Page:Federal Reporter, 1st Series, Volume 7.djvu/200

 188 FBDEBAIa BEFORTEB. �Edward B. Hill, Asst. Dist. Att'y, for plaintiff. �Roger M. Sherman, for defendant Boyd. �Blatohfobd, g. J. In this case a judgment was entered in this court, on the twelfth of October, 1872, agaiust the defendant, for $8,288.62. The judgment was on a verdict of a ]ury taken on a failure of the defendant to appear at the trial. The action was on a distiller's bond, on which the defendant Boyd was surety, and was founded on an assess- ment of a deficiency tax to make up the amount of spirits required as 80 per cent, of the producing capacity of the distillery as fixed by the survey, the survey being made under section 10 and the assessment under section 20 of the act of July 20, 1808. 15 St. at Large, 129, 133. In Feb- ruary, 1880, the defendant Boyd presented to this court affi- davits seeking to show that the extent of the actual capacity of the distillery, with thB- materials and implements used, did not exceed the quantity of spirits returned as produced ; and that, after the assessment for deficiency was made, and before this suit was brought, moneys were collected under a distraint made under the assessment, which were not credited in entering the judgment. On these affidavits a motion was made to open the judgment, and for another trial by a jury. The court, Shipman, J., (17 Blatchf. 451,) said that the only tenable reason for opening the judgment was the omission of the credits; that the court had power to correct such a mis- take on the authority of Crooks v. Maxwell, 6 Blatchf. 468; and that the judgment ought to be opened only for the pur- pose of allowing evidence to be given of payments made by the defendant Millinger out of his property, which ought to have been allowed and deducted from the face of the assess- ment of damages before entering the judgment, but not for the purpose of giving evidence of other defences to the claim of the plaintiff. It was urged to the court that, under the ruling of the supreme court in CUnkenbeard v. U. S. 21 Wall. 65, decided at the October term, 1874, the evidence as to the actual capacity of the distillery would have been competent if it had been offered at the trial of this suit, and that it was not offered because a course of decisions based on the ��� �