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power, either with or without treaties. See Holmes v. Jennison, 14 Pet. 540, and The People ex rel. Francis Barlow v Curtis, 50 N. Y. 321.

"I am of opinion that, without a treaty stipulation, | Constitution of the United States, possess no such this government is not under any obligation to surrender a fugitive from justice to another government for trial, and that, as a judicial officer of the United States, I have no authority whatever, either to arrest or detain, with a view to such surrender." The United States had no extradition treaty with Portugal; and hence the prisoner, who was a Portuguese subject, was at once discharged. This case occurred in 1835.

In The Matter of the British Prisoners, 1 Woodb. & Minot, 66, which, in 1845, came before the United States Circuit Court for the first circuit, Judge Woodbury, after stating the facts of the case, proceeded to say: "It was then a proper case, and one expressly enumerated under the stipulations of the treaty of 1842 for the surrender of a supposed offender. But without such a stipulation, however fit it might seem in comity or morals to surrender citizens of other countries to answer for offenses committed at home against their own laws, it is usually considered that there is no political obligation under the laws of nations to do it."

In Adriance v. Lagrave, 59 N. Y. 110, Chief Justice Church, in stating the opinion of the Court of Appeals, said: "It was formerly very much questioned among jurists whether the surrender of fugitives from justice, by one government to another, was a duty or obligation imposed by the law of nations or depended upon courtesy or comity, which might, or not, be exercised at the pleasure of each government without cause of complaint. In this country, and in England at least, it has been substantially settled that no such duty exists; and in practice it is believed that in nearly all countries neither demand nor surrender is now made, except in obedience to treaty stipulations." So, also, in The Matter of Metzger, 5 How. 176, the Supreme Court of the United States said: "The surrender of fugitives from justice is a matter of conventional arrangement between States, as no such obligation is imposed by the law of nations."

The delivery of Arguelles, being wholly without any legal authority, was not at all excusable by the fact that the alleged fugitive was supposed to be guilty of a heinous offense. This supposition, if true, does not change the principle or the nature of the act. Rules of law do not vary with the merits or demerits of the particular case to which they are applied. Lynching men for murder, not being the method prescribed by law for killing murderers, is itself an act of murder. So the forcible seizure of a person and the delivery of him to the agent or agents of another government, to be removed from the jurisdiction and protection of the laws of this country, and to be tried for a crime or crimes committed elsewhere, unless authorized and provided for by a treaty, can have no other legal character than that of kidnapping. The action of the executive branch of the government, in the case of Arguelles, was an enormous usurpation of power and, as a precedent, is one of the very worst in our whole history. It ought to have called forth the most unqualified censure on the part of Congress.

The theory that any person, peacefully coming within the jurisdiction of our laws, and committing no offense against them, may, in the absence of any treaty or law of Congress authorizing his extradition on the charge of crime made by a foreign government, be denied the right of unmolested asylum at the discretion of the President of the United States, assigns to his office the prerogatives of an absolute despot. Such was the theory put in practice with reference to Arguelles. We have selected this case, not on account of the man himself, but on account of the principle involved in it, and especially for the purpose of considering the question whether the General Government, independently of treaties, is clothed with the power of international extradition, and also whether such extradition on the simple basis of the law of nations has any legal standing among the American people. The preponderance of authority is overwhelmingly against

the idea.

The preponderance of authority derived from practice, the legislation of Congress, the opinions of the attorney-generals of the United States and the deliverances of the judiciary, both State and Federal, clearly shows that no department of the general government is either bound or authorized to deliver up fugitive criminals from other countries, except in those cases for which provision THE is made by treaty. The powers of the Government are bestowed by the Constitution; and, except as it may be clothed with the extradition power through treaties, no such power is found among the express or implied grants to Congress, or among those to the executive department, or among the powers given to the Federal judiciary. There can be no discretion in the exercise of the power, since it does not exist at all. The State governments, under the

SIR JAMES STEPHEN ON CRIMINAL LAW. LONDON, Dec. 6, 1877. HE December number of the Nineteenth Century contains an interesting paper by Sir James F. Stephen, entitled "Suggestions as to the Reform of the Criminal Law." After premising that (in his belief) codification lies at the root of all real reform on the subject, the writer divides his paper into three heads, viz.:

1. The arrangements for holding assizes and quarter sessions.

2. The management of trials, and particularly the question as to the interrogation of accused persons. 3. The question of appeals in criminal cases.

