If the assessment in question had been col lected, Clinkenbeard could not have maintained an action, upon the ground that the same was erroneous, until he had first appealed for relief to the commissioner. Collector v. Hubbard, 12 Wall., 1 (79 U. S., XX., 272). This rule does not affect the case at bar. It would be a violation of all rules of justice and equity to deprive the defendants of their right to aver and prove performance of the conditions of their bond.

If the assessment, as against Clinkenbeard, is conclusive, it by no means follows that his sureties are thereby barred from availing themselves of any defense which they might have in a suit against them upon their bond.

U. S. v. Boyd, 5 How., 29. Surely it would not be claimed that the mere assessment against one who had never been a distiller would oblige the person so assessed to appeal to the Commissioner for relief. He might well stand upon his legal rights, and treat the assessment as a nullity; as one might do the judgment of a court which had never acquired jurisdiction.

If this be true as to one who had never been a distiller, why is not the same principle equally applicable to one who, for the time being, either by operation of law or at his own election, had ceased to be one?

Messrs. Geo. H. Williams, Atty-Gen., and S. F. Phillips, Solicitor Gen., for defendant in

error:

1. The case does not show that the assessment was upon the capacity of the distillery. It may be that the quantity of material returned by the distiller as actually used by him during the month, warranted the assessment made, and that there was no need to apply the rule of the statute merely imputing eighty per cent. production. The assessment in question may amount to more than eighty per cent. We see nothing in the case to warrant the assumption in the brief of the learned counsel, that this was a mere capacity tax.

If the assessment were because of material actually used, there is no ground for the argument submitted for the plaintiffs in error.

month; that said deficiency was duly assessed, together with the special tax of $4 for every cask of forty proof gallons of said 38,901 gallons, as required by law, which deficiency is still due and unpaid. "Nor has said Clinkenbeard * * paid the tax which has been duly assessed upon the aggregate capacity of the said distillery for making and fermenting grain for the month aforesaid." The defendants pleaded non est factum and performance, on which pleas, issue was taken.

The plaintiffs at the trial gave in evidence the assessment for deficiency referred to in the declaration. The defendants offered in evidence Clinkenbeard's tri-monthly returns regularly made on which he had paid the tax, and then offered to show that on the first four days for which taxes were assessed against him by said assessment of deficiency, he was unable to operate his distillery because no storekeeper had been assigned by the Government to said distillery; and that for four other days, viz.: from the 8th to the 12th October, he had, by reason of an unavoidable accident, been unable to operate said distillery; that he had given notice required by law, of the accident (which notices were produced) and that the machinery during said time was securely fastened by an assistant assessor and remained fastened as required by law; and that said four days were included in said assessment for deficiency.

This evidence was overruled, and a verdict was rendered for the sum of $4,000 against the defendants. A bill of exceptions was taken and the question here is, whether the defense offered by the defendants was competent or not.

If the facts were as set up in the defense, it is difficult to see how the assessment could have been legal. The distiller, without any fault of his own, but by the omission of the Government itself, was prevented from operating his distillery for the first four days for which he was taxed, and his distillery was inactive from an accident, and in charge of a government officer, as prescribed by law, for four other days. He could not, without a breach of law, commence distilling till a storekeeper was assigned him, and he acted in compliance with the law when his distillery was stopped by accident. To charge him with the capacity tax during those eight days was unjust and oppressive.

It is suggested by the government counsel that the case does not show that the assessment was upon the capacity of the distillery; that the quantity of material returned by him as actually

The plea is joint. Unless the defense made out under it is good for all, it fails for all. The sureties should have severed from Clinken beard in their plea, in order to raise the point submitted here.

U. S. v. Linn, 1 How., 104.

Mr. Justice Bradley delivered the opinion of the court:

This was an action of debt, brought against principal and sureties on a distiller's bond, dated Sep. 11, 1868.

