1, 1870, and that all these sums should bear interest at the rate of 8 per cent. per annum after maturity till paid. The agreement then further declared as follows:

"It is understood, as above stated, that the parties hereto do not by these presents impair, affect, or novate their existing claims, and that in case of non-payment they will be entitled to enforce the judgments which may be held by them; and furthermore, that the original mortgages and privileges remain in full force and effect, and are not hereby novated, and if need be, for the purpose of avoiding all doubts, the said privileges and mortgages are hereby recognized as operating on the said property in the proportions aforesaid, and to secure the debts stated as aforesaid with the rank above stated."

This agreement was duly recorded in the office of the recorder of mortgages for the parish of La Fourche, on September 12, 1867.

After the making of this agreement, Cummings, without having paid the sums the payment of which was promised, thereby sold the property to a Mrs. Tucker, who conveyed an undivided half interest to one Thomas J. Daunis, and Mrs. Tucker and Daunis then executed a mortgage on the same to John I. Adams & Co., to secure certain notes made by Daunis to said firm, after which Mrs. Tucker conveyed her undivided half of the property to Daunis. Subsequently the Bank of New Orleans, now become the New Orleans National Banking Association, assuming that the agreement entered into by Cummings before Gourdain, the notary, on September 7, 1867, constituted a mortgage by which the balance found thereby to be due it from Cummings was secured, filed the bill in this case to foreclose the same. The bill made the firm of John I. Adams & Co. parties defendant, charging that said firm claimed to have a mortgage on the property covered by the alleged mortgage of the complainant, and that if said firm had any lien upon or interest in said premises it was subsequent to September 12, 1867, the date of the inscription of the complainant's alleged mortgage.

To this bill John I. Adams & Co. filed a plea and answer, in which they set up that they, being holders of certain notes secured by a mortgage on the property described in the bill of complaint, instituted a certain suit upon the same against Thomas J. Daunis, in the district court sitting for the parish of La Fourche, and obtained a writ of seizure and sale against said property, under and by virtue of which the same was seized by the sheriff, and in October, 1875, sold to John I. Adams, who claimed title thereto. They further alleged that the agreement dated September 7, 1867, set forth in the complainant's bill, being the agreement of Cummings with the Bank of New Orleans and other holders of liens upon the plantation sold to him, was not a mortgage, and if it were, it was proscribed, because it had not been reinscribed within 10 years from the date of the original inscription, on September 12, 1867, as required by the law of Louisiana.

Upon final hearing upon the pleadings and evidence, the circuit

court dismissed the bill, and from its decree the complainant appealed.

J. D. Rouse, Wm. Grant, and Thos. L. Bayne, for appellant.
Jos. P. Hornor and W. S. Benedict, for appellees.

WOODS, J. It is conceded by counsel for complainant that the original mortgage made by Tucker Brothers, dated February 24, 1860, and the decree rendered thereon in favor of the Bank of New Orleans by the district court of the parish of La Fourche, in June, 1867, were both extinguished by the sale of the mortgaged premises to Cummings on September 7, 1867. But complainant insists that the agreement made by Cummings on the day last named, with the Bank of New Orleans and other parties entitled to the proceeds of the sale, constituted a mortgage, and that the same having, on September 12, 1867, been recorded in the office of the recorder of mortgages for the parish in which the lands were situate, secured them a lien and privilege on the premises from the date of said record. We are of opinion that this contention is not well founded. While it may be conceded that no precise form of words is necessary to constitute a mortgage, yet there must be a present purpose of the mortgagor to pledge his land for the payment of a sum of money, or the performance of some other act, or it cannot be construed to be a mortgage. Wilcox v. Morris, 1 Murph. 116; S. C. 3 Amer. Dec. 678.