The first of these has little interest for your readers, but I may mention that the writer holds in favor of a large extension of the jurisdiction of the lower courts

the quarter sessions. He suggests, in fact, that they should try nearly all common offenses, treason, murder, rape and libel being the only crimes he excepts by name, but that they should not be allowed to pass sentences of more than ten years' penal servitude. He also strongly deprecates the frequent resort to the assistance of the bar in supplementing the labors of the judges at assizes, preferring rather the appointment of additional judges, and on this head illustrates with an anecdote: "While a prisoner was being tried before a commissioner, the solicitor for the defense asked his counsel to raise some frivolous objection. The counsel refused on the ground that the commissioner would overrule it. The solicitor replied, 'Oh! he is all right; I have just given his clerk a brief.'"

What will be of greater interest in New York is Sir James's opinion regarding the policy of admitting the evidence of accused persons, as opposed to the existing state of the law; and on this head I propose to quote him pretty freely. After reciting the law as it stands, he says:

"The objections to this state of the law are so obvious and so strong that it is hardly necessary to state them. If the object of a criminal trial is to ascertain the truth, why debar yourself by elaborate precautions from access to what, in the nature of things, must be of all sources of information the best informed? If the object of a criminal trial is not to ascertain the truth, what is its object? The answer to this, as to all such questions, is, that the question, What ought to exist? can hardly be answered satisfactorily till we have answered the previous question - How did the existing state of things come into being? When this question is answered, it becomes comparatively easy to deal with the other.

"Condensed to the highest degree, the history of English criminal trials is somewhat as follows: In the very earliest period of our history the minute and careful scrutiny of facts to which we are now accustomed was practically unknown. Before and for some time after the Conquest our ancestors relied upon compurgations and ordeals. The accused was to bring so many people to swear to his innocence. If he could not, or if he was accused more than once, or if his compurgators were suspected of perjury, he 'ceased to be oath-worthy, and became ordeal-worthy.' He had to be thrown into a pool of water. If he sank he was innocent (but I have some doubt whether he was not left to drown). If he floated he was hung, or at one tinie blinded and otherwise mutilated. By degrees these barbarous expedients were supplanted by the inquest, which was qualified to some extent by the trial by battle. The essence of the inquest was, that questions of guilt and innocence were decided on the sworn reports of what might be called ex officio witnesses. The verdicts of juries proceeded upon their personal knowledge, whether immediate or derived from hearsay, of the offenses committed in their own neighborhood. Gradually the jury ceased to be in any sense witnesses, and by the middle of the sixteenth century the ordinary form of a criminal trial was, with some few exceptions, very much what it is now. "One of these exceptions, however, bears upon this very point of interrogating the prisoner. The following short extract is worth reading:

**

The judge * *asketh first the party robbed if he knows the prisoner, and biddeth him look upon him. He saith Yea.' The prisoner sometimes saith Nay.' The party pursuant giveth good signs, verbi gratia. I know thee well enough. Thou robbedst me in such a place, thou beatedst me, thou tookest away my horse from me, and my purse. Thou hadst such a coat and such a man in thy company.' The thief will say 'No,' and so they stand a while in altercation.

"The trials thus ran into the shape of altercations between the prosecutor and the accused, and this must of necessity have involved a very effective cross-exam

ination of the prisoner. That it did so in point of fact is proved by the earliest reports preserved to us of trials of importance. Up to the very end of the seventeenth century the practice continued, but in the course of the eighteenth century it appears to have been given up, so far as the trial was concerned.

