whole or in part, or unless it is proved to the satisfaction of the court that the defendant is, at the time of trial, in possession of vouchers not before in his power to procure, and that he was prevented from exhibiting to the said auditor a claim for such credit by some unavoidable accident.

R. S. § 952, U. S. Comp. Stat. 1901, p. 695.

The above section was originally enacted in 1836.9 Unless the conditions have been complied with or the case is within the exceptions, the credits cannot be pleaded by way of set off.10

§ 1409.-judgment-right to continuance.

In suits arising under the postal laws the court shall proceed to trial, and render judgment at the return term; but whenever service of process is not made at least twenty days before the return day of such term, the defendant is entitled to one continuance, if, on his statement, the court deems it expedient; and if he makes affidavit that he has a claim against the Postoffice Department, which has been submitted to and disallowed by the sixth auditor, specifying such claim in his affidavit, and that he could not be prepared for trial at such term for want of evidence, the court, if satisfied thereof, may grant a continuance until the next term.

R. S. § 958, U. S. Comp. Stat. 1901, p. 698.

The above section was carried forward into the Revised Statutes from an act of 1836.11

§ 1410.

interest on balances due Postoffice Department.

In all suits for balances due to the Postoffice Department, interest thereon shall be recovered, from the time of the default, at the rate of six per centum a year.

R. S. § 964, U. S. Comp. Stat. 1901, p. 700.

The above section was originally enacted in 1836.12

§ 1411. When defendant sued by United States may claim credits. In suits brought by the United States against individuals, no claim for a credit shall be admitted, upon trial, except such as

9 Act July 2, 1836, c. 270, § 15. 5 Stat. 82.

10 Ware v. United States, 4 Wall. 617, 18 L. ed. 389; United States v. Davis, Deady, 294, Fed. Cas. No. 14,927.

11 Act July 2, 1836, c. 270, § 15, 5 Stat. 82.

12 Act July 2, 1836, c. 270, § 15, 5 Stat. 82.

appear to have been presented to the accounting officers of the Treasury, for their examination, and to have been by them disallowed, in whole or in part, unless it is proved to the satisfaction of the court that the defendant is, at the time of the trial, in possession of vouchers not before in his power to procure, and that he was prevented from exhibiting a claim for such credit at the Treasury by absence from the United States or by some unavoidable accident. R. S. § 951, U. S. Comp. Stat. 1901, p. 695.

The above section was originally enacted in 1797.14 It embraces every suit between the United States and an individual.15 No State law can affect the question of set-off in such an action.16 Where the set-off is in excess of the claim, judgment cannot be rendered against the United States for the excess.17 When the claim has been presented to the proper officers and has been disallowed it may be given in evidence and allowed as a set-off; 18 even though not presented and disallowed until after commencement of the suit.19 Where a claim has not been presented and disallowed no evidence can be given concerning it,20 unless the defendant has vouchers which he could not procure before.1 Proof of a claim is not ad

14 Act March 3, 1797, c. 20, § 3, 74 Fed. 145; United States v. Smith, 1 Stat. 514. 1 Bond, 68, Fed. Cas. No. 16,321; United States v. Corwin, 1 Bond. 149, Fed. Cas. No. 14,870.

15 United States v. Ingersoll, Crabbe, 135, Fed. Cas. No. 15,440; United States v. Barker, 1 Paine, 156, Fed. Cas. No. 14,517.

16 United States v. Robeson, 9 Pet. 319, 9 L. ed. 142; Reeside v. Walker, 11 How. 272, 13 L. ed. 693; United States v. Eckford, 6 Wall. 484, 18 L. ed. 920; Watkins v. United States, 9 Wall. 759, 19 L. ed. 822. See also, United States v. Prentice, 6 McLean, 67, Fed. Cas. No. 16,083.

17 Reeside v. Walker, 11 How. 280, 13 L. ed. 693; United States v. Eckford, 6 Wall. 484, 18 L. ed. 920; Case v. Terrell, 11 Wall. 201, 20 L. ed. 134; Schaumburg v. United States, 103 U. S. 667, 26 L. ed. 599; Carlisle v. Cooper, 64 Fed. 474, 12 C. C. A. 235; Bowker v. United States, 105 Fed. 398.

19 United States v. Hawkins, 10 Pet. 125, 9 L. ed. 369; United States v. Collier, 3 Blatchf. 325, Fed. Cas. No. 14,833.

20 Railroad Co. v. United States, 101 U. S. 543, 25 L. ed. 1068; Kings County Savings Inst. v. Blair, 116 U. S. 206, 29 L. ed. 659, 6 Sup. Ct. Rep. 353; Watkins v. United States, 9 Wall. 759, 19 L. ed. 822; United States v. Austin, 2 Cliff. 325, Fed. Cas. No. 14,480; United States v. Ingersoll, Crabbe, 135, Fed. Cas. No. 15,440; United States v. Smith, 1 Bond, 68, Fed. Cas. No. 16,321; United States v. Duval, Gilp. 356, Fed. Cas. No. 15,015; United States v. Barker, 1 Paine, 156, Fed. Cas. No. 14,517.

18 United States v. Kimball, 101 U. 1 Halliburton v. United States, 13 S. 726, 25 L. ed. 835: United States Wall. 63, 20 L. ed. 533; United States v. Giles, 9 Cranch, 212, 3 L. ed. 708; v. Giles, 9 Cranc., 212, 3 L. ed. 708; United States v. Ringgold, 8 Pet. 150, United States v. Patterson, 91 Fed. 8 L. ed. 899; United States v. Mc- 856; Yates v. United States, 90 Fed. Daniel, 7 Pet. 1, 8 L. ed. 587; United 59, 32 C. C. A. 507; United States States v. North American, etc. Co. v. Wade, 75 Fed. 261.

missible until a proper foundation is laid by proof of its rejection.2 No particular form of allowance or disallowance is required.3

§ 1412. Suits by United States against corporations-corporation's debtors summoned as garnishees.

