The Barkentine Lizzie Merry.

chase, that he should continue to command the vessel so long as he held this interest. He bought, and was encouraged to buy, the interest formerly held for the benefit of Lawrence, in the expectation that he would be appointed master, as indeed he was, and he gave for it a larger price than the share was worth to anybody else, because he expected to be master; but nothing took place between the parties impairing in any way the rightful authority of the majority in interest at any time to displace him and appoint another master. The case is also within the provisions of section 4250 of the Revised Statutes, which provides that "any person or body corporate having more than one-half ownership of any vessel, shall have the same right to remove a master, who is also part-owner of such vessel, as such majority owners have to remove a master not an owner. This section shall not apply where there is a valid written agreement subsisting, by virtue of which such master would be entitled to possession, nor in any case where a master has possession as part-owner obtained before the 19th day of April, 1872." The alleged contract with the libellant was not in writing, and, therefore, if proved, would not avail him. There was then no legal claim on the part of the libellant, nor any reasonable pretence of such legal claim, that he held his position of master except subject to the will of the majority of the owners. the 23rd day of August, he was informed by the agent of the majority of the owners, that Merry had been appointed master in his place. He well knew how the title was held. Up to a short time before that day, half the vessel had been owned in Damariscotta, and half in Portland, Maine. He had been informed that one of the owners known as a Portland owner, had sold out to one of the Damariscotta owners, and that this interest united with the half-interest already held by the Damariscotta owners, to change the master. He

On

The Barkentine Lizzie Merry.

does not appear to have objected then that the majority had not joined in this proceeding, but he took the ground that under his master's interest he was entitled to hold the command. I am satisfied with the proof as to the majority having joined in the appointment of the new master. Whatever question might be made as to the execution of the first power of attorney, upon which the name of John F. Stinson appears, a second power was shown to have been given, acknowledged before a notary, and put in the hands of the agent of the owners before he communicated their action to the libellant. After the libellant was informed that a new master had been appointed, and while he was absent from the vessel, the new master came to the vessel and took possession. The evidence does not show that any force was used, or threatened on his part, to obtain possession. If there was anybody on board holding or claiming to hold any authority from the libellant to resist the new master, or to prevent his taking possession peaceably, that person has not been called; nor is there any evidence, whatever, of anything that took place between him and the new master when the latter came on board and assumed command. There is no proof, therefore, of any forcible dispossession. Afterwards, the libellant came and found the new master in possession, and some hard language was used, the libellant insisting on his right, and the new master insisting on his, and threatening an arrest if disturbed; but the possession of the ship was already changed, and this affair is wholly immaterial.

The libel is dismissed with costs.

For libellant, Beebe, Wilcox & Hobbs.

For claimants, R. D. Benedict and H. T. Wing.

The United States v. The New York, New Haven and Hartford R. R. Co.

OCTOBER, 1878.

THE UNITED STATES VS. THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY.

JURISDICTION.-INTERNAL REVENUE.

Under U. S. Rev. Stat., § 733, which is a re-enactment of the 41st section of the Act of June 30, 1864 (13 Stat. at large, p 239), as amended by the 9th section of the Act of July 13, 1866 (14 id. p. 111), and which provides that "taxes accruing under any law providing internal revenue may be sued for and recovered, either in the district where the liability for such tax occurs or in the district where the delinquent resides," a suit will not lie to recover such tax in a district other than that in which the tax accrues or that in which the delinquent resides, although he may be found and served with process therein.

CHOATE, J. This is a suit brought to recover a tax alleged to have accrued against the defendant, a railroad corporation, in the year 1864, under the act of June 30, 1864. (13 Stat. at Large, p. 275.) The defendant pleads to the jurisdiction that the tax, if any is due, accrued in the District of Connecticut, and that the defendant is not a New York corporation, but incorporated under the laws of Connecticut, and not a resident of this district. To this plea the plaintiff demurs.

The question raised is whether a suit for this tax can be brought in a district, other than that where the defendant resides or where the tax accrues, or whether it can also be brought in the district where the defendant shall be personally served. It is conceded by the learned counsel for the defendant that under the judiciary act of 1789, ch. 20, § 11 (Rev. St. § 739), which prohibits the bringing of a civil suit against an inhabitant of the United States "in any other dis

The United States v. The New York, New Haven and Hartford R. R. Co.

trict than that of which he is an inhabitant, or in which he is found at the time of serving the writ," a corporation may be sued out of its domicile, if found in another district; and the defendant does not contend that this defendant was not "found" within this district within the meaning of that section. The claim of the defendant is that by Rev. Stat. § 733 the plaintiff is restricted to the district where the tax accrues and the district where the defendant resides for the purpose of this action. That section is as follows: "Taxes accruing under any law providing internal revenue, may be sued for and recovered either in the district where the liability for such tax occurs, or in the district where the delinquent resides." In the absence of any statute regulation as to the courts where such a suit is to be brought, no doubt the United States could sue in any district where the defendant could be found. And it is argued on behalf of the plaintiff that the language of section 733 is permissive, merely, and not restrictive, the words being "may be sued for," etc., and that the section adds another district in which the suit may be brought, namely, that in which the tax accrues, to those in which under the general terms of section 739 it could otherwise alone be brought, namely, those in which the defendant resides or can be found. Section 733 is a re-enactment of part of the 41st section of the Act of June 30, 1864 (13 Stat. at Large p. 239), as amended by the 9th section of the Act of July 13, 1866 (14) Stat. at Large p. 111).

The Act of 1864 ch. 173, § 41, provided as follows: "That it shall be the duty of the collectors aforesaid or their deputies, in their respective districts, and they are hereby authorized, to collect all the duties and taxes imposed by this Act, however the same may be designated, and to prosecute for the recovery of any sum or sums which may be forfeited by virtue of this Act, and all fines, penalties and forfeitures which

The United States v. The New York, New Haven and Hartford R. R. Co.

may be incurred or imposed by virtue of this Act, shall be sued for and recovered in the name of the United States in any proper form of action, or by any appropriate form of proceeding, qui tam, or otherwise, before any Circuit or District Court of the United States, for the district within which said fine, penalty or forfeiture may have been incurred, or before any other court of competent jurisdiction." It will be observed that under this statute no special provision was made as to the district in which suits for taxes should be brought; such suits were therefore liable to be brought and could be only brought in the district where the defendant resided or in the district where he was found, while suits for fines might be brought in the district where the fine was incurred, and also "in any other court of competent jurisdiction," which included certainly a Circuit or District Court of the United States for the district where the offender might be found. Section 41 of the Act of 1864 was amended by the Act of 1866 so as to read as follows: (p. 111) "That it shall be the duty of the collectors aforesaid, or their deputies, in their respective districts, and they are hereby authorized to collect all the taxes imposed by law, however the same may be designated, and to prosecute for the recovery of any sum or sums which may be forfeited by law; and all fines, penalties and forfeitures which may be incurred or imposed by law shall be sued for and recovered in the name of the United States in any proper form of action or by any appropriate form of proceeding, qui tam or otherwise, before any Circuit or District Court of the United States for the district within which said fine, penalty or forfeiture may have been incurred, or before any other court of competent jurisdiction. And taxes may be sued for and recovered in the name of the United States in any proper form of action before any Circuit or District Court of the United States for the district within which the liability to