NILES V. RHODES. genuine Piper's champagne made in this country; all real champagne is made in France." The plaintiffs here rested their case, and the cause was thereupon submitted to the jury under the charge of the circuit judge. The counsel for the defendant requested the circuit judge to charge the jury: That to find a verdict for the plaintiffs they must be satisfied, from positive proof in this case, that the wines and ales mentioned are of foreign production, and were imported and duties paid thereon under and in accordance. with the laws of the United States. The circuit judge did so charge, and plaintiffs excepted. The defendant's counsel also requested said circuit judge. to charge the jury, that the admission of the defendant that the account proved was correct, is not positive proof that the wines and ales were of foreign production, and imported under the laws of the United States, and in accordance therewith. This charge also the judge gave, and plaintiff excepted. The defendant's counsel also requested the circuit judge. to charge the jury, that to entitle the plaintiffs to recover for domestic wines and ales sold, they must prove them to be of domestic manufacture. And the judge charged the jury that the party claiming the benefit of the exemption of domestic wines from the operation of the statute, must prove himself within the exception. which charge plaintiff's also excepted. To Plaintiffs' counsel then requested the judge to charge the jury, that admissions of the defendant are positive proof within the meaning of the statute. Also, that if the jury find, from the evidence before them, that the liquors sold were of foreign production, the legal presumption arises from that fact, and the fact of their being sold here, that they were regularly imported in accordance with the laws of the United States. Also, that if they found, from the evidence before them NILES . RHODES. that the wines (mentioned in the bill) were of domestic production, a recovery for the price thereof is not prohibited by law. All which requests the judge refused, and as to the first two charged directly the contrary; and plaintiffs excepted. Judgment having passed for defendant in the court below, plaintiffs brought error, and assigned errors in this court as follows: "And now come the said plaintiffs by Chas. P. Crosby, their attorney, and say that in the record and proceedings aforesaid there is manifest error, in this, to wit: That the judge of the said circuit court, at the trial of the said cause in that court, gave the several instructions to the jury asked for by the defendant, and refused to give the several instructions, or any or either of them asked 'for by the plaintiffs. And also that judgment was rendered by the said circuit court in favor of the defendant in said court, and against the plaintiffs; whereas, by the law of the land the plaintiffs in the said said circuit court should have had judgment against the defendant. Therefore the said plaintiff's in error pray that the judgment aforesaid may be reversed and held for nought, and for judgment against the defendant.” Whittemore & Crosby, for plaintiffs in error. 1. The law only requires positive proof of the character of the wine- whether foreign or not- and not of the manner and mode of importation. Being both penal and in derogation of the common law, this act must be strictly construed. But we claim this to have been its real intent, and that such intent is alone consistent with the exemption of foreign liquors from the operation of the statute, as expressed in the first words of the section under consideration. The construction given by the circuit judge would effectually defeat this exemption, in practice. 2. But the admissions of the party are positive evidence. They clearly partake in no degree of the nature of circum 7 MICH-Z. stantial evidence. NILES V. RHODES. And the wine being thus, and by the testimony of Bourke, proved positively to have been of foreign production, and imported and sold in the original packages, the conclusion necessarily follows that it was imported according to law, and the duties paid.-3 Bl. Com. 371; 1 Greenl. Ev. §§14, 34, 40. 3. The statute exempts all foreign and domestic wines from its operation, subject only to the restriction as to quantity and original packages in the case of those which are foreign. And as all must be either foreign or domestic, all are excepted unless outside this restriction. Sec. 1661 of Comp. Laws does not prohibit the sale of wine, and the onus is on defendant to show it to be foreign, and bring his case within the prohibitions of the statute. If he show it to be domestic wine, it may be lawfully sold; and so also if he show it to be foreign, unless smuggled in, or not sold in the original packages. And when it is admitted to be foreign, we have a right to go to the jury on the presumption rising from that fact that the duties have been paid, since the law will not presume the commission of crime. Holbrook & Bishop, for defendant in error. There is no special assignment of errors as required by rule 12.7 Ind. 580; 23 Pa. St. 198; 24 Ibid. 286; 1 Kern. 416. There was no error in the charge of the court. CHRISTIANCY J.: A preliminary objection is made to the form in which the errors are assigned. The 12th rule requires every assignment of error to be special. By this we understand that every error relied upon must be pointed out with such certainty that the defendant in error, and the court, may see from the assignment itself, every particular ground upon which a reversal of the judgment is claimed, and that the record may always disclose the grounds upon which the judgment may have been reversed or affirmed. NILES . RHODES. There were, in the court below, three distinct requests to charge, made by defendant's counsel in writing. The court in answer to these several requests, charged substantially as requested. The counsel for plaintiffs also made three separate requests to charge, each of which was refused. In answer to two of these the court charged directly the contrary, without qualification, and simply refused the last. To each of these charges and refusals plaintiffs took a distinct exception. These several requests, refusals and charges, are separately and distinctly set forth in the bill of exceptions. The assignment of errors clearly refers to the bill, which is thus in effect made part of it. By this reference the errors complained of become as certain and specific, as if the assignment had repeated each of these separate requests, refusals and charges, in hæc verba, with the usual allegation of error to each; and needless repetition is avoided. The words "several instructions" used in the assignment are to be rendered distributively as applying separately to each. True the assignment does not, in so many words, allege any error in the instructions given in answer to the first and second of the plaintiffs' requests, but as these instructions. were the direct contrary of the requests, and exceptions were taken to the refusals, the same questions are raised. This form of assignment would not, of course, be sufficient in any case where the grounds of error relied upon were not rendered certain by reference. Here they could have been rendered no more certain by repetition in the assignment. We must therefore consider the questions presented by the exceptions. Before doing so it may be well to take a general view of some of the main features of the statute under which the questions arise. By the first section, "No person shall be allowed to manufacture or sell at any time, by himself, his clerks, servants or agents, directly or indirectly, any spirituous or intoxicating liquors, or any mixed liquors, a part of which NILES V. RHODES. is spirituous or intoxicating, [except cider, beer, and wine of domestic manufacture,] and except, also, as hereinafter provided." I have placed in brackets the words inserted by the amendment of February 17th, 1857. The second section is in the following words: "SEC. 2. All payments for such liquors hereafter sold in violation of law, shall be considered as having been received without consideration, and against law and equity, and any money or thing paid therefor may be recovered back by the person so paying the same, his wife, or any of his children; and all sales, transfers, grants, releases, quitclaims, surrenders, mortgages, pledges and attachments of real or personal estate, and liens and securities thereon, of whatever name or nature, and all contracts or agreements relating thereto hereafter made, the consideration whereof, either in whole or in part, shall have been the sale or agreement to sell any such liquor, shall be utterly null and void against all persons and in all cases, excepting only as against the holders of negotiable securities, or the purchasers of property who may have paid therefor a fair price, and received the same upon a valuable and fair consideration, without notice or knowledge of such illegal consideration; nor shall any suit at law or in equity be had or maintained upon any contract or agreement whatever hereafter made, the consideration whereof shall be either wholly or in part the sale of such liquors in violation of law, excepting only when such suit is brought by such bona fide holders of negotiable paper, or purchasers of property without notice: nor shall any demand, arising upon any such contract or agreement whatever, be offered or allowed as a set-off or defense in any action whatever." By the third and several following sections heavy penalties are imposed for the sale of liquors in violation of the law. By the fourteenth section those sellers of drugs and |