a tax of 3 per centum on the gross amounts of the plaintiff's receipts from his business, under the provisions of section 104 of the act of June 30, 1864, c. 173, (13 St. at Large, 276,) which enacted, "that any person, firm, company, or corporation carrying on or doing an express business, shall be subject to and pay a duty of 3 per centum on the gross amount of all the receipts of such express business." The suit was commenced June 2, 1874. The plea was the general issue. The statute of limitations was not pleaded. A jury having been waived by a written stipulation of the parties, the action was tried before the court without a jury. The court found the fact of the dates and amounts of the exactions, and these further facts: The plaintiff's business was the carrying of goods between New York and Brooklyn, and from one place in the city of Brooklyn to another place in the same city. He did not run regular trips, nor over regular routes or ferries, but where ordered. He had a place in Brooklyn where he received orders on a slate from persons who wished articles sent from there to New York, and from one place in Brooklyn to another place in Brooklyn. The goods were carried in wagons. They were of a miscellaneous character, such as boxes of dry goods, barrels of sugar, rolls of sole leather, trunks, and general merchandise. His business was done solely upon call, and at special request, and, as requested, he sent to any place in either of said cities and took baggage or freight to any place in either of said cities. On the twenty-eighth of May, 1873, he presented to the commissioner of internal revenue a claim, supported by his own oath, for the refunding to him of the moneys so exacted as taxes. No decision was ever made on the claim. The court found, as conclusions of law, (1) that the tax was illegally exacted; (2) that the action was barred by section 44 of the act of June 6, 1872, c. 315, (17 St. at Large, 257.) A judgment was rendered for the defendant. To reverse that judgment the plaintiff brought this writ of error.

There is in the record a bill of exceptions which shows that, after the plaintiff had given evidence to establish the facts so found, the defendant offering no testimony, the plaintiff requested the court to render judgment for the plaintiff, but the court refused, and the plaintiff excepted, and the court directed a judgment for the defendant, and the plaintiff excepted.

We are of opinion that the plaintiff was not liable to this tax, because he did not carry on or do an "express business," within the meaning of the statute. Although he carried goods between New York and Brooklyn, and from one place to another in either city, he did so solely on call and at special request. He did not run regular trips or over regular routes or ferries. He was no more than a drayman or truckman, doing a job when ordered. The fact that he had a place in Brooklyn where orders could be left on a slate made no difference. The words "express business," in the statute, must have the meaning given them in the common acceptation. An "express

business" involves the idea of regularity, as to route or time, or both. Such is the definition in the lexicons. Whether, if the plaintiff had held out to the world, at any place of business, that he was carrying on an "express," or was doing an "express business," or had so designated himself by inscription on his vehicle or vehicles, that would have made any difference, it is not necessary to inquire, because no such thing was shown.

As to the defense of the statute of limitations, it was not pleaded, nor brought to the attention of the court, as a defense, at the trial. It was not within the issue raised by the plea of the general issue, which was the only issue to which the stipulation for a trial by the court extended. It is well settled that, in the absence of a contrary rule established by statute, a defendant who desires to avail himself of a statute of limitation as a defense must raise the question either in the pleading, or on the trial, or before judgment. Storm v. U. S. 94 U. S. 76, 81; Upton v. McLaughlin, 105 U. S. 640. Such was always the law in New York, and no contrary rule was in force in New York, by statute, at any time after this suit was brought. When the testimony at the trial closed, and the plaintiff asked for a judgment in his favor, he was entitled to it. It is proper that the circuit court should be directed to enter such a judgment. The conclusion of law, by the circuit court, that the tax was illegally exacted being a correct conclusion, and its conclusion that the suit was barred by limitation being an incorrect conclusion, it follows that the plaintiff was entitled to judgment on the facts found. The special findings of fact were equivalent to a special verdict, and the question thereon was whether they required a judgment for the plaintiff or the defendant. This was a matter of law, the ruling on which can be reviewed by this court. Norris v. Jackson, 9 Wall. 125.