Breach, that for the month of October, 1868, Clinkenbeard (the principal) distilled 38,901 proof gallons of spirits, and there was a defi

assessment. But the offer was, to show that the assessment included those eight days, and the declaration charges, as a breach, that Clinkenbeard did not pay the tax assessed upon the aggregate capacity of the distillery for the month in question. So far as appeared, the facts set up in defense rendered the assessment clearly illegal.

But another point raised by the government counsel is that the assessment, not having been appealed from, was res judicata and conclusive, and defendant was precluded from showing the contrary.

It is true that the Internal Revenue Act of 1864 authorizes the Commissioner of Internal Revenue, on appeal to him made, to remit, re

James, 7 R. I., 312; U. S. v. 688 (70 U. S., XVIII., 268). Independently of this, the plaintiff had a right to refuse to accept the plants in a damaged and deteriorated condition. The defendant was bound to return them in the same good condition as when received by him.

Parker v. Simonds, 8 Met., 205; Young v. Willet, 8 Bosw. (N. Y.), 486: Suydam v. Jenkens, 3 Sandf.,614; Brizsee v. Maybee, 21 Wend., 144; Schuyler v. Sylvester, 4 Dutch., 488.

Mr. Justice Swayne delivered the opinion of the court:

There was no rejoinder to the replication. Upon this state of the pleadings the case went to the jury.

Upon the trial the plaintiff offered evidence tending to prove the value of the goods and chattels when they were delivered by the Mar

bia.

The action was upon a penal bond executed by the plaintiff in error, in the sum of $11.000. It recited that William Douglass, as admin istrator, etc., had sued out against Henry Douglass a writ of replevin under which had been seized and delivered to William as administrator, the articles mentioned in the writ; that Henry had moved the court to return the ar ticles to him, and that the court ordered their return upon his giving bond as required.

The condition of the bond was as follows: "Now the condition of this obligation is such that if the said Henry Douglass shall and will return all the goods and chattels in said declaration mentioned, if the same be adjudged, and in all things stand to, abide by, and perform and fulfill the judgment of the said court, then the above obligation to be void; otherwise to be and remain in full force and virtue in law."

The declaration averred that it was adjudged in the suit that the property of the articles was in William as such administrator, and that it was considered by the court that they should be restored to him, that he should recover of Henry $537.23 for costs, "And that he have execution for the return of said goods and chat tels, and for said costs of suit.'

The breach alleged was "That the said Henry Douglass did not return and deliver up the said goods and chattels to the said William Douglass, administrator as aforesaid, or well and truly abide by and perform and fulfill the judgment of the said court in the premises, but hath hitherto wholly neglected and refused so to do, and still doth so refuse and neglect, whereby the said writing obligatory hath be come forfeited to the said plaintiff."

The defendant filed four pleas:

1. That he did not commit the breach alleged.

2. That he did not neglect and refuse to abide by and fulfill the judgment of the court.

3. That the plaintiffs caused a writ of de re torno habendo to be issued, and that in execution of the writ the Marshal seized the goods and chattels mentioned in the declaration and tendered them to the plaintiff, who refused to receive them.

4. That he did deliver to the plaintiff the goods and chattels mentioned in the declaration, as he was bound to do.

The third and fourth pleas concluded with a verification.

The first and second concluded neither with a verification nor to the country.

to prove that they were seized by the Marshal at several times under two writs of de retorno habendo, issued upon the judgment in favor of the plaintiff, and tendered to the plaintiff by the Marshal; that the plaintiff refused to receive them; that they were then in a changed and damaged condition, and hence his refusal. The evidence was admitted and the defendant excepted.

The defendant offered evidence tending to prove that, under the two writs of de retorno habendo, the goods and chattels had been seized by the Marshal and tendered to the plaintiff; that he refused to receive them and that, upon one of the occasions when they were so seized, the plaintiff was present, and objected only to a few of the articles as not included in the original suit; that the deputy-marshal who served the writ and made the seizure instructed the plaintiff to furnish means of removing the articles from the premises of the defendant, which he refused to do; and that, thereupon, the deputy left them where he found them, without any consultation or understanding with the defendant, and that the defendant never accepted them from the Marshal. The plaintiff objected to the evidence; the court excluded it and the defendant excepted.