In any suit by the United States against a corporation for the recovery of money upon a bill, note, or other security, the debtors of the corporation may be summoned as garnishees; and it shall be the duty of any person so summoned to appear in open court and to depose, in writing, to the amount which he was indebted to the said corporation at the time of the service of the summons and at the time of making such deposition; and judgment may be entered in favor of the United States for the sum admitted by such garnishee to be due to the said corporation, in the same manner as if it had been due to the United States; provided, that no judgment shall be entered against any garnishee until after judgment has been rendered against the corporation defendant to the said action, or until the sum in which the garnishee stands indebted is actually due. R. S. § 935, U. S. Comp. Stat. 1901, p. 689.

The above section was carried forward into the Revised Statutes from an act of 1818.5

§ 1413.-issue tendered when garnishee denies indebtedness. When any person summoned as garnishee [i. e. in a suit by United States against a corporation] deposes in open court that he is not, and was not at the time of the service of the summons, indebted to such corporation, an issue may be tendered by the United States upon such demand, and if, upon the trial of that issue, a verdict is rendered against the garnishee, judgment shall be entered in favor of the United States, pursuant to such verdict, with costs of suit. R. S. § 936, U. S. Comp. Stat. 1901, p. 690.

The above section was originally enacted in 1818.6

§ 1414. garnishee failing to appear.

If any person summoned as garnishee, as aforesaid, fails to ap

2United States v. Gilmore, 7 Wall. 491, 19 L. ed. 282.

3 United States v. Duval, Gilp. 356, Fed. Cas. No. 15,015.

5 Act April 20, 1818, c. 83, § 8, 3 Stat. 443.

6 Act April 20, 1818, c. 83, § 9, 3 Stat. 443.

pear at the term of the court to which he is summoned, he shall be subject to attachment for contempt of the court.

R. S. § 937, U. S. Comp. Stat. 1901, p. 690.

The above section was originally enacted in 1818.7

§ 1415. Liability of United States to costs in revenue suits. When a suit for the recovery of any penalty or forfeiture accruing under any law providing internal revenue is brought upon information received from any person other than a collector, deputy collector, or inspector of internal revenue, the United States shall not be subject to any costs of suit.

R. S. § 969, U. S. Comp. Stat. 1901, p. 702.

The above section was originally enacted in 1866.8 The existing law as to costs generally is contained in a subsequent chapter.9

§ 1416. Payment of costs by defendant prosecuted for fine or forfeiture.

When judgment is rendered against the defendant in a prosecution for any fine or forfeiture incurred under a statute of the United States, he shall be subject to the payment of costs; and on every conviction for any other offense not capital, the court may, in its discretion, award that the defendant shall pay the costs of the prosecution.

R. S. § 974, U. S. Comp. Stat. 1901, p. 703.

This provision was taken from an act of 1792.11

§ 1417. Execution in favor of United States to run in every State. All writs of execution upon judgments obtained for the use of the United States, in any court thereof, in one State, may run and be executed in any other State, or in any Territory, but shall be issued from, and made returnable to, the court wherein the judgment was obtained.

R. S. § 986, U. S. Comp. Stat. 1901, p. 707.

The above section was carried forward into the Revised Statutes from

7Act April 20, 1818, c. 83, § 10, 3 Stat. 444.

9 Post, § 1823 et seq.

11 Act May 8, 1792, c. 36, 1 Stat.

8 Act July 30, 1866, c. 184, § 9, 277. 14 Stat. 111.

1235

an act of 1797.13 Execution in favor of the United States may be served in any part of the United States.14

§ 1418. Remission of fines, penalties and forfeitures.

The Secretary of the Treasury is authorized to prescribe such rules and modes of proceeding to ascertain the facts upon which an application for remission of a fine, penalty, or forfeiture is founded, as he deems proper, and, upon ascertaining them, to remit the fine, penalty, or forfeiture, if in his opinion it was incurred without willful negligence or fraud, in either of the following cases: First. If the fine, penalty, or forfeiture was imposed under authority of any revenue law, and the amount does not exceed one thousand dollars. Second. Where the case occurred within either of the collection districts in the States of California or Oregon. Third. If the fine, penalty, or forfeiture was imposed under authority of any provisions of law relating to the importation of merchandise from foreign. contiguous territory, or relating to manifests for vessels enrolled or licensed to carry on the coasting trade on the northern, northeastern, and northwestern frontiers. Fourth. Repealed. Fifth. If the fine, penalty, or forfeiture was imposed by authority of any provisions of law for levying or collecting any duties or taxes, or relating to registering, recording, enrolling, or licensing vessels, and the case arose within the collection district of Alaska, or was imposed by virtue of any provisions of law relating to fur seals upon the islands of Saint Paul and Saint George.

R. S. § 5293, U. S. Comp. Stat. 1901, p. 3605.

1419. Continuances in internal revenue suits.

It shall be lawful for any court in which any suit. . 16 arising under the internal revenue laws may be pending, to continue the same at any stage thereof, for good cause shown on motion by the district attorney.

R. S. § 3231, U. S. Comp. Stat. 1901, p. 2090.

Dismissal or nol. pros. in prosecutions for illicit distilling is forbidden by another provision.17

13 Act March 3, 1797, c. 20, § 6,

1 Stat. 515.

14Toland v. Sprague, 12 Pet. 328, 9 L. ed. 1093.

16"Or criminal proceeding." See post, § 1596.

17 Ante, § 1390.