UNITED STATES v. \Vl!lEDOllf. UNITED STATES V.
623
WEEDON and other:.
(Circuit Gowrt, D. MaryZand. July 27,1880.) 1. INTERNAL REVENUE-STAMPB-FRICTION MATCHES-MEMBER OF MANUFACTURING FIRM-REV. ST. § 3425.-Section 3425 of· the Revis¢ Statutes provides, in that the commissioner of internal revenue may, from time to time, deliver to any manufa.ctllrer of friction matches a suitable quantity of adhesive stamps, such &8 are required in that business by law, without requiring prepayment therefor. on a credit of 60 days, upon such security as he may deem sufficient. Held, that a person who is a melhber of a :firm engaged in the manufacture of friction matches, is a:manufactuteroffriction lIlatches, with whom the as such.
2. SAME-REVENUE AGENT-EvIDENbE.-Evldence in this case held insufficient to establish the fact that the stamps were furnished such person as an internal revenue agent.
624:
FEDERAL REPORTER.
ing in advance such security as he may judge necessary to secure payment therefor to the treasury of the United States within the time prescribed for such payment j "And, whereas, adhesive stamps have been delivered, or hereafter may be delivered, to said James H. Weedon, by "irtue of said authority: "Now, therefore, if the said James H. Weedon shall, on or before the tenth day of each and every month, make a statetllent of his account upon form 55! of the internal revenue bureau, and upon such other form or forms as may hereafter be added thereto.. or upon such other form or forms as may hereafter be submitted therefor, showing the balance due at the- commencement of the month, the amount of stamps receive and the amount of money remitted by him during the month, and the balance due from said James H. Weedon at the close of the month next preceding, and shall do and perform all other acts of him required to be done in the premises, according to law and regulations; shall well and truly payor cause to be paid to the treasurer of the United States, for the use of the United States, all and every such sum or sums of money as he, the said James H. Weedon, may owe to the United States for adhesive or other stamps which have been or shall be delivered to him, or which have been or shall be forwarded to him, according to his request or order, within the time prescribed for payment for the same according to law, and sha,ll and will payor cause to be paid to the said treasurer, for the use aforesaid, each and every sum of money as shall become due or payable to the United States, at the time and on the days each sum shall respectively become due or payable, then the above obligation to be void and of no effect, otherwise to be and remain in full forc& and virtue." The pleas filed were nil debit, and that the loss, if any, was the fault of the plaintiff, and not that of defendants. Errors in pleading were waived. To support the issue on the part of the plaintiff the district attorney offered in evidence the transcript of the account of James H. Weedon with the treasury department, as certified
UNITED STATES tI. WBEDON.
625
by the comptroller of the treasury; and also offered in evidence the written .orders signed by Weedon for the stamps .furnished, and Weedon's receipts for them. Ea.ch of Baid orders is in the words following, or words to the same effect: "Please send $3,000 worth of one-cent stamps of my private die, Mo. Match Co. Respectfully, ·James H.Weedon." .Arid the receipts for the stamps are in the words following, or words.. to like effect, which will not vary the question to be decided here: "Your letter of September 21, 1872, has been received. I am also in receipt of the United States internal revenue stamps therein referred to, amounting to $3,300, in satisfaction of my order under date of September 18, 1872. I am, very respectfully, [signed,] James H. Wheedtln. To Commissioner of Internal Revenue, Washington, D. C." The defendants, to support the issue on their part, offered in evidence an account sent to the defendant Weedon·from the treasury department, charging him with a like amount of stamps, calling him in the account James H. Weedon, match manufacturer; internal revenue stamp agent. It was further shown by defendants that, at the date of the bond, and during all the time he received stamps, Weedon was a member of the firm of Weedon, Armistead & Co., and did no business as a match manufacturer except as a member of the firm, and that the stamps ordered and received by him were used by that firm. It was in proof, also, that at the time of the exe· cution of the bond in suit all the sureties thereto knew that he so carried on the business of match manufacturer as a. member of the firm of Weedon, & Co. These are all the facts necessary to determine the question raised by the instructions of the district court. The defendants prayed the court to instruct the jury as follows: "If the jury believe, from the evidence, that the defendant Weedon, at the time of the execution Of the bond sued upon, and thenceforward, down to the time of the last delivery of stamps given in evidence, was a member of the firm of Wee· don, Armistead & Co., who were manufacturers of matches, and that said Weedon, except aso. member of said firm, and in conjunction with his partner, John 1. Armistead, v.3,no.1l-40