The agreement of September 7, 1867, does not, on its face or by its terms, profess to create a lien in favor of the Bank of New Orleans on the premises in question, but it recites that the parties thereto do not thereby impair, affect, or novate their existing claims; that the original mortgages and privileges remain in full force and are recog nized as operating on said property "to secure the debts stated as aforesaid with the rank above stated." The agreement is not of doubtful meaning. Its purpose is to recognize the old mortgage made by Tucker Brothers in 1860, and to preserve its lien on the mortgaged premises from the date of its inscription. The contention of complainant is not that the agreement is a mortgage to secure the notes. made by Tucker Brothers, but to secure from Cummings the price which he bid for the premises at the sale made to satisfy the mortgage executed by Tucker Brothers. The bill of complainant is framed upon this theory; but the fault of this theory is that the agreement does not profess, of its own force, to secure the money due from Cummings, but excludes the idea that such is its purpose by declaring that the original mortgages are recognized as operating on said property to secure the sums due from Cummings. It is perfectly clear, therefore, that the agreement of September 7, 1867, was not intended by the parties as a new mortgage to take effect at that date, but as a recognition of the old mortgage, and that its purpose was to keep it alive and to preserve its lien as of the date of its inscription. In other words, Cummings, by this agreement, undertakes to keep alive and in full force a mortgage made by another party after it had been fore

closed, the mortgaged property sold, and the mortgage and the decree rendered thereon extinguished. It was not in his power to do this. It follows that the effect of the agreement of Cummings of September 7, 1867, is simply as a contract to pay the parties entitled to it the purchase money of the premises bought by him, and creates no lien or privilege on the premises sold. In other words, it is not a mortgage. This view is supported by the decision of the supreme court of Louisiana in the case of Adams v. Daunis, 29 La. Ann. 315. This was the proceeding by Adams to cause to be erased the mortgages anterior to his purchase of the premises' in question. The agreement of Cummings of September 7, 1867, was put in evidence in that case, and this court held it to be no mortgage.

It results from this view that the decree of the circuit court dismissing the bill of complaint was right, and must be affirmed.

(109 U. S. 185)

RETZER v. WOOD, Collector, etc.

(November 12, 1883.)

EXPRESS BUSINESS-ACT OF JUNE 30, 1864, c. 173, § 104-STATUTE OF LIMITATIONS -PLEADING-ACTION TO RECOVER ILLEGAL INTERNAL REVENUE TAXES.

The idea of regularity, as to route or time, or both, is involved in the words "express business," under section 104 of the act of June 30, 1864, c. 173, (13 St. at Large, 276,) and those words do not cover what is done by a person who carries goods solely on call and at special request, and does not run regular trips or over regular routes.

In the absence of a statutory rule to the contrary, the defense of a statute of limlitations, which is not raised either in pleading or on the trial, or before judg ment, cannot be availed of.

In a suit to recover back internal revenue taxes, tried by the circuit court without a jury, the court having found the facts, and held that the taxes were illegally exacted, but that the suit was barred by a statute of limitation, rendered a judgment for the defendant. On a writ of error by the plaintiff, the record not showing that the question as to the statute of limitations was raised by the pleadings, or on the trial, or before judgment, and the conclusion of law as to the illegality of the taxes being upheld, this court reversed the judgment and directed a judgment for the plaintiff to be entered below.

In Error to the Circuit Court of the United States for the Southern District of New York.

Wm. Stanley and Edwin B. Smith, for plaintiff in error.
Sol. Gen. Phillips, for defendant in error.

BLATCHFORD, J. This suit was commenced in a court of the state of New York, and was removed by the defendant into the circuit court of the United States for the southern district of New York by a writ of certiorari. The defendant was a collector of internal revenue, and exacted and collected from the plaintiff, at various times in the years 1866, 1867, and 1868, sums of money amounting in all to $61.30, as

