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“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 sur-) power, either with or without treaties. See Holmes render a fugitive from justice to another govern- | v. Jennison, 14 Pet. 540, and The People ex rel. Francis ment for trial, and that, as a judicial officer of the Burlow y Curtis, 50 N. Y. 321. l'nited States, I have no authority whatever, either The delivery of Arguelles, being wholly without to arrest or detain, with a view to such surrender.” | any legal authority, was not at all excusable by the The United States had no extradition treaty with | fact that the alleged fugitive was supposed to be Portugal; and hence the prisoner, who was a Portu guilty of a heinous offense. This supposition, if guese subject, was at once discharged. This case true, does not change the principle or the nature of occurred in 1835.
the act. Rules of law do not vary with the merits In The Matter of the British Prisoners, 1 Woodb. or demerits of the particular case to which they are & Minot, 66, which, in 1845, came before the applied. Lynching men for murder, not being the United States Circuit Court for the first circuit, method prescribed by law for killing murderers, is Judge Woodbury, after stating the facts of the itself an act of murder. So the forcible seizure of case, proceeded to say: "It was then a proper a person and the delivery of him to the agent or case, and one expressly enumerated under the stip- agents of another government, to be removed from ulations of the treaty of 1812 for the surrender of a the jurisdiction and protection of the laws of tbis supposed offender. But without such a stipulation, country, and to be tried for a crime or crimes comhowever fit it might seem in comity or morals to mitted elsewhere, unless authorized and provided surrender citizens of other countries to answer for for by a treaty, can have no other legal character offenses committed at home against their own laws, than that of kidnapping. The action of the execit is usually considered that there is no political utive branch of the government, in the case of obligation under the laws of nations to do it." Arguelles, was an enormous usurpation of power
In Adriance v. Lagrave, 59 N. Y. 110, Chief and, as a precedent, is one of the very worst in our Justice Church, in stating the opinion of the Court whole history. It ought to have called forth the of Appeals, said: “It was formerly very much most unqualified censure on the part of Congress. questioned among jurists whether the surrender of The theory that any person, peacefully coming fugitives from justice, by one government to an within the jurisdiction of our laws, and committing other, was a duty or obligation imposed by the law no offense against them, may, in the absence of any of nations or depended upon courtesy or comity, treaty or law of Congress authorizing his extradiwhich might, or not, be exercised at the pleasure
tion on the charge of crime made by a foreign governof each government without cause of complaint. ment, be denied the right of unmolested asylum at In this country, and in England at least, it has the discretion of the President of the United States, been substantially settled that no such duty exists; assigns to his office the prerogatives of an absolute and in practice it is believed that in nearly all despot. Such was the theory put in practice with countries neither demand nor surrender is now reference to Arguelles. We have selected this case, made, except in obedience to treaty stipulations." | not on account of the man himself, but on account So, also, in The Matter of Metzger, 5 How. 176, the
of the principle involved in it, and especially for Supreme Court of the United States said: “The the purpose of considering the question whether surrender of fugitives from justice is a natter of
| the General Government, independently of treaties, conventional arrangement between States, as no such | is clothed with the power of international extradiobligation is imposed by the law of nations."
tion, and also whether such extradition on the The preponderance of authority derived from simple basis of the law of nations has any legal practice, the legislation of Congress, the opinions of standing among the American people. The prethe attorney-generals of the United States and the ponderance of authority is overwhelmingly against deliverances of the judiciary, both State and Fed
the idea. eral, clearly shows that no department of the general government is either bound or authorized | SIR JAMES STEPHEN ON CRIMINAL LAW. to deliver up fugitive criminals from other coun
LONDON, Dec. 6, 1877. tries, except in those cases for which provision
THE December number of the Nineteenth Century
I contains an interesting paper by Sir James F. Steis made by treaty. The powers of the Government
phen, entitled “Suggestions as to the Reform of the are bestowed by the Constitution; and, except as it
Criminal Law.” After premising that (in his belief) may be clothed with the extradition power through codification lies at the root of all real reform on the treaties, no such power is found among the express subject, the writer divides his paper into three heads. or implied grants to Congress, or among those to viz.: the executive department, or among the powers
1. The arrangements for holding assizes and quarter
sessions. given to the Federal judiciary. There can be no
2. The management of trials, and particularly the discretion in the exercise of the power, since it does
question as to the interrogation of accused persons. not exist at all. The State governments, under the ! 3. The question of appeals in criminal cases.
