Page:Federal Reporter, 1st Series, Volume 7.djvu/201

 UNITED STATES V. MIIiLWfGEB. 18O �views stated in U. S. v. Hodson, 14 Int. Eev. Eec. 100, and in other cases, had held that the assessment of the deficiency tax could not be questioned in a suit on the bond. But Judge Shipman's view was, evidently, that the court had no power to open the judgment for the cause stated, for the purpose of permitting the defence in question to be made. At the same time that the motion in this case was made before him, a mo- tion was also made before him in U. S. v. Teven, in this court, to open a judgment which had been rendered in 1873 and had been paid. The motion was based on alleged error in the exclusion of testimony offered at the trial by the defendant, such testimony constituting his defence. The testimony was excluded on a construction of the statute supposed to be cor- rect. The supreme court had afterwards held, in another case, that such construction was erroneous. In denying the motion, February 2, 18S0, Judge Shipman said : �" The question in regard to vacating the judgment is neither one of practice, nor of procedure, nor of discretion, nor of the power of state courts in similar circumstances, but of the power of the federal courts. I am of opinion that this court has no power, on a summary motion, to vacate a judgment rendered at a previens term, upon the grounds set up in the motion papers. Bank of U. S. v. Sfoss, 6 How. 31 ; MeMicken v. Petin, 18 How. 507; Wood Y.Luse, 4 McL. 254." �The defendant Boyd now presents affidavits in this case seeking to show that in making the survey of the distillery, under section lOof the act of 1868, the assessor took no part, and the person designated to aid the assessor under that sec- tion was arbitrarily required by the commissioner of internai revenue to fix the producing capacity of the distillery at what was stated in the report of survey made, which was larger than such person's own judgment as to such capacity. On this a motion is made to open the judgment and for a new trial by a jury. �I think the court has no power to grant this motion. In addition to the cases cited in U. S. v. Teven, those oiMedford v. Dorsey, 2 Wash. 433; Cameron v. McRoherts, B Wheat. 591; Brmh v. Robbins, 3 McL. 486; and The Bank y, Labitut, 1 Woods, 11, may be referred to. It is held in some other ��� �