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It is natural to ask what was the reason of so important a change, made silently and without the intervention of any statute or judicial decision. I believe that the change may be regarded as marking the final triumph of a feeling which played a very conspicuous part in our history- excessive jealousy of the procedure founded upon the version of the Roman law which prevailed all over the Continent, and which, in this country, was associated with arbitrary power in two of its most unpopular forms. ***The English disliked the procedure of the civilians, not only because it was connected with torture, but because it was connected with the ecclesiastical courts and the Star Chamber.

"Such is the history of the present law, told shortly. It shows that our present system was never established by any express or deliberate act of legislation, either parliamentary or judicial; that it cannot even be said to be ancient; that it is probably due to a jealousy of despotic power, the exciting causes of which have now passed away; and lastly that it is maintained after the rule of evidence which was regarded as its main justification has been deliberately altered, on the ground that it was found by experience to be mischievous. These considerations do away with any presumption in favor of the rule which might be supposed to be raised by the fact of its existence, and show that the matter ought to be considered on its merits.

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When the subject is looked at from this point of view, it seems hardly to admit of dispute that prisoners ought to be questioned. The commonest experience shows that in the very nature of things this must be an advantage to an innocent and a disadvantage to a guilty person. An innocent man may often find it very difficult to give an explanation of the various circumstances which make against him, if he is left to find out for himself in what respect they are suspicious, and is obliged to throw his defense into the form of a connected statement. The very fact that he is innocent will often make it diflicult for a person to understand the grounds on which he is supposed to be guilty, and will thus make it far more difficult than it would otherwise be for him to give explanations necessary to establish his innocence.

From this point I fear your space will compel me to confine myself to a mere statement of the opinions expressed, without even an attempt to set out the arguments in their support. Sir James, then, does not agree that prisoners should be rendered competent witnesses in criminal, as parties are in civil cases; his principal objections being that a prisoner could not be punished for committing perjury in his own behalf, and that cross-examination to credit would be revolting in humanity; while, in the absence of such cross-examination, the prisoner would not, in reality, be a witness. He would be exempted from one strong motive for telling the truth, and from one of the most searching tests to which a witness's credit can be subjected. The testimony of the accused, therefore, considered merely as testimony, would be simply valueless. Let, then, the ordinary witness testify as at present, under every sanction which can be devised for the purpose of securing his veracity. Examine the accused not as a witness, but in order, if he is innocent, to give him an opportunity of proving his innocence by explaining matters apparently suspicious; and in order, if he is guilty, to prove his guilt by showing that he is unable to give such explanations when he has every possible reason to do so, and when his attention is pointedly directed to the subject.

"Such being the object for which prisoners ought to be questioned, how ought it to be done? I think it is highly desirable that a first examination should be made before the committing magistrates. Such a step would make it practically almost impossible to devise

fraudulent defenses (false alibis for instance) between the trial and the prisoner's committal. It would also, in many instances, prevent defenses which an unassisted prisoner would never think of raising. In most instances a guilty man's advisers make a far better defense for him than he would make for himself. They stand upon defects in the case for the Crown, instead of admitting the matter charged and attempting to explain it away, as he would in many cases be sure to do. The best advice which can possibly be given to a guilty man is to hold his tongue, or, as they say, 'reserve his defense,' and this is just the reason why the magistrates ought to question him.

At the trial, I think the prisoner should, at the end of the case against him, be invited to say whatever he pleased, even though he might be defended by counsel. I would allow the counsel for the Crown to cross-examine him on his statement or if he kept silence, and I would also allow the judge and jury to interpose at any time any questions they thought fit to ask. I would allow his own counsel to re-examine him. It admits of some doubt whether the whole of the examination ought not to be conducted by the judge and jury, to the exclusion of the counsel on each side. Something, at all events, may be said for adopting this plan, in cases where a prisoner is not defended by counsel; but be this as it may, in one way or another, I think the prisoner ought in every case to be called upon to tell his own story and to be questioned as to its truth, and that not in the character of an ordinary witness, but in order that the best and most natural of all conceivable tests may be applied for discovering whether he is innocent or guilty."