The first of these has little interest for your readers, ination of the prisoner. That it did so in point of fact but I may mention that the writer holds in favor of a is proved by the earliest reports preserved to us of
trials of importance. Up to the very end of the large extension of the jurisdiction of the lower courts
seventeenth century the practice continued, but in the -- the quarter sessions. He suggests, in fact, that they course of the eighteenth century it appears to have should try nearly all common offenses, treason, mur been given up, so far as the trial was concerned.
" It is natural to ask what was the reason of so imder, rape and libel being the only crimes he excepts
portant a change, made silently and without the interby name, but that they should not be allowed to pass
vention of any statute or judicial decision. I believe sentences of more than ten years' penal servitude. that the change may be regarded as marking the final He also strongly deprecates the frequent resort to the
triumph of a feeling which played a very conspicuous
part in our history – excessive jealousy of the proassistance of the bar in supplementing the labors of
cedure founded upon the version of the Roman law the judges at assizes, preferring rather the appoint which prevailed all over the Continent, and which, in ment of additional judges, and on this head illustrates this country, was associated with arbitrary power in
two of its most unpopular forms. * * The Engwith an anecdote: “ While a prisoner was being tried
lish disliked the procedure of the civilians, not only before a commissioner, the solicitor for the defense because it was connected with torture, but because it asked his counsel to raise some frivolous objection. was connected with the ecclesiastical courts and the
Star Chamber. The counsel refused on the ground that the commis
“Such is the history of the present law, told shortly. sioner would overrule it. The solicitor replied, 'Oh! It shows that our present system was nerfrestablished he is all right; I have just given his clerk a brief.'” by any express or deliberate act of legislation, either What will be of greater interest in New York is Sir
parliamentary or judicial; that it cannot even be said
to be ancient; that it is probably due to a jealousy of James's opinion regarding the policy of admitting the despotic power, the exciting causes of which have now evidence of accused persons, as opposed to the existing passed away; and lastly that it is maintained after the state of the law; and on this head I propose to quote
rule of evidence which was regarded as its main justi
fication has been deliberately altered, on the ground bim pretty freely. After reciting the law as it stands,
that it was found by experience to be mischievous. he says :
These considerations do away with any presumption "The objections to this state of the law are so obvi
in favor of the rule which might be supposed to be ous and so strong that it is hardly necessary to state
raised by the fact of its existence, and show that the them. If the object of a criminal trial is to ascertain
matter ought to be considered on its merits. the truth, why debar yourself by elaborate precautions
" Wheu the subject is looked at from this point of from access to what, in the nature of things, must be
view, it seems hardly to admit of dispute that prisof all sources of information the best informed? If
oners ought to be questioned. The commonest experithe object of a criminal trial is not to ascertain the
ence shows that in the very nature of things this must truth, what is its object? The answer to this, as to all be an advantage to an innocent and a disadvantage to such questions, is, that the question, What ought to
a guilty person. Au innocent man may often find it exist ? can hardly be answered satisfactorily till we
very difficult to give an explanation of the various cirhave answered the previous question - How did the
I cumstances which make against him, if he is left to existing state of things come into being? When this
find out for himself in what respect they are suspicious, question is answered, it becomes comparatively easy
and is obliged to throw bis defense into the form of a to deal with the other.
