therefore, be performed between these hours. The testimony further showed that the usual running time from Alpena to the islands and back was 12 hours, and that the steamer would be detained there, lading and unlading, about two hours. That would bring her back to Alpena about 6 o'clock Sunday evening.

Comp. Laws, § 1984, provide that "no person shall keep open his shop, warehouse, or work-house, or shall do any manner of labor, business, or work, except only works of necessity and charity,

*

on the first day of the week." Defendants' contention that this statute must be specially pleaded cannot be supported. It is true that in England, under the pleading rules of Hilary term, 4 Wm. IV., illegality of consideration must have been specially pleaded, (Potts v. Sparrow, 1 Bing. N. C. 594;) but the rule was otherwise at common law. 1 Chitty, Pl. (6th Ed.) 511. In this state illegality of consideration may be shown under the general issue. Myers v. Carr, 12 Mich. 69; Dean v. Chapin, 22 Mich. 276; Hill v. Callaghan, 31 Mich. 425; Snyder v. Willey, 33 Mich. 489. This was also held to be the proper practice under the common-law system of pleading by the supreme court of the United States in Craig v. Missouri, 4 Pet. 410, 426.

It is difficult, in this case, to see how the plaintiff can escape the application of the statute. Not only are contracts made upon Sunday void, but contracts to do any manner of work on Sunday are. equally within the inhibition of the act. Allen v. Duffie, 43 Mich. 5; [S. C. 4 N. W. Rep. 427;] Smith v. Wilcox, 24 N. Y. 353; Berrill v. Smith, 2 Miles, (Pa.) 402; Nodine v. Doherty, 46 Barb. 59; Adams v. Gay, 19 Vt. 358; Slade v. Arnold, 14 B. Mon. 287; Palmer v. City of New York, 2 Sandf. 318; Phillips v. Innes, 4 Clark & F. 234.

Nor does the fact that the contract is maritime take it out of the operation of the statute. While the ordinary labor incident to the navigation of a vessel must undoubtedly go on upon Sunday as well as other days, it is neither usual, nor, under ordinary circumstances, lawful, to load or unload upon that day, or to require seamen to do any manner of work not demanded by the exigencies of the voyage. Thus, in Pate v. Wright, 30 Ind. 476, plaintiffs agreed to purchase of defendants 3,000 barrels of flour for the purpose of shipping the same to New Orleans, and, in anticipation of the completion of said purchase, engaged a steamer to take the flour on board, and transport the same to New Orleans. Defendants were notified that the steamer would stop at the place designated for the delivery of the flour on Sunday. The court held that they were under no obligation to deliver the flour upon that day, although there was danger at that time of navigation being closed by ice, so that the steamer might be unable to complete her voyage. This, it must be admitted, is an extreme case. In the case of the bark Tangier, (Richardson v. Goddard, 23 How. 28,) a distinction was drawn between a general fast day appointed by the governor of the state and Sunday, and it was

held that there was neither a law of the state forbidding the transaction of business on that day, nor a general usage ingrafted into the commercial and maritime law forbidding the unlading of vessels. See, also, Powhattan Steam-boat Co. v. Appomattox R. Co. 24 How. 247. In neither of these cases was it intimated that the Sunday laws were inappliable to maritime transactions.

Neither is this case affected by the fact that a portion of each voyage was to be performed within Canadian waters, and that the law of Canada upon the subject of Sunday observance is not proven. Both the inception and completion of performance were to take place in this state, and the mere circumstance that, in the course of their trips, the steamers must pass beyond the boundaries of the state, does not free the contract from its taint of illegality.

A new trial must be denied.

MOWAT and others v. BROWN and others.

(Circuit Court, D. Minnesota. July, 1883.)

PRACTICE-CONTINUANCE-ABSENCE OF MATERIAL WITNESS.

Where a defendant, having good reason to believe that his co-defendant, who is a resident of Canada and has not been served, will be present at the trial as he has promised, in reliance on such promise has failed to take his testimony by deposition, and the testimony of the co-defendant is material, a continuance of the case may be granted to allow such testimony to be taken.