The defendant in error asks that, if the judgment be reversed, the case be remanded, so that the statute of limitations may be pleaded. Without passing on a question as to whether the statute invoked would furnish a defense in this case, we are of opinion that no ground exists for the course suggested. The record shows that the defendant's attorney had notice, by the declaration, that the plaintiff's claim accrued before a date more than eight years prior to the filing of the plea. Under such circumstances it would not be a fair exercise of discretion not to hold the defendant to his legal status.

The judgment is reversed, and the case is remanded to the circuit court, with directions to enter a judgment for the plaintiff for $61.30, with interest according to the law of the state of New York.

(109 U. S. 235)

LAMAR, Ex'r, etc., v. McCAY.1

(November 19, 1883.)

DECREE OF CIRCUIT COURT REVERSED-QUESTION OF FACT.

On the question of fact, as to whether the proceeds of certain cotton had been recovered and received from the United States as part of the proceeds of cotton recovered for in the court of claims, the decree of the circuit court is reversed, and the case remanded, with direction to dismiss the bill.

Appeal from the Circuit Court of the United States for the Southern District of New York.

E. N. Dickerson, for appellant.

S. Shellabarger, J. M. Wilson, and J. K. Herbert, for appellee. BLATCHFORD, J. The appellee, who was the plaintiff below, seeks to recover from the executor of Gazaway B. Lamar a sum of money, on the allegation that the testator received that money from the United States as the proceeds of 136 bales of upland cotton which belonged to the assignor of the plaintiff. Lamar recovered in the court of claims, on the first of June, 1873, a judgment against the United States for $579,343.51, as the proceeds of 3,184 bales of upland cotton and 91 bales of Sea island cotton, which Lamar owned in Savannah, Georgia, in December, 1864, at the time that city was captured by the military forces of the United States, and all of which bales were captured by said forces and shipped to the agent of the treasury department at New York, and there sold by him, and the proceeds paid into the treasury of the United States. The amount of the judgment was paid to Lamar in April, 1874. This bill was filed in August, 1879. It alleges that the 136 bales were shipped by the plaintiff's assignor to C. A. L. Lamar, now deceased, (the son of G. B. Lamar,) who received and held them as the property of such assignor; that, after the death of C. A. L. Lamar, G. B. Lamar came into possession of the 136 bales and retained such possession as the agent and fiduciary of such assignor; that the suit in the court of claims was brought for the recovery of the 136 bales, with other cotton; and that the proceeds of the 136 bales were included in said judgment, and were received by G. B. Lamar. The circuit court entered a decree in favor of the plaintiff for the agreed amount of the avails of the 136 bales, and the defendant has appealed to this court.

On the question as to whether the 136 bales were embraced in Lamar's recovery, the circuit court found that they were. We are not able to concur in this conclusion. The question is one altogether of fact. It has involved the examination of the pleadings and proofs and other proceedings in the suit in the court of claims, besides a

18. C. 12 Fed. Rep. 367.

*237

consideration of the effect of the provisions in the will of G. B. Lamar, and of an advertisement he published, and of entries he made in his books, in regard to the 136 bales, after he had received the amount of the judgment. It would not conduce to any good end to review the propositions discussed by the respective counsel, consisting largely of arithmetical calculations, in elucidation of their respective contentions. It must suffice to say that the record and proceedings of the court of claims do not show that the 136 bales were embraced in the final petition of G. B. Lamar in that court, or in the 3,275 bales for which judgment was awarded. There is not in the proofs before the court of claims any testimony in regard to the 136 bales. It may very well be that they passed into the possession of G. B. Lamar, and were seized and sent to New York and sold, and that their proceeds are now in the treasury. But the evidence before the court of claims was entirely sufficient to show that G. B. Lamar was entitled to recover the proceeds of the 3,275 bales for which he did recover, without including the 136. Every bale of the 3,275 is traced, in that evidence, into the hands of G. B. Lamar, and identified as cotton which he had purchased and paid for, as a buyer of it. The 136 bales were no part of it.