connected statement. The very fact that he is inno“Condensed to the highest degree, the history of
cent will often make it diflicult for a person to underEnglish criminal trials is somewhat as follows: In the
stand the grounds on which he is supposed to be guilty, very earliest period of our history the minute and
and will thus make it far more difficult than it would careful scrutiny of facts to which we are now accus
otherwise be for him to give explanations necessary to tomed was practically unknown. Before and for some
establish his innocence." time after the Conquest our ancestors relied upon com From this point I fear your space will compel me to purgations and ordeals. The accused was to bring so
confiue myself to a mere statement of the opinions many people to swear to his innocence. If he could not, or if he was accused more than once, or if his
expressed, without even an attempt to set out the compurgators were suspected of perjury, he 'ceased to arguments in their support. Sir James, then, does not be oath-worthy, and became ordeal-worthy.' He had
agree that prisoners should be rendered competent to be thrown into a pool of water. If he sank he was innocent (but I have some doubt whether he was not
witnesses in criminal, as parties are in civil cases; his left to drown). If he floated he was hung, or at one principal objections being that a prisoner could not be time blinded and otherwise mutilated. By degrees punished for committing perjury in his own behalf, and these barbarous expedients were supplanted by the inquest, which was qualified to some extent by the
that cross-examination to credit would be revolting in trial by battle. The essence of the inquest was, that
humanity; while, in the absence of such cross-examiquestions of guilt and innocence were decided on the nation, the prisoner would not, in reality, be a witness. sworn reports of what might be called ex officio wit
He would be exempted from one strong motive for nesses. The verdicts of juries proceeded upon their personal knowledge, whether immediate or derived
telling the truth, and from one of the most searching from hearsay, of the offenses committed in their own tests to which a witness's credit can be subjected. The neighborhood. Gradually the jury ceased to be in any testimony of the accused, therefore, considered merely seuse witnesses, and by the middle of the sixteenth century the ordinary form of a criminal trial was,
as testimony, would be simply valueless. Let, then, with some few exceptions, very much what it is now. the ordinary witness testify as at present, under every
“One of these exceptions, however, bears upon this sanction which can be devised for the purpose of secur: very point of interrogating the prisoner. The follow
ing his veracity. Examine the accused not as a witing short extract is worth reading: The judge * * $ asketh first the party robbed
ness, but in order, if he is innocent, to give him an if he knows the prisoner, and biddeth him look upon
opportunity of proving his innocence by explaining him. He saith ‘Yea.' The prisoner sometimes saith matters apparently suspicious; and in order, if he 18
Nay.' The party pursuant giveth good signs, verbi guilty, to prove his guilt by showing that he is unable gratia. I know thee well enough. Thou robbedst me in such a place, thou beatedst me, thou tookest
to give such explanations when he has every possible away my horse from me, and my purse. Thou hadst reason to do so, and when his attention is pointedly such a coat and such a man in thy company.' The directed to the subject. thief will say 'No,' and so they stand a while in alter
"Such being the object for which prisoners ought to cation.
be questioned, how ought it to be done? I think it is "The trials thus ran into the shape of altercations highly desirable that a first examination should be between the prosecutor and the accused, and this must made before the committing magistrates. Such a step of necessity have involved a very effective cross-exam- ! would make it practically almost impossible to devise
SUPREME COURT OF RHODE ISLAND.*
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 cau 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 owl 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 planı, 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 couceivable tests may be applied for discovering whether he is innocent or guilty."
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 innoceut. 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 neces. sary, 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.
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. PILL in equity for specific performance, brought by D the complainant, vendee, on the following agreement set out in the 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.
" WILLIAM HARRIS. “PROVIDENCE, October 4, 1871.".
John C. Pegram & Abraham Payne, for complainants.
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 suflicient. It is not, therefore, decisire of this case. Flight v. Bolland, 4 Russ. 298.