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On the question of appeals in criminal cases - the last subject of the paper - Sir James has not so much to say, but the matter is of especial interest in view of recent agitation regarding the Penge murder case." The defects of the present system are so great that, so far as the writer is aware, no one denies or underrates them. It is enough to say that whenever serious doubt is thrown on the propriety of a given conviction, the secretary of State for the Home Department may be called upon, usually by popular clamor, to overrule the verdict of a jury by his own private opinion, formed on grounds which are never made public, and on evidence given under no sanction, after which he has to advise Her Majesty to grant a free pardon for guilt, on the ground that the guilty man is innocent. The only serious question is: What is the most appropriate remedy? And the writer concludes that, on all grounds, the power to grant new trials would be better than the institution of a system of appeals, properly so called. The principal objection to this proposal is, that it would cause a great increase in the business of the courts, as every one who was convicted would move for a new trial. To this it may be replied that a motion for a new trial would never be made when counsel advised, as they generally would, that there was no possible chance of success. If groundless applications were made, the courts would refuse them in a very summary fashion. The suggestion that the jury might, if they had so pleased, have found a different verdict from the one which they actually did find, would never be regarded as a reason for granting a new trial. If it were thought desirable to take security against possible abuses of the system, the permission of the Attorney-General, or that of the judge who tried the case, to make the motion, might, if necessary, be made a condition precedent to it. If, however, it is true that in any considerable number of cases there are substantial grounds for new trials which, under the present law, cannot even be discussed, it follows that the present law involves a cruel and flagrant denial of justice; and if it is said that the courts have no time to do justice, the answer is, that more judges ought to be appointed.

SPECIFIC PERFORMANCE.

SUPREME COURT OF RHODE ISLAND.*

DOYLE V. HARRIS.

In equity a complainant suing for specific performance must show that he has not been in default. Hence, when a contract for the sale of land provided for the payment of the "balance of the purchase-money at a time certain, and the court, from evidence which was conflicting, found that the time had been extended by agreement to a day certain, and the vendee did not then pay, nor did he claim that he had ever tendered, the price and demanded a deed: the court dismissed the vendee's bill for specific purposes.

Semble, that in this country the tender of a deed by the vendee is unnecessary in order to put the vendor in default, as the deed is to be prepared by the vendor. ILL in equity for specific performance, brought by the complainant, vendee, on the following agreement set out in the bill:

BILL

"Received of Sarah E. H. Doyle, wife of Louis J. Doyle, one hundred dollars on account of the purchase of lot 105, and part of another on the Dean estate. Said lot is 39.72 feet front on Bridgham street, one hundred feet deep, and 55 feet on rear line. Price of same to be seventy-five cents per square foot. Balance of purchase-money to be paid in two months, when a good and satisfactory deed to be given. Interest at 7 pr. ct. from this date.

"PROVIDENCE, October 4, 1871."

'WILLIAM HARRIS.

John C. Pegram & Abraham Payne, for complain

ants.

Vincent & Carpenter, for respondent.

POTTER, J. It is essential to any contract that there should be parties on both sides competent to contract; and the statute of frauds makes no difference in this respect.

The complainant on this point relies on Ives v. Hazard, 4 R. I. 14, 28, as disposing of the question of mutuality. In that case both parties were competent to contract, and the question was whether they had contracted and whether the agreement signed by only one party was sufficient. It is not, therefore, decisive of this case. Flight v. Bolland, 4 Russ. 298.

Upon the point that a feme covert having a separate statutory estate can make contracts to bind that estate (as she could in some cases her equitable separate estate) it is not necessary here to decide.

The case comes before us upon bill, answer and replication, and the depositions of L. J. Doyle, the husband of the complainant, and of the defendant. The answer, therefore, is to be taken as conclusive so far as it is responsive to the bill, unless there is testimony to vary the effect of it.

The bill, after alleging the agreement, proceeds to allege that the complainants have always been ready and willing to pay when the title was shown and a conveyance made free of incumbrances. It alleges no demand for a deed or tender of one, or tender or offer to pay.