The defendant prayed the court to instruct the jury that the tender to the plaintiff, by the Marshal, discharged the obligation of the bond. The court refused and the defendant excepted. The plaintiff thereupon asked the following instructions.

1. That the proceedings under the writs de retorno habendo did not bar the plaintiff's right to recover.

2. That unless the defendant had offered to return the goods and chattels, he was liable for their value at the time they were delivered to him by the Marshal with interest from the date of the judgment of return.

These instructions were given and the defendant excepted.

The pleadings subsequent to the declaration are of an anomalous character. But as the defendant's exceptions disclose ample ground for the determination of the case, it is unnecessary further to remark upon them.

The exceptions we have stated are all well taken.

The central and controlling question in the case is the effect of the seizure of the property by the Marshal, and its tender to the plaintiff. He sued out the writ. It went into the hands of the Marshal by his procurement. He was

The Marshal acted for him. He cannot be permitted to play fast and loose with the process he invoked. The Marshal's possession was his possession. As soon as it was taken, the efficacy of the bond touching the return of the property was at an end. The bond stipulated for the return of the property and nothing more in relation to it. We cannot interpolate what the contract does not contain. Our duty is to execute it as we find it, and not to make a new

one.

The seizure and tender satisfied the judgment of return and the defendant's obligation. Carrico v. Taylor, 3 Dana, 33. Neither could be revived by the plaintiff's refusal to receive the property. The refusal was of no legal consequence.

If the defendant injured the property, or culpably suffered it to become injured while it was in his possession, a remedy must be sought in some other appropriate proceeding. It cannot be had in a suit on the bond.

If no writ de retorno habendo had issued, it would have been the duty of the defendant to seek the plaintiff and deliver the property to him if he would receive it. Had the defendant failed to do this, there would have been a breach of the bond and he would have been liable. The action taken by the plaintiff obviated the necessity of his doing anything in that way.

The judgment is reversed, and the case will be remanded with directions to issue a venire de novo, and proceed in conformity to this opinion. Cited-22 Wall., 214.

(See S. C., 21 Wall., 105-111.)

Illinois statute-improper testimony, when no ground of error-interest on account, when al lowed.

1. Under the Statute of Illinois, proof of the partnership or joint liability of either the plaintiffs or defendants is unnecessary in the first instance.

defendants in error, to recover for certain goods alleged to have been sold and delivered. Judgment having been given in their favor, the defendants in that court sued out this writ of error. The case sufficiently appears in the opinion of the court.

Messrs. S. W. Packard and E. L. Stanton, for plaintiffs in error:

The mere fact that the plaintiffs have, in the commencement of their declaration, added to the names of the defendants the words "copartners doing business as C. & G. Cooper & Co.," does not amount to an averment that they contracted or promised as partners.

It is mere surplusage, or descriptio personarum, and has been so held by the Supreme | Court of Illinois, in a similar case arising under this same statute.

Vide, Johnson v. Buell, 26 Ill., 66; vide, also, Neteler v. Culies, 18 Ill., 188; Woodworth v. Fuller, 24 Ill., 109, construing a similar statute relating to plaintiffs; Brent v. Shook, 36 Ill., 125; 1 Chit. Pl., 204, and cases cited in note; 1 Saund. Pl. & Ev., 1148; 1 Tidd, Pr., 13; Henshall v. Roberts, 5 East, 150, per Lord Ellenborough; Merritt v. Seaman, 6 N. Y., 172; Delafield v. Kinney, Pres. of the Erie Co. Bank, 24 Wend., 345; Hunt v. Van Alstyne, 25 Wend., 605; Ogdensburgh Bank v. Van Rensselaer, 6 Hill, 240; Christopher v. Stockholm, 5 Wend., 36; Woodford v. Webster, 3 Day, 472.