Upon the point that a feme corert having a separate statutory estate cau 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, auswer and rep. lication, 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 whether to decree specific performance or leave the paid, or offered to pay, the remainder of the money. parties to their remedy at law. Simmons v. Hill et al.,
Louis J. Doyle, in his deposition, says that he called 4 Harr. & McII. 25:2; Willard v. Tayloe, 8 Wall. 557; on the defendant on December 4, when the time ex Marble Co. v. Ripley, 10 id. 339. pired, and asked for further time, and that nothing Chancellor Kent, in Benedict v. Lynch, 1 Johns. Ch. was said about extending it for any definite period. 370, 376, thus comments on the mischief likely to arise
The defendant, in his deposition, says that Doyle from the lax indulgence of this discretion: “The called on him a few days after December 4th, and notion that seems too much to prevail, that a party further states that the value of the land had materi may be utterly regardless of his stipulated payments, ally risen between the middle of December, 1871, and and that a court of chancery will almost at any time the filing of this bill.
relieve him from the penalty of his gross negligence, The argument of the complainant proceeds on the is very injurious to public morals." ground that he was not bound to offer the money until And it has even been held that the plaintiff must the other party tendered him a deed.
not only tender the money but must follow it up by If the defendant was suing for performance, it would bringing it into court. Doyle et al. v. Teas et al., 5 then be important for him to show that he had ten- Ill. 202, 265, 267. dered a sufficient deed.
Was the time ever extended and if so, how long? But here the complainant claims performance as We have on this point only the conflicting evidence of vendee.
the answer and the two depositions; and considering By the English practice, in order to put the vendor the weight to which the answer is entitled, and that in default, the vendee must not only tender the money, the burden of proof is on the complainant, we cannot but must himself prepare and offer a deed to be exe- | hold that there was any extension but for a definite cuted by the vendor. And many of the English cases time. have turned on the difficulty of making a good title, The respondent, in his answer filed in May, 1872, growing out of their intricate system of real estate swears that he was willing and ready to execute the law.
deed. For some reason the depositions were not taken While there are conflicting cases in this country we until 1875, and the respondent, in his deposition, swears believe the weight of authority to be that the tender | that he was willing to give the deed not only up to the of a deed by the vendee is unnecessary, as it is gener- filing of the bill in May, 1872, but up to the time he ally prepared by and at the expense of the vendor. sold the lot to another person in the autumn of 1874. See notes to Sugden's Vendors and Purchasers, *263. And the complainant does not offer any evidence, or And in the United States Supreme Court, in Taylor v. even claim that he has ever tendered or demanded a Longworth et al., 14 Pet. 172, Judge Story, delivering deed; or tendered the money or offered to pay it. the opinion of the court, holds that the local practice | Bill dismissed, but without costs. should prevail; and the general understanding here, we believe, has been that the vendor is to prepare the
COLLECTION OF TAXES NOT RESTRAINED deed.
FOR LEGAL INFORMALITIES. At law the vendee suing must show either a strict performance on his part, or a tender and refusal.
SUPREME COURT OF MICHIGAN --OCTOBER TERM, And in equity the party suing is not discharged from
1877. performance any more than at law, except in cases of accident or mistake on his part, or laches or default on
ALBANY AND Boston MINING CO. V. AUDITOR-GENthe other side. He must show that he has not been in
ERAL. default himself. Walker v. Jeffreys, 1 Hare, 341, 348,
The collection of a tax will not be enjoined in equity for 352; Voorhees v. De Meyer, 2 Barb. S. C. 37. Equity
mere legal irregularities, such as that the assessment excuses actual performance in some cases where it roll was not ready for review on the day prescribed.
