FEDERA.L REPORTER,

vo1.5V'

L:Mr.flIuugh; ldid ni:>t lleaT the !first i,part of the' decision. Did I und8J.ilitanp :tbe courttcHo1ethitt the 'spirits, became forfeited if the date Hpdlrrrtlle;distillery wartlhl'luse stamp,arld"the date of the inspection mark were aocidentally rubb6,d' bec8imeobliterated by;.lapse oUime? .' 'l'he, Cm.t1't.'lintended ·tohave referiredto that. ",The court does not hMddhd, <if::the date on adistillerywl1rebollse· stamp is wanting for any 'ao(jdental cause,as<by unintentionally rubbed out, or by havingi!l:ie'en; <:>bIHevated' by.Iapseoftirile; that that would render the patlkage1fbJfeitable; butitlisillotthe'.duty of the government in pleading,wnegative factsoftlnat If the claimant contends that dates have been obliterated by accidental'qauses, it is his ,business to. 8, bring thall,Jfiorward"eitJjer 1z?y pl or the fact may be proven under a generahdeaiia1: ,Tbestl1tute doesnotf eentaiil anyexceptio118. It dues n9t-snyntHat'ifa package: is Jouhd withijut having upon, iMhe requisite etanipi,l.b1'Qnds, 'e'l:c",''itbeoomes 'forfeited unles8' the brand or stamp bas' beeil'rpclnovoo through accident:or mistake. If thesfutute contained pl1ovi#!ion., it wOl'lldj'pe the duty of the pleader to negative the exbutr as it dOe8"DOt, the pleading conforms to the statute, and "Hamar1£' hilS. been :removed'through accidental causes, ' :That is defensive matter, to be th"wadti"a,ntag.e of by 'plea Gt;by'8 gell:ei'aldeniaI. The government is nOf"bGnUad:,to negative .tb1br, existence of; BUeha fact.
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. " Thellitnllrupt contrlictAla"t:Omaki weekly1dbliveries hf oleomargoarine or fat in " DeltvetiEls of wel'a made weekly for 10 weeks, tbe,s,l,lort and notic(! being given that dam'ages thehlfor'would be'claim:ed.' At toe' etld''Of lO'weeks further acceptance was df claim agoainst bankrupt, that tbawe"lWy, th,e oontracted,!or waS.no waiver of dam. ages;ail);ll'ovided by'tlie cSbDtract, 'for noiJ.llelivery of the residue; that the r6scil!-' sion ,of tbe '(lQntnict at: !\ii;\eLllnd ,91 Wiweeks'.wasjustitl,aQle, and was no release or waiver of a'!crued for th¢ vreviousshon deliverie,s, but that no datnage!l'cd12'!d be'claimed for the nondelivery of theainounts due after the A theclailJl wail:ordered on theaboYe ba,llis·.
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WAIVlCR

,ell'

·Olr';CI,AIIII-Stl6R'l'. DELIVERY UNDER CON'rRAQT-REPJ\IO;lt DAIIIA(lES7"A BAR DAMAGES·

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,In Bll,.hkr.u:Vllcy.

allow.ecl.. ,ini ". '

claim. :Claim reduced and

The claim was founded on a contract made by the bankrupt to deliver fbtin,specifiedquantities ' weekly. He made delivedes.of ,lesslamouniaweekly for 10 'weeks,c<:>mplaintbeing;made a'nrlnotice thatdarri$ges would ,be claimed :therefor. At toe end of that time further/acceptance: Vi'IULnl{used. Mr.,Nottman, of counsel for the claimant, caused this entry to be made upon the record:

195
"Mr. Nottman states that itliis claim Was flied on the 26th day of November, 1877. and that no specifications or objections bad ever been tiled, nor any,criticism raised. until a ,notice the day ot August, 1l:ll:lQ" to the effect that the. claim wO,Qld be brougbtup fOr examination bEl" fore the, register in bankruptcy on the _-'- day of, 1l::l83;, tba. the assignee bas lost his l'ight, by reason of 1ach,·s and. delay and failure to file to move for or have any re-examination' of the claim." '