The answer, after denying any agreement with Louis J. Doyle, states that the only agreement was with Mrs. Doyle, by an agent, and claims benefit of this as if demurred to. It then goes on to state, that after the time expired, namely, December 4, Mr. Doyle said he could not pay then, and asked delay until December 15, which was verbally granted, but that, although the defendant has always been ready to give a deed, the *From Arnold Green, Esq., State Reporter.

complainants never at any time demanded a deed, or paid, or offered to pay, the remainder of the money.

Louis J. Doyle, in his deposition, says that he called on the defendant on December 4, when the time expired, and asked for further time, and that nothing was said about extending it for any definite period.

The defendant, in his deposition, says that Doyle called on him a few days after December 4th, and further states that the value of the land had materially risen between the middle of December, 1871, and the filing of this bill.

The argument of the complainant proceeds on the ground that he was not bound to offer the money until the other party tendered him a deed.

If the defendant was suing for performance, it would then be important for him to show that he had tendered a sufficient deed.

But here the complainant claims performance as vendee.

By the English practice, in order to put the vendor in default, the vendee must not only tender the money, but must himself prepare and offer a deed to be executed by the vendor. And many of the English cases have turned on the difficulty of making a good title, growing out of their intricate system of real estate law.

While there are conflicting cases in this country we believe the weight of authority to be that the tender of a deed by the vendee is unnecessary, as it is generally prepared by and at the expense of the vendor. See notes to Sugden's Vendors and Purchasers, *263. And in the United States Supreme Court, in Taylor v. Longworth et al., 14 Pet. 172, Judge Story, delivering the opinion of the court, holds that the local practice should prevail; and the general understanding here, we believe, has been that the vendor is to prepare the deed.

At law the vendee suing must show either a strict performance on his part, or a tender and refusal.

And in equity the party suing is not discharged from performance any more than at law, except in cases of accident or mistake on his part, or laches or default on the other side. He must show that he has not been in default himself. Walker v. Jeffreys, 1 Hare, 341, 348, 352; Voorhees v. De Meyer, 2 Barb. S. C. 37. Equity excuses actual performance in some cases where it would have been of no avail, as where a tender would have been refused. Fry on Specific Performance, § 619; Hunter v. Daniel, 4 Hare, 420, 433. So in cases of accident or mistake, or justifiable excuse, where the other party suffers no injury. Longworth v. Taylor, 1 McLean, 395, 400, 402. He must perform or show a readiness to perform, or some default of the other party which excuses him. McNeil v. Magee, 5 Mason, 244, 256; Fry on Specific Performance, § 608; 2 Eq. Ca. Abr. 33; Wood v. Perry, 1 Barb. S. C. 114, 131. And the defendant's negligence cannot excuse the complainant. Fry on Specific Performance, § 608. And if the court finds that there was a sufficient excuse, that delay of payment has not operated injuriously, that the condition of the parties and the value of the property remains unchanged, and the same justice can be done, it will grant relief. Longworth v. Taylor, 1 McLean, 395, 400, 402; Opinion of Story, J., in Taylor v. Longworth et al., 14 Pet. 172; Doleret v. Rothschild, 1 Sim. & Stu. 590; Crofton v. Ormsby, 2 Sch. & Lef. 583, 603; Benedict v. Lynch, 1 Johns. Ch. 370; Scott v. Fields et al., 7 Ohio, 2d part, 90, and cases there cited.

It is a matter for the sound discretion of the court

whether to decree specific performance or leave the parties to their remedy at law. Simmons v. Hill et al., Harr. & McH. 252; Willard v. Tayloe, 8 Wall. 557; Marble Co. v. Ripley, 10 id. 339.

Chancellor Kent, in Benedict v. Lynch, 1 Johns. Ch. 370, 376, thus comments on the mischief likely to arise from the lax indulgence of this discretion: "The notion that seems too much to prevail, that a party may be utterly regardless of his stipulated payments, and that a court of chancery will almost at any time relieve him from the penalty of his gross negligence, is very injurious to public morals."