a tax of 3 per centum on the gross amounts of the plaintiff's receipts from his business, under the provisions of section 104 of the act of June 30, 1864, c. 173, (13 St. at Large, 276,) which enacted, "that any person, firm, company, or corporation carrying on or doing an express business, shall be subject to and pay a duty of 3 per centum on the gross amount of all the receipts of such express business." The suit was commenced June 2, 1874. The plea was the general issue. The statute of limitations was not pleaded. A jury having been waived by a written stipulation of the parties, the action was tried before the court without a jury. The court found the fact of the dates and amounts of the exactions, and these further facts: The plaintiff's business was the carrying of goods between New York and Brooklyn, and from one place in the city of Brooklyn to another place in the same city. He did not run regular trips, nor over regular routes or ferries, but where ordered. He had a place in Brooklyn where he received orders on a slate from persons who wished articles sent from there to New York, and from one place in Brooklyn to another place in Brooklyn. The goods were carried in wagons. They were of a miscellaneous character, such as boxes of dry goods, barrels of sugar, rolls of sole leather, trunks, and general merchandise. His business was done solely upon call, and at special request, and, as requested, he sent to any place in either of said cities and took baggage or freight to any place in either of said cities. On the twenty-eighth of May, 1873, he presented to the commissioner of internal revenue a claim, supported by his own oath, for the refunding to him of the moneys so exacted as taxes. No decision was ever made on the claim. The court found, as conclusions of law, (1) that the tax was illegally exacted; (2) that the action was barred by section 44 of the act of June 6, 1872, c. 315, (17 St. at Large, 257.) A judgment was rendered for the defendant. To reverse that judgment the plaintiff brought this writ of error.

There is in the record a bill of exceptions which shows that, after the plaintiff had given evidence to establish the facts so found, the defendant offering no testimony, the plaintiff requested the court to render judgment for the plaintiff, but the court refused, and the plaintiff excepted, and the court directed a judgment for the defendant, and the plaintiff excepted.

We are of opinion that the plaintiff was not liable to this tax, because he did not carry on or do an "express business," within the meaning of the statute. Although he carried goods between New York and Brooklyn, and from one place to another in either city, he did so solely on call and at special request. He did not run regular trips or over regular routes or ferries. He was no more than a drayman or truckman, doing a job when ordered. The fact that he had a place in Brooklyn where orders could be left on a slate made no difference. The words "express business," in the statute, must have the meaning given them in the common acceptation. An "express

business" involves the idea of regularity, as to route or time, or both. Such is the definition in the lexicons. Whether, if the plaintiff had held out to the world, at any place of business, that he was carrying on an "express," or was doing an "express business," or had so designated himself by inscription on his vehicle or vehicles, that would have made any difference, it is not necessary to inquire, because no such thing was shown.

As to the defense of the statute of limitations, it was not pleaded, nor brought to the attention of the court, as a defense, at the trial. It was not within the issue raised by the plea of the general issue, which was the only issue to which the stipulation for a trial by the court extended. It is well settled that, in the absence of a contrary rule established by statute, a defendant who desires to avail himself of a statute of limitation as a defense must raise the question either in the pleading, or on the trial, or before judgment. Storm v. U. S. 94 U. S. 76, 81; Upton v. McLaughlin, 105 U. S. 640. Such was always the law in New York, and no contrary rule was in force in New York, by statute, at any time after this suit was brought. When the testimony at the trial closed, and the plaintiff asked for a judgment in his favor, he was entitled to it. It is proper that the circuit court should be directed to enter such a judgment. The conclusion of law, by the circuit court, that the tax was illegally exacted being a correct conclusion, and its conclusion that the suit was barred by limitation being an incorrect conclusion, it follows that the plaintiff was entitled to judgment on the facts found. The special findings of fact were equivalent to a special verdict, and the question thereon was whether they required a judgment for the plaintiff or the defendant. This was a matter of law, the ruling on which can be reviewed by this court. Norris v. Jackson, 9 Wall. 125.

The defendant in error asks that, if the judgment be reversed, the case be remanded, so that the statute of limitations may be pleaded. Without passing on a question as to whether the statute invoked would furnish a defense in this case, we are of opinion that no ground exists for the course suggested. The record shows that the defendant's attorney had notice, by the declaration, that the plaintiff's claim accrued before a date more than eight years prior to the filing of the plea. Under such circumstances it would not be a fair exercise of discretion not to hold the defendant to his legal status.

The judgment is reversed, and the case is remanded to the circuit court, with directions to enter a judgment for the plaintiff for $61.30, with interest according to the law of the state of New York.