaid, from the said plaintiff.

Said plaintiff refused to comply with said de-, mand. Whereupon the said defendant, as collector as aforesaid, issued his warrant for the collection thereof by distraint, with the addition of a penalty of five per centum on the amount so assessed against said plaintiff, and interest at the rate of one per centum per month upon the amount of said alleged tax, and caused the property of plaintiff to be distrained and seized, and threatened to sell the same to make the sum necessary to pay the said alleged tax, penalty and interest. And thereupon the said plaintiff, on the 19th day of November, A. D. 1870, protesting against the legality of said assessed tax, and denying that any tax was due the United States, on account of or by reason of said dividend, from said Corporation, the plaintiff paid to said defendant, collector as aforesaid the sum demanded as such tax, to wit: the sum of $3,300, together with the sum of $165, alleged penalty, and $33 as interest and $9 costs, amounting to the sum of $3,507, all of which said several sums of money were respectively paid under protest.

and July 31, 1870, declared July 13, 1870, payable July 25, 1870.

In No. 271, case of Valette Dry Dock Co., defendant's business was that of docking and repairing vessels; the fund, a dividend of earnings and surplus fund made between January 1, 1869, and December 31, 1869, declared January 14, 1870, payable February 1, 1870.

(This defendant is not one of the corporations mentioned in sections 120 and 122 of the Act of 1864, and it seems, therefore, that the writ of error cannot be maintained. Upon application to the Commissioner of Internal Revenue, we learn that the tax in this case, $595, has been refunded to the defendant, as appears by its receipt of August 1, 1873, on file in that office).

In No. 272, case of Home Ins. Co., the defendant is an insurance company; the fund, a dividend of earnings for the year 1869, declared January 17, 1870, payable March 15, 1870.

In No. 273, case of N. O. Mut. Ins. Co., the defendant in error is an insurance company; the fund, a dividend of earnings for the year 1869, declared January 13, 1870, payable March 1, 1870.

In No. 274, case of Union Ins. Co. of N. O., the defendant in error is an insurance company; the fund, a dividend of earnings and surplus fund, made between the first of May, 1869, and the 30th of April, 1870, declared May 11, 1870, the dividend then payable.

That the said plaintiff, according to the provisions of law in that regard, and the regulation of the Secretary of the Treasury, established in pursuance thereof, then in force, appealed to the Commissioner of Internal Revenue, and demanded the funding and return to the plaintiff of the said sum of $3,507, so paid to defendant as aforesaid; that the said Commissioner rejected said appeal, and refused to In No. 275, case of Merch. Mut. Ins. Co., the allow said money to be refunded to said plain-defendant in error is an insurance company; tiff on the 6th day of April, 1871, less than six months prior to the commencement of this action, which was instituted within one year from the date of the payment of said money to said defendant, Collector.

That all of the said sums of money, so paid by the said plaintiff to the said defendant, Collector as aforesaid, except the sum of $9, collected as costs, have, in the due and regular course of business in the office of the said defendant. been paid into the Treasury of the United States.

In twelve other similar cases (same plaintiff in error) a similar statement was filed, differing from the above only in this: that generally the dividends had been paid without deducting the tax, and also in regard to the following

miner nrticulars:

Thus, in No. 267, case of The Citizens' Bank of the defendant in error is a bank, and the fund taxed, a dividend of earnings made between August 1, 1869, and January 31, 1870, declared January 3, 1870, payable second Monday in February, 1870.

In No. 268, case of N. O. Canal & Banking Co., the defendant in error is a bank and the

the fund, a dividend and surplus fund made between the first day of June, 1869, and 31st of May, 1870, the dividend declared June 3, 1870, payable August 1, 1870.

In No. 276, case of Germania Ins. Co., defendant in error is an insurance company; the fund, a dividend and surplus fund made between March 30, 1869, and March 30, 1870, declared March 31, 1870, the dividend then payable.

In No. 277, case of Sun Mut. Ins. Co. of N. O., the defendant in error is an insurance company; the fund, a dividend and surplus fund, made during the year 1869, declared January 19, 1870, payable March 1, 1870.

In No. 278, case of Union Nat. Bk. of La., the defendant in error is a bank; the fund, a dividend, made between the 1st of August, 1869, and the 31st of January, 1870, declared Janu ary 21, 1870, payable February 7, 1870. In No. 279, the defendants in error are commissioners of an insurance company in liquidation; the fund, a dividend of earnings for 1869, declared January 10, 1870, payable March 1,

1870.

Of the above cases, the funds in Nos. 268,

fund, a dividend of earnings between July 1, 272, 273, 277 and 279, and probably 269, are 1869, and December 31, 1869, declared Decem-earnings made previously to the 31st of December 27, 1869, and paid January 3, 1870.

In No. 269, case of The N. O. R. Co., the defendant in error is a railroad company; the fund, a dividend of earnings between July 4, 1868, and December 31, 1869, declared January 11, 1870, payable February 15, 1870.

In No. 270, case of Crescent City R. Co., the defendant in error is a railroad company; the fund, a dividend of earnings between January 1, 1869, and December 31, 1869, declared January 12, 1870, payable January 25, 1870; also dividends of earnings between February 1, 1870,

ber, 1869. So, also, is the first dividend in No. 270; the second dividend in that case being for part of the year 1870. In Nos. 249, 267, 274, 275, 276 and 278, the earnings extend over parts of both years.

Messrs. Geo. H. Williams, Atty. Gen., and S. F. Phillips, Solicitor Gen., for United States:

1. The statutory provisions in question regard the Corporation, not the share holders, as tax payer.

2. Among the differences between the tax 349

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