In Illinois, the whole subject of interest is regulated by statute.

Sec. 2. ch. 54, Rev. Stat.: Gross, Stat., 3d ed., p. 370; Scates, Stat., p. 599; Purple, Stat., p. 633, declares: "Creditors shall be allowed to receive at the rate of six per centum per annum for all moneys after they become due on any bond, bill, promissory note or other instrument of writing, on any judgment recovered before any court or magistrate authorized to enter up the same within this State, from the day of signing until the effects are sold or satisfaction of such judgment be made; likewise on money lent or money due on the settlement of accounts, from the day of liquidating accounts between the parties and ascertaining the balance; on money received to the use of another and retained without the owner's knowledge, and on money withheld by an unreasonable and vexatious delay."

account draws interest.

4. A sale of goods without a term of credit given is liquidated when contracted, and after the account is presented and impliedly admitted, the defendants are in default and chargeable with in

terest.

[No. 74.]

of one thing is the exclusion of another, and it may well be insisted, when the Legislature has enumerated a variety of cases in which creditors shall be allowed to receive interest, that it was not their intention to permit them to demand it in the cases not enumerated. Dwarr. Stat., 713; King v. Cunningham, 5 East, 478; The Warden of St. Paul v. The Dean, 4 Price, 78.

In Aldrich v. Dunham, 16 Ill., 403, the suit, is a right which cannot be construed into court decides that "To appear and defend a unreasonable and vexatious delay of payment." Mr. O. K. A. Hutchinson, for defendants in error:

It was not necessary, in this case, for plaintiffs below to prove that they were partners or joint payees:

1 Stat. of Ill. by Gross, 270, sec. 11; Heintz v. Cahn, 29 Ill., 308.

Or to prove the partnership or joint liability of defendants.

1 Stat. of Ill. by Gross, 270, sec. 12; Warren v. Chambers, 12 Ill., 124; Stillson v. Hill, 18 Ill., 262; McKinney v. Peck, 28 Ill., 174.

There being no evidence that the sale was upon credit, no controversy as to the amount due, and no reason for delay in payment, there was an implied promise to pay for the goods on delivery, and the court properly instructed the jury to allow interest as damages from the date of the receipt, by defendants below, of the iron forming the last item in the account.

Mills v. Bank of U. S., 11 Wheat., 431; Waring v. Henry, 30 Ala., 721; Shields v. Henry, 31 Ala., 53; National Lancers v. Lovering, 10 Fost. (N. H.), 511; Close v. Fields, 13 Tex., 623.

Mr. Justice Hunt delivered the opinion of the court:

The objections in this case are none of them serious in their character.

By the rules of common law, it is certainly necessary that parties who sue as co-plaintiffs, alleging themselves to be partners, shall make proof of that allegation. The same is true of persons who are alleged to be copartners and sued as such as defendants. By the Statutes of Illinois, the rule of law is changed in this respect unless a plea in abatement is interposed or verified pleas are filed denying the execution of a writing set up. The statute rendered unnecessary, in this case, proof of the partnership or joint liability of either the plaintiffs or defendants. Gross, Stat., vol. 1, p. 207, secs. 11, 12; Warren v. Chambers, 12 IIl., 124; McKinney v. Peck, 28 Ill., 174.

The objection to the evidence of the witness, White, in stating the dates of delivery and the weight of the iron, is not practical. If we suppose the evidence to be stricken out, as requested, the result of the case must necessarily be the same. It would then stand thus: the witness, White, testifies that he knows of the delivery to the defendants of certain plates of iron, forwarded by the Baltimore and Ohio Railroad Company, in January and February, 1870; that the freight bilis were paid by the defendants, and that the defendants made no complaint that the amount of the iron was less than it should be. The plaintiffs then proved by other witnesses that the four bills of iron were shipped by them, by the Baltimore and Ohio Railroad, to the defendants, in pursuance of written orders from them, marked C. & J. Cooper & Co., a few days prior to the dates mentioned in White's deposition; that the bills of lading for the iron were mailed to the defendants, and that they never came back to the plaintiffs. This was prima facie evidence of the delivery of the iron as specified and, no proof to the contrary being offered, it became conclusive. The plaintiffs' case is as well without White's evidence as with it. The defendants suffer no injury by its retention, and have, therefore, no legal cause of complaint. Shay v. People, 22 N. Y., 317; Sherman v. Johnson, 56 Barb., 59; Weber v. Kingsland, 8 Bosw., 415. The objection to the allowance of interest was not well taken. So far as the case shows, this was the only transaction that ever took place between the parties; and it is not pretended that any payments were made or arti

