H. CLAY PIERCE, Plff. in Err., v. UNITED STATES. NO 64. UNITED STATES v. H. CLAY PIERCE. NO 623.

These two cases involve the liability of the plaintiff in error in No. 64 for a tax on the foreign-built yacht Yacona, which became due on the 1st of September, 1909. The complaint in every substantial particular was identical with that filed in the Billings Case this day decided [232 U. S. 261, 58 L. ed. ——, 34 Sup. Ct. Rep. 421], and this is true also of the defenses set up in the answer, except that the answer in this case contained this distinct averment which was not in the Billings Case: 'That the said yacht Yacona was not in use by the defendant or by any other person at any time during the year next preceding the 1st day of September, 1909, but was out of commission of September, 1909, but was out of commission in the state of New York, throughout the whole of such year.' The case was submitted on bill and answer, and the liability for the tax, which was upheld by the court below, was rested upon the construction as to potential use,—that is, a tax on the privilege of using,—which we decided in the Billings Case to be unsound. In this case, as in that, the certificate is concerned with a writ of error prosecuted by the United States to the circuit court of appeals because of the rejection of a prayer for interest. Treating both the cases in this instance as one, as we did in the previous cases, and applying to this the construction which we have given the statute in those cases, it follows that the judgment below was wrong and must be reversed, with direction to dismiss the complaint.

And it is so ordered.