manufacturer of matches, or engaged in manufacturing matches, during any part of that time, and that all the stamps proved to have been furnished to Weedon were purchased by him for the use of said firm only, and used exclusively therefor and not otherwise, and that was known to ihe plaintiff prior to the furnishing of the stamps, which remain unpaid for; that said Weedon was engaged in manufacturing matches as a member of said firm of Weedon, Armistead & Co., and not otherwise,-then the plaintiff is not -entitled to recover in this action against the defendants upon the bond given in evidence." By section 3425 of the Revised Statutes it is provided that the commissioner of internal revenue may, from time to time, deliver to any manufacturer of friction matches a suitable quantity of adhesive stamps, such as are required in that business by law, without requiring prepayment therefor, on a -credit of 60 days, upon such security as he may deem sufficient; And the same section, by which alone the commissioner of internal revenue was authorized to deliver on credit to match manufacturers the proper stamps, allows each manufacturer to provide his own die or impression, which is to be his trademark until he changes it, and which he might lawfully put on articles manufactured by him, or upon articles purchased from others which he thought sufficiently well manufactured as to make him willing to sell them as his own manufacture. The sole question, therefore, under the first prayer of the -defendants, is whether or not a person who is a member of c firm engaged in the manufacture of friction matches, is a manufacturer of friction matches with whom the government may deal as such. There is no requirement of the statute that the stamps sold to a person shall be used by him individually. These stamps were sold upon the order of Weedon, receipted for by him, and used by him in his firm; his partner and himself being engaged in the manufacture of friction matches. If Weedon was not a manufacturer, neither was Armistead,nor the company of which the firm was composed. So it appears that while a large amount of stamps were used for the proper stamping of friction matches, made and sold
UNITED STATES t1. WEEDON.
627
by this firm, there was no one engaged in prod.uction of the matches who could be styled a match manufacturer. To state this proposition, it seems to me, is to refute it. It was unnecessary that all of the members of the firm should apply for stamps; one of the copartnership was sllfficient. He wa.s a manufacturer of matches. assisted by his partners, and the bond given to secure the payment of the amount ordered by him as a manufacturer of matches is responsible for the value of those he obtained by virtue of its security. The court granted the prayer of the defendants upon this point, and, I think, did so erroneously. The defendants asked the court, in the second place, to instruct the jury that the plaintiff could not recover, in this to Weedon as an agent of action, for any stamps the plaintiff, or in the caJ?acity of agent and manufacturer of matches. In the accoUJ,lts offered in evidence by the defendants, furnished Weedon from the treasury department, and in that offered by plaintiffs, he is styled "Match Manufacturer and Internal Revenue Agent." This was the only proof of his being a reyenue agent. All the stamps furnished him were furnished upon his own ordersaB "Match Manufacturer. " It was for these, or the value of them, that the bond was sued.. . . There was no evidence that he had ever been appointed revenue agent. The fact that he was so styled in the accounts offered in evidence, sent him from the treasury by any officer of that department, does npt ,bind the, government. The. proof shows that he received no stamps as revenue agent, sent to him as such, for any purpose, and the court should not have granted the prayer which it did, which was likely to mislead the jury, and which there was no evidence. to. support. The judgment of the district court is reversed, and the caUB,e remanded for a new trial.
".
_. .. _
'c"',',...·.·,
RREGELO·
-ADAMS,
Assignee, etc. - - , 1880.)
(Circuit Oottrt,
n. Indiana.
Appeal from the District Court. Claypool, Newcomb 11; Ketcham, for appellant. John R. Wilson, for appellee. DRUlHMOND, C. J. This IS a controversy between two execution creditors of the bankrupt's estate, and it presents a very singular state of facts and questions, by no means free from difficulty, and I regret, as it is a. question' which . arises, exclusively under the law of Indiana, that there iS'no decision of its Supreme court which throws any light upon the qaes: tion. ,; . ··:1 ' The assignee of the bankrupt came intb possession of son9.lproperty to the estate, which was soJd 'by handk ' , '.,. him, andt-he proceeds' bfwhich are noW At the tihle of the bankruptcy there were executions agahist the bankrupt, issued out the courts of the state, which {tis liens upon thepropetty, andtbe assignee holds the:proceeils subject to the of bile of the .I Jwili state briefly the facts which give rise to this contro. versy: On the eighteenth of October, 1877, English 'issued an e:reeution on a judgment which 'he had obtaineq against the bankrupt, and placed the execution in the of the sheriff of Marion county. This execution, under the law of the state, 'had 180 days to run. On the sixteenth of April, 1878, when the time had expired, the execution was returned by the sheriff for renewal, without any direction from the plaintiff. On the same day-the sixteenth of April-an alias execution was issued, and was placed in tbe hands of the sheriff on the morning of the seventeenth of April, at half-past 9 o'clock. Kregelo, another creditor, who had obtained a judgment against the bankrupt on the twenty-first of February,