cles furnished by the defendants which could give the transaction the character of a mutual account. It was simply the case of a bill of goods furnished upon a written order, and a bill of lading of the articles at once mailed to the defendants. No objection was made by the defendants to the articles or to the account. A draft was drawn upon the defendants for the amount, which they refused to accept. This was equivalent to a demand of payment. An account (assuming this to be such) draws interest after liquidation, and it is considered liquidated after it is rendered, if no objection is made. Patterson v. Choate, 7 Wend., 441.

A sale of goods without a term of credit given is liquidated when contracted, and after the account is presented and impliedly admitted, the defendants are in default and chargeable with interest. Beers v. Reynolds, 11 N. Y., 97; Pollock v. Ehle, 2 E. D. Smith, 541. The judgment is affirmed.

2. The law prohibits one who sells on another's account from becoming a buyer on his own at the sale; but where the principal has adopted and approved of the transaction and long acquiesced in it, he is concluded from questioning it. cifically any impediments to an earlier prosecution

3. Where the complainant does not set forth speof a state demand, nor when he first became acquainted with his supposed wrongs, but only states that he was not aware of the purchase of the subject of the action by the defendant until lately, the language is altogether too vague to invoke the action of a court of equity. [No. 54.]

Argued Nov. 5, 6, 1874. Decided Nov. 23, 1874.

NOTE.-Attorney's liability to client, for negligence. Where a client has sustained damage through the gross negligence or gross ignorance of his attorney, he is entitled to maintain an action against him for damages. Hatch v. Fogerty, 10 Abb. Pr. N. S., 147; S. C., 40 How. Pr., 492: Rob., 488; Hopping v. Quinn, 12 Wend., 517: Estate of A. B., 1 Tuck., 247 Godefroy v. Dalton, 6 Bing., 460; Pennington v. Yell, 11 Ark., 212; Hogg v. Martin, Riley, 156: Sevier v. Holliday, 2 Ark., 512; Palmer v. Ashley, 3 Ark.. 75: Evans v. Watrous, 2 Port., 205; Purves v. Landell, 12 C. & F., 91; Wilson v. Russ, 20 Me., 421; Kemp v. Burt, 4 Barn. & Ad., 424; Laidless v. Elliott, 3 Barn. & C., 738; Pitt v. Yalden, 4 Burr., 2060; O'Barr v. Alexander, 37 Ga., 195 Mass., 574; in re Spencer, 21 L. T. N. S., 808; S. C., Holmes v. Peck, 1 R. I., 242; Caverly v. McOwen, 123 39 L. I. Ch., 841; Morrill v. Graham, 27 Tex., 646; Lee v. Dixon, 3 Fost. & F., 744; Parker v. Rolls, 14 C. B., 691; Eggleston v. Boardman, 37 Mich., 14. Client must be in some way injured by the negli gence, or he cannot maintain an action even for nominal da mages. Harter v. Morris, 18 Ohio St., 492: Grayson v. Wilkinson, 13 Miss., 268; Suydam v. Vance, 2 McLean, 99.

Where an attorney disobeys the lawful instructions of his client, and a loss follows, he is responsiwhat he supposed the interest of client. Wilcox v. ble for it even though he acted in good faith, for Plummer, 29 U. S. (4 Pet.), 172; Gilbert v. Williams