The will was made in September, 1872, nearly eight months before the final petition was filed in the court of claims. That petition omitted to mention the 136 bales, they having been specially mentioned in the amended petition filed April 16, 1872, which was the petition pending when the will was made. The final petition states that it is filed "in lieu of and as a substitute for all other petitions and amendments thereto heretofore filed in this cause."

99

The 136 bales, with other cotton, having been taken from the possession of G. B. Lamar and sold, he made, as he states in his will, "claims upon the government of the United States for payment for such cotton," which claims, the will says, "are now before the court of claims, and also before the committee on claims of the congress of the United States." The will directs his executors to press the claims, and gives a list of the cotton, and specifies, among it, the 136 bales, as "belonging to a gentleman in Richmond, Virginia," and as being cotton on which C. A. L. Lamar made advances. G. B. Lamar did, in his amended petition filed in the court of claims, April 16, 1872, make a specific claim for the proceeds of that cotton. But he dropped that claim in his final petition, and had no recovery for it. He did not receive his money till more than 10 months after he obtained judgment. The impression was on his mind that he had recovered for the 136 bales, and, under that erroneous belief, he advertised in a newspaper in Richmond for the rightful owner of the cotton to come forward and prove his ownership, and pay advances and expenses of collection, and receive the balance due. The advertisement stated that the cotton was placed in the possession of C. A. L. Lamar, and stored in Lamar's warehouse; that advances were

made on it, and there were charges for storage, compressing, and cartage; that the cotton was taken by the United States; and that he had received payment for it from the treasury. He also, in April, 1874, made entries in his books stating that he had received so much money from the United States for the 136 bales, "of which the owner is unknown, and is advertised for in Richmond, Virginia.' The evidence derived from the advertisement, and the entries in the books, is of no force except to show Mr. Lamar's own belief at the time, and cannot avail to control the internal evidence afforded by the record from the court of claims, that the 136 bales were not included in the recovery in that court.

This conclusion makes it unnecessary to consider any of the other questions raised. The decree of the circuit court is reversed, and the case is remanded to that court, with direction to dismiss the bill of complaint.

(109 U. S. 297)

WALSH, Com'r, etc., v. PRESTON.1

PRESTON V. WALSH, Com'r, etc.1

(November 19, 1883.)

COLONIZATION CONTRACTS-PROFITLESS DECREE IN EQUITY-JURISDICTION— MERCER COLony-Suit against State OFFICERS-EXECUTORY CONTRACTS AND CONDITIONS.

The decree of the circuit court, on a bill founded upon a colonization contract bebetween the state of Texas and Charles F. Mercer, grants to the complainant the injunction prayed for, and restrains the land commissioner of the state of Texas from ever granting to any one, except the complainant, certificates of land within the bounds of the Mercer colony, or from hindering the complainant or his agents in the surveying or platting of such land, or performing the conditions devolving upon him under the stipulations of the contract. Held, that such decree cannot be upheld. Its effect is merely to tie up the hands of the state without any adjustment of the conflicting claims of the state and the plaintiff to these lands, which, indeed, there could not be in this suit; nor is the plaintiff granted any positive relief whatever; no right to any specific land is affirmed, nor any attempt made to define what he is yet to do or what he may do, to perfect his right to any land whatever; things are left forever in statu quo.

This decree against a state officer is, in effect, one which seeks to control the state of Texas in the disposition of its property, and is a decree of specific performance against the state, in a suit to which the state is not a party, and over whom the court has no jurisdiction.

The contract was an executory one, and not, as claimed, a grant in præsenti, and its essential condition not having been performed within the specified five years, it is too late to attempt to enforce them nearly 35 years afterwards, when the total condition of affairs is so changed as to render such performance in many respects impracticable.

1S. C. 10 Fed. Rep 315.