At Law.

Atwater & Atwater, tor plaintiffs.

A. R. Lewis, for defendants.

NELSON, J., (orally.) A motion is made in this case for a continuance on account of the absence of a material witness. The material witness is the co-defendant, who was not served with process. The suit was brought against Brown & Brown, consisting of Calvin Brown and his brother. The plaintiff resides in Minneapolis, and the co-defendant not served resides in Canada. The suit is brought upon a bill of exchange, in which both parties are interested. Issue was joined in the state court of the county of Hennepin some time in February, and the case was removed to this court some time in the month of July. The co-defendant, who was not served, it appears, according to the affidavit of the party served, was in Minneapolis in the latter part of February, this year. He stated to the co-defendant that he would be on hand ready to be a witness, and to be examined as a witness for him in the case. Calvin Brown, who was served, supposed and he had reason to believe that his co-defendant, who was equally interested in the result of the controversy, would be present in attendance as a witness, as he had so stated, and in view of that

fact his deposition was not taken, neither was he served with a summons to appear at this term, when he was in this state in February. I think, from all the facts stated in the case, that there is no doubt about the materiality of the testimony of the co-defendant, Brown, who is now in Canada. His brother was led to believe, even as late as this month,—about the sixth or seventh of this month,-that he would be in attendance, by a correspondence that he had with him. In view of these facts, stated in the affidavit, notwithstanding objection being made by plaintiff to the continuance of this case, it will have to go over the term.

The motion for continuance is granted.

UNITED STATES v. MARQUETTE, H. & O. R. Co.

Circuit Court, W. D. Michigan, N. D. July 23, 1883.)

1. RAILROADS-TAXATION OF UNDIVIDED PROFITS-ACT OF 1866-ACT OF JULY 14, 1870.

The undivided profits of a railroad corporation in 1871, carried to an account on the books of the company, known as "unexpended earnings," and used for construction, are liable to taxation under the act of congress amending the act of 1866, passed July 14, 1870, which provides that there shall be collected for and during the year 1871 a tax of two and one-half per centum * * * on all undivided profits of such corporation which shall have accrued and been earned and added to any surplus, contingent, or other fund.”

2. SAME-INTENT OF ACT OF 1870.

The statute of 1870 was intended to reduce the tax on profits from five to two and one-half per cent., but was not intended to remove from such reduced tax any part of the profits.

3. SAME-FAILURE TO MAKE RETURNS-LAPSE OF TIME.

As it was made the duty of the railroad company, under the acts of 1866 and 1870, to make returns to the proper internal revenue officer of the amount of income, profits, and taxes, when no returns have been made by the company, a failure on the part of the United States to demand such tax, or to institute proceedings to recover the same until 1881, cannot constitute a bar to an action to recover such tax when it does not appear that the delay has prejudiced the company by the disappearance or loss of evidence essential to its defense. 4. SAME-SHORTENING TRACK-IMPROVEMENTS-CONSTRUCTION.

The amount expended by the railroad company in this case for a piece of new line for the purpose of shortening its tracks properly belonged with expenditures for improvements, and having been paid from the earnings, the amount sc expended should be deducted from the amount subject to the tax,

Action of Debt.

John W. Stone, for the United States.

W. P. Healey and J. L. Stackpole, for the defendant.

WITHEY, J. The question in this case is whether a railroad company, in 1871, was required to pay an income tax on its undivided profits used for construction. In that year the Marquette & Ontonagon Railroad Company owned and operated a road in the upper peninsula of Michigan. In 1872 the road was sold and reorganized

with another road under the name of Marquette, Houghton & Onton. agon Railroad Company. By the state laws the new is liable for the debts of the former company. The gross receipts of the company, in 1871, were $578,565.93. It paid for operation expenses, repairs, incidental expenses, interest, and dividend, $417,121.06. There remained $161,444.87, were also expended during the year, together with $231,658.54, for the following purposes:

For a piece of new line, shortening the old line, and improving the grade,

58,706 57

28,537 05

128,449 46

66,042 66

111,367 67

$393,103 41

The United States claims a tax of 2 per cent. upon the balance of the earnings before mentioned-$161,444.87-as undivided profits of the company for the year 1871. The company paid the tax on the divided earnings. The railroad company contends that the undivided profits used, during the year they were earned, for construction were not subject to tax by the act of July 14, 1870, which controlled as to 1871 profits. The question arises from a change made in 1870 in the language of the provision of the act of 1866 imposing an internal revenue tax on the profits of railroad and some other corporations. The substance of the provision in the act of 1866 is this:

“Any railroad company * * that may have declared any dividend * * * as part of the earnings, profits, income, or gains of such company, and all profits of such company carried to the account of any fund, or used for construction, shall be subject to and pay a duty of 5 per centum on the amount of all such ፡ * * dividend or profits." 14 St. at Large, p. 139, §9; re-enacting section 122, act of 1864, (13 St. at Large,) p. 284.

The act of 1870, entitled "An act to reduce taxes, and for other purposes," wholly does away with such income tax after the year 1871, and reduces the tax for that year from 5 to 2 per cent. provision in question reads as follows:

The

"There shall be levied and collected for and during the year 1871 a tax of two and one-half per centum on the amount of * * * all dividends of earnings, income, or gains hereafter declared by any * * * railroad company, and on all undivided profits of any such corporation which have accrued and been earned and added to any surplus, contingent, or other fund." 16 St. at Large, p. 260, § 15.

* * *

Both acts required returns to be made to the proper internal revenue officer of the amount of income, profits, and taxes aforesaid, and impose a penalty for neglect to make such returns. Without the

proper return of income the officers of the government would not know whether there were profits other than such as were divided on which the tax was paid. And yet defendant claims that, by

not demanding the tax now sought to be recovered, the government must have construed the change in the tax provision as exempting undivided profits used for construction from the tax of 2 per cent. That the internal revenue commissioner did not require the tax to be paid till 1881, is urged as evidence of a change in the views of that office as to defendant's liability. But there is no evidence that it was known to the officers of the revenue that there were undivided profits in 1871, or that the fact was known to them until about the time this suit was brought, in August, 1881, which is a sufficient reply to the claim that in 1871 the government officers recognized the construction now contended for by defendant. This view leaves section 15 of the act of 1870 open to such construction as it ought to receive, considered in connection with the corresponding provision in the act of 1866, without its being said that any department of the government has acquiesced for 10 years in such construction of the law as contended for by the defendant. Both the provisions in 1866 and 1870 relate to and embrace profits not divided. That of 1866 is: "All profits carried to the account of any fund, or used for construction. In 1870, as recast, it reads: "All undivided profits added to any surplus, contingent, or other fund."

If the words "or used for construction" had been omitted from the clause in the act of 1866, would the scope of the provision be materially, or at all, different? Undivided profits are carried or added to construction fund as a matter of book-keeping, and, in fact, whenever they are used for construction. Do not and should not railroad companies transfer net earnings used for construction to construction fund accounts? If, as a matter of book-keeping, such is not only the proper but the usual practice, then it would not seem to affect the meaning and scope of the provision if the words "or used for construction" were omitted altogether from the act of 1866, for the congress of the United States will be presumed to have employed the language with reference to the known usage and proper practice in such cases. This view narrows the question to whether the undivided profits in question were "added" to "any fund." It is in proof, and is conceded by defendant's counsel, that these undivided profits of 1871 were carried to an account called "expended earnings," and that they were used for construction. Then it is manifest that the expended earnings account represented construction account, or construction fund, and when such undivided profits were carried to such account they were "added to a fund." In book-keeping, and within the meaning of the act of 1870, net earnings or undivided profits are added to a particular fund by proper transfer entries in the books of account. But the object of the statute is not defeated if profits used for construction are not carried into the proper account on the books; for within the meaning of the statute, and according to common understanding and experience, they must be considered as added to conv.17,no.10-46