The property must have been exempt, or the levy withwould bave been of no avail, as where a tender would
out legal power, or the persons imposing it unauthorhave been refused. Fry on Specific Performance, ized, or they must have proceeded fraudulently. $ 619; Hunter v. Daniel, 4 Hare, 420, 4:33. So in cases of THE law of Michigan prescribes how the annual asaccident or mistake, or justifiable excuse, where the 1 sessment roll shall be made up, corrected and cerother party suffers no injury. Longworth v. Taylor, 1 tified to, as a preliminary to the collection of taxes. McLean, 395, 400, 402. He must perform or show a The supervisor of Franklin township, in Houghton readiness to perform, or some default of the other county, where the complainant company has property, party which excuses him. McNeil v. Magee, 5 Mason, did not follow the statutory rule in preparing the as244, 256; Fry on Specific Performance, $ 608; 2 Eq. Ca. sessment roll for 1874, but merely made pencil changes Abr. 33; Wood v. Perry, 1 Barb. S. C. 114, 131. And upon that for 1873, and after inserting the correcthe defendant's negligence cannot excuse the com tions, made on the days when the roll was open to the plainant. Fry on Specific Performance, $ 608. And if public for review, he drew off a copy of it and certithe court finds that there was a sufficient excuse, that l tied to the correctness of that instead of certifying to delay of payment has not operated injuriously, that | the original. The roll upon which the tax was actuthe condition of the parties and the value of the prop ally levied was, therefore, not the one that had been erty remains unchanged, and the same justice can be
open to public inspection for review and correction. done, it will grant relief. Longworth v. Taylor, 1 Mc The company took advantage of this informality and Lean, 395, 400, 402; Opinion of Story, J., in Taylor v. did not pay its tax, and afterward obtained an injuncLongworth et al., 11 Pet. 172; Doleret v. Rothschild, 1 tion against the sale of its lauds for delinquent taxos. Sim. & Stu. 590; Crofton v. Ormsby, 2 Sch. & Lef. 583, COOLEY, C. J., delivered the opinion of the court. 603; Benedict v. Lynch, 1 Johns. Ch. 370; Scott v. This is a bill to enjoin the collection of a tax. The Fields et al., 1 Ohio, 20 part, 90, and cases there cited. only ground for relief which is assigned is, that the
It is a matter for the sound discretion of the court supervisor did not have his roll ready for review on the third Monday of May as is required by law. It is In Canada it has been held in a well-reasoned opinion, not pretended that there has been an excessive valua that a failure to make an assessment by the day pretion or any unauthorized levy; but relief is demanded scribed was not fatal, though the statute in terms reand has been obtained on the sole ground of the irregu quired it to be made mot later than the day named. larity mentioned.
Nickle v. Douglas, 35 U. C. Q. B. 126. So far as I am aware this is the first instance in the The decree below should be reversed and the bill judicial history of the State in which equity has in dismissed, with costs of both courts. terfered to relieve a tax payer from his burden where Graves and Marston, JJ., concurred. Campbell, J., inequality or injustice was not pretended and only a dissented. legal objection was relied upon, Palmer v. Rich, 12 Mich. 414, and Kenyon v. Duchane, 21 id. 498, were UNSTAMPED SPIRITS AND FORFEITURES. cases in which there was no jurisdiction to levy any tax at all. Motz v. Detroit, 18 id. 495, was a case in SUPREME COURT OF THE UNITED STATES-OCTOwhich the statute as to a part of the levy was defect
BER TERM, 1877. ive, because it provided for no apportionment, 'and, therefore, in our view, provided for no tax. Scofield UNITED STATES, plaintiff in error, v. Two HUNDRED v. Lansing, 17 id. 437, was also one in which the objec
BARRELS OF WHISKY. tion went to the jurisdiction to make any lery at all.