And it has even been held that the plaintiff must not only tender the money but must follow it up by bringing it into court. Doyle et al. v. Teas et al., 5 111. 202, 265, 267.

Was the time ever extended and if so, how long? We have on this point only the conflicting evidence of the answer and the two depositions; and considering the weight to which the answer is entitled, and that the burden of proof is on the complainant, we cannot hold that there was any extension but for a definite time.

The respondent, in his answer filed in May, 1872, swears that he was willing and ready to execute the deed. For some reason the depositions were not taken until 1875, and the respondent, in his deposition, swears that he was willing to give the deed not only up to the filing of the bill in May, 1872, but up to the time he sold the lot to another person in the autumn of 1874. And the complainant does not offer any evidence, or even claim that he has ever tendered or demanded a deed; or tendered the money or offered to pay it. Bill dismissed, but without costs.

COLLECTION OF TAXES NOT RESTRAINED FOR LEGAL INFORMALITIES.

SUPREME COURT OF MICHIGAN- OCTOBER TERM, 1877.

ALBANY AND BOSTON MINING Co. v. AUDITOR-GENERAL.

The collection of a tax will not be enjoined in equity for mere legal irregularities, such as that the assessment roll was not ready for review on the day prescribed. The property must have been exempt, or the levy without legal power, or the persons imposing it unauthorized, or they must have proceeded fraudulently.

THE

law of Michigan prescribes how the annual assessment roll shall be made up, corrected and certified to, as a preliminary to the collection of taxes. The supervisor of Franklin township, in Houghton county, where the complainant company has property, did not follow the statutory rule in preparing the assessment roll for 1874, but merely made pencil changes upon that for 1873, and after inserting the corrections, made on the days when the roll was open to the public for review, he drew off a copy of it and certified to the correctness of that instead of certifying to the original. The roll upon which the tax was actually levied was, therefore, not the one that had been open to public inspection for review and correction. The company took advantage of this informality and did not pay its tax, and afterward obtained an injunction against the sale of its lands for delinquent taxes. COOLEY, C. J., delivered the opinion of the court. This is a bill to enjoin the collection of a tax. The only ground for relief which is assigned is, that the supervisor did not have his roll ready for review on

the third Monday of May as is required by law. It is not pretended that there has been an excessive valuation or any unauthorized levy; but relief is demanded and has been obtained on the sole ground of the irregularity mentioned.

So far as I am aware this is the first instance in the judicial history of the State in which equity has interfered to relieve a tax payer from his burden where inequality or injustice was not pretended and only a legal objection was relied upon. Palmer v. Rich, 12 Mich. 414, and Kenyon v. Duchane, 21 id. 498, were cases in which there was no jurisdiction to levy any tax at all. Motz v. Detroit, 18 id. 495, was a case in which the statute as to a part of the levy was defective, because it provided for no apportionment, and, therefore, in our view, provided for no tax. Scofield v. Lansing, 17 id. 437, was also one in which the objection went to the jurisdiction to make any levy at all. In Hanscom v. Hinman, 30 id. 419, and some other cases, sales have been set aside for irregularities, but only on a showing that the complainant had offered to do equity to the tax purchaser. In Conway v. Waverly, 15 id. 237, relief was refused to a tax payer who asked to have the collection of his taxes restrained on a showing that a portion of them were illegal, without distinguishing the legal from the illegal. This case was followed in Pillsbury v. The Auditor-General, 26 id. 245, in which the broad doctrine is insisted upon and enforced that he who demands relief from his taxes has no standing in a court of equity unless he offers to perform what is equitable.

If this complainant had shown that its property was excessively valued, and that the opportunity to be heard on the question of valuation had been lost by failure of the supervisor to comply with the law, the case would have been different. Nothing of that sort is pretended. We have a right to assume from all that appears in the bill that nothing has been lost by the irregularity, and that nothing is demanded from complainant but what it should pay. The relief here is demanded on a strictly legal right; it being assumed that if the legal objection to the tax is valid an equity necessarily springs from it. I do not think so. Even in the case of a tax, made excessive with fraudulent intent, we have required the person complaining of it to offer to pay that which was equitable before having relief from the remainder. Merrill v. Humphrey. 24 Mich. 170. And it cannot be pretended that one who is irregularly taxed, but not unfairly, has any greater claims upon a court of equity than one who is taxed both fraudulently and unequally.