At th'e heliring, the assignee and his counsel that the original claim, which, by thepriilted case, appeared to have been sworn to veniber 1l,l, 1877, was lost and mislaid, aud an aluended claim, or, rather, deposition for proof of claim, was filed afterwards by the claimant a:£''the regllest of th.e then counsel forthe assignee, and that, as as thisllmended claim was filed, the assignee forthwith obtained' an order from the register for the re-examination of the a,mended claim, and as soon as this was done the original claim turned up, it having been mislaid in the office of the clerk of the United States district court; so that one reason of the delay of the assignee in moving for the re-examination of the proof of claim was the loss of the original claim, and delay of the claimant in filing an amended claim. A second excuse for the delay was t,hat proceedings were instituted by some of the creditors to have the adjudication oftne bankrupt, as such, declared null and void, and litigation on this question continued several years; and, furthermore, the assignee did not ,receive assets from the bankrupt estate from which he was able to realize any money until about the time he moved to have the claim re-examined. ' Butler, Stillman Hubbard and Mr. Nottman, for the creditor. WiUiam A. Abbott, for the assignee.
BROWN, District Judge. The record does not show the date when the claim was first filed. If the statements of counsel be taken as to this date, and the reasons for the delay, there were. no such laches as properly to exclude a re-examination. 2. 1'hebankrupts, for 10 weeks after the time at which deliveries were agreed to be made by the contract, made short deliveries, instead of the whole amount agreed on. Mr. Thalon, the agent in New York, frequently complained, or transmitted the complaint of his principals, on account of these short deliveries. The acceptance by him of so much of the oleomargarine or 1at as he could get, 'Was no waiver of the right to the rest, nor of hjs lawful claim under the contract for the special damages agreed on in case of short delivery. 3. The letters of the 29th of December, 1876, and January 3, 1877, terminated the contract, so far as respected any further future deliveries under itjbut this was neither a waiver, nor a release, of the liability, or of the vested right of action for damages, which had already accrued on the. bankrupts' previous defaults. " 4. The evidence, in my judgment, is not sufficient to establish any express waiver by Mr. Thalon of the delivery of the weekly amounts reqU:ired by the cCintract, or any promise or intimation, or understanding, from him that the liability for short deliveries would be waived; nor is

J'BDDAL REPORTER,

vol. 51.

,apyevidence Thalonhad any power to make any such waiver. The correspondence shows ;that the bankrupts fully understood thaHheir short deliveries under the contract subjected them to a legM,obligation in ThE;ly desired to, be ,relieved from it, but they never obtainedany such release; nor do I find that the short a,fter for such a release, or waiver, were by them, or were l'eceived by Mr., 'rhalon, on any understanding that their liability for any shott deliveries would be waived, or that the dontract lfasin any respect to be varied. The verbal testimony to is insufficiehtj Itwas given eight years after the transaction; it was denied by Mr. Thalon, and finds no support in any writings. delivered for 10 weeks !vas only about one fifth of the amount agt'eed to be delivered, and was almost wholly fat. The complaiJ:ltshad'been numerous, aud no substantial improvement made in the bankrupts' deliveries. The creditor was justified in putting an end to further deliveries under such circumstances, and to claim damages for the breaches of contract up to that time. For there was never a sihgle by the bankrupts of their contract, and never any tender .of performance. It follows that the creditor, Jules Mason, is entitled to prove at the stipt;tlated rate of 1 cent per pound fOr 2,613,472 pounds, the deficiency during 10 weeks up to the' 29th of December, 1876, amounting to $26,134.72, to which amount; with interest from that date, the claim ehould be reduced, and for that amount allowed.

CARICO t1·. WILMORE,

County Jailer.

(DiBtrict 001.lll't, W. D. Virginia. January 12, 1809.)

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UNITED STATES MARSIj;ALS-POWER TO ARREST WITHOUT WARRANT-VIOLATION OY REVENUE LAWS.

Under Rev. St.$ to United States marshals and tbeir deputies the powers possessed by sheri1fs of the states, a deputy marshal in Virginia has power to arrest without awarrant a person who,in his presence, has in possession Whisky for the purpOse of selling, tbe same witllOut payment of the internal revenue tax, in violation of Rev. St. U. S. S3452.

.. SAlIE-EvIDENOE-REMoVAL OP CAUSBBo

.'coUrt; .

A deputy United States marshal,having been informed that two men were sellWhisky in tbe neiib.borbood in violation of the revenue laws, met them a few mlDutes later in the htgbway carrying a keg. He asked what was in the keg, and and they A little whIsky." One of them said, "Who the hell are you 1" and he replied, "A aeputy marshal." The former then said that no deputy marshal shOUld arrest him, and drew his pistol, whereupon the aeputy shot and killed him. Held, that tb,edeputy was justified in presuming that, tbey had the whisky for the purpose of.selling the same in violation Of the revenue laws; and that whether it was his intentIon to arrest them, or to make further inquirics as to Whether they had beep. engaged iil violating tile revenue laws, he was acting within the scope of his authority; and, a prosdcution having been commenced against him in the state court for mUrder, he was entitled to have the same removed to the federal circuit

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At for a writ ()f Joseph H. Carico against W. D. Wiltn()re, jailer OfSlllyth county, Va.
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