Where a rectifter or wholesale liquor dealer knowingly In Hanscom v. Hinman, 30 id. 419, and some other cases, omits to cause packages of distilled spirits containing sales have been set aside for irregularities, but only on
more than twenty gallons each on his premises to be
gauged, inspected and stamped, in accordance with a showing that the complainant had offered to do section 25 of the act of July 20, 1868, the property is equity to the tax purchaser. In Conway v. Waverly, liable to forfeiture under section 57 of the act, but the
forfeiture imposed by section 96 does not apply. And 15 id. 237, relief was refused to a tax payer who asked it cannot be made to apply by any rules which the comto have the collection of his taxes restrained on a missioner of internal revenue prescribes under section
2 of the act. showing that a portion of them were illegal, without distinguishing the legal from the illegal. This case was APPEAL from the Circuit Court of the United followed in Pillsbury v. The Auditor-General, 26 id. A States for the District of Louisiana. The facts ap243, in which the broad doctrine is insisted upon and pear in the opinion. euforced that he who demands relief from his taxes Mr. Chief Justice WAITE delivered the opinion of the has no standing in a court of equity unless he offers court. to perform what is equitable.
This case presents the question whether property If this complainant had shown that its property was owned by and found upon the premises of a rectifier excessively valued, and that the opportunity to be heard or wholesale liquor dealer can be seized as forfeited to on the question of valuation had been lost by failure the United States under section 96 of the “ Act imposof the supervisor to comply with the law, the case ing taxes on distilled spirits," etc., passed July 20, 1868 would have been different. Nothing of that sort is (15 Stat. 164), because such rectifier or wholesale liquor pretended. We have a right to assume from all that dealer has knowingly and willfully neglected, omitted appears in the bill that nothing has been lost by the or refused to cause packages of distilled spirits conirregularity, and that nothing is demanded from com- taining more than twenty gallons each, filled for shipplainant but what it should pay. The relief here is ment or sale on his premises, to be gauged, inspected demanded on a strictly legal right; it being assumed and stamped in accordance with the provisions of seothat if the legal objection to the tax is valid an equity tion 25 of the same act. necessarily springs from it. I do not think so. Even Section 25 provides, that whenever any cask or packin the case of a tax, made excessive with fraudulent age of rectified spirits shall be filled for shipment, sale intent, we have required the person complaining of it or delivery on the premises of any rectifier who shall to offer to pay that which was equitable before having | have paid the special tax required by law, it shall be relief from the remainder. Merrill v. Humphrey. 24 the duty of a United States gauger to gauge and inMich. 170. And it cannot be pretended that one who spect the same and place thereon an engraved stamp of is irregularly taxed, but not unfairly, has any greater a particular kind, and whenever any cask or package claims upon a court of equity than one who is taxed of distilled spirits shall be filled for the same purboth fraudulently and unequally.
pose on the premises of any wholesale liquor dealer, I agree in the conclusions reached by my brother it shall be the duty of the United States gauger to Marston. I also agree in what has been many times | gauge, iuspect and stamp the same in a like manner. said by the Supreme Court of Illinois, that equity will Section 96 provides, “ that if any * * * rectifier not interfere to restrain the collection of the public or wholesale liquor dealer * * * shall knowingly revenue for mere irregularities. Either it should ap and willfully omit, neglect or refuse to do or cause to pear that the property is exempt from taxation, or that be done any of the things required by law to be done the levy is without legal power, or that the persons im in the carrying on or conducting of his business, or posing it were unauthorized, or that they have pro shall do any thing by this act prohibited, if there be ceeded fraudulently. Dnt Page v. Jenks, 65 Ill. 275, no specific penalty or punishment imposed by any 286, and cases cited; Munson v. Miller, 66 id. 380, 383. other section for the neglecting, omitting or refusing In the case first named, one of the objections to the to do, or for the doing or causing to be done the thing tax was very similar to that here taken. It was that required or prohibited, he shall pay a penalty of one the assessor had not called on the tax payer for a list thousand dollars, and * * * all distilled spirits or of his taxable property as was required by law; and liquors owned by him or in which he has any interit was justly held that this afforded no ground for est as owner * * * shall be forfeited to the United equitable relief. The same rule was laid down in States." State Railroad Tax Cases, 92 U. S. 575. And see Cedar Section 57 provides, that “all distilled spirits found Rupids, etc., R. R. Co. v. Carroll County, 41 Iowa, 153. T after thirty days from the time this act takes effect, in