I agree in the conclusions reached by my brother Marston. I also agree in what has been many times said by the Supreme Court of Illinois, that equity will not interfere to restrain the collection of the public revenue for mere irregularities. Either it should appear that the property is exempt from taxation, or that the levy is without legal power, or that the persons imposing it were unauthorized, or that they have proceeded fraudulently. Du Page v. Jenks, 65 Ill. 275, 286, and cases cited; Munson v. Miller, 66 id. 380, 383. In the case first named, one of the objections to the tax was very similar to that here taken. It was that the assessor had not called on the tax payer for a list of his taxable property as was required by law; and it was justly held that this afforded no ground for equitable relief. The same rule was laid down in State Railroad Tax Cases, 92 UT. S. 575. And see Cedar Rapids, etc., R. R. Co. v. Carroll County, 41 Iowa, 153.

In Canada it has been held in a well-reasoned opinion, that a failure to make an assessment by the day prescribed was not fatal, though the statute in terms required it to be made not later than the day named. Nickle v. Douglas, 35 U. C. Q. B. 126.

The decree below should be reversed and the bill dismissed, with costs of both courts.

Graves and Marston, JJ., concurred. Campbell, J., dissented.

UNSTAMPED SPIRITS AND FORFEITURES.

SUPREME COURT OF THE UNITED STATES-OCTOBER TERM, 1877.

UNITED STATES, plaintiff in error, v. Two HUNDRED BARRELS OF WHISKY.

Where a rectifler or wholesale liquor dealer knowingly omits to cause packages of distilled spirits containing more than twenty gallons each on his premises to be gauged, inspected and stamped, in accordance with section 25 of the act of July 20, 1868, the property is liable to forfeiture under section 57 of the act, but the forfeiture imposed by section 96 does not apply. And it cannot be made to apply by any rules which the commissioner of internal revenue prescribes under section 2 of the act.

Α'

PPEAL from the Circuit Court of the United States for the District of Louisiana. The facts appear in the opinion.

Mr. Chief Justice WAITE delivered the opinion of the court.

This case presents the question whether property owned by and found upon the premises of a rectifier or wholesale liquor dealer can be seized as forfeited to the United States under section 96 of the "Act imposing taxes on distilled spirits," etc., passed July 20, 1868 (15 Stat. 164), because such rectifier or wholesale liquor dealer has knowingly and willfully neglected, omitted or refused to cause packages of distilled spirits containing more than twenty gallons each, filled for shipment or sale on his premises, to be gauged, inspected and stamped in accordance with the provisions of section 25 of the same act.

* *

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Section 25 provides, that whenever any cask or package of rectified spirits shall be filled for shipment, sale or delivery on the premises of any rectifier who shall have paid the special tax required by law, it shall be the duty of a United States gauger to gauge and inspect the same and place thereon an engraved stamp of a particular kind, and whenever any cask or package of distilled spirits shall be filled for the same purpose on the premises of any wholesale liquor dealer, it shall be the duty of the United States gauger to gauge, inspect and stamp the same in a like manner. Section 96 provides, "that if any ** rectifier or wholesale liquor dealer shall knowingly and willfully omit, neglect or refuse to do or cause to be done any of the things required by law to be done in the carrying on or conducting of his business, or shall do any thing by this act prohibited, if there be no specific penalty or punishment imposed by any other section for the neglecting, omitting or refusing to do, or for the doing or causing to be done the thing required or prohibited, he shall pay a penalty of one thousand dollars, and * * * all distilled spirits or liquors owned by him or in which he has any interest as owner * * * shall be forfeited to the United States."

Section 57 provides, that "all distilled spirits found after thirty days from the time this act takes effect, in

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