numbers are separate and distinct for each vessel, and watches it until it reaches the consumer.

Distilled spirits are defined by statute as being the substance known as ethyl, alcohol, hydrated oxide of ethyl, or spirit of wine, commonly produced by the fermentation of grain, starch, molasses or sugar, including all dilutions and mixtures of this substance.1 The tax attaches to this substance as soon as it is in existence, and no mash, wort, or wash fit for distillation is allowed to be distilled in any other place than an authorized government distillery.

Where the wash used was one barrel of molasses to twenty barrels of water, to which was added sour beer to increase the fermentation, in order to manufacture vinegar, although the per cent. of alcohol was very small, not being more than four or five per cent. of the volume of the wash, it was within the statute. So soon as alcohol is produced it is subject to tax, and although the wash or wort used, may not be such that it could be profitable to distil it, to make alcohol for sale, yet if alcohol is involved in the process it is within the statute. The fermentation of any saccharine matter evolves alcohol; distillation is only the mechanical process of separating the spirits from the other substances contained in the wash.2

The distiller is also defined by statute. He is the person who produces distilled spirits, or who brews or makes the mash, wort or wash fit for distillation, or who by any process of evaporation separates alcohol from any fermented substances. A person who does not separate the alcohol, but has in his possession or use a still, and who also keeps a mash, wort or wash, is a distiller. The mash or wort is the grain, in a fermented state. It is prepared, by heating, mashing and soaking it in water, and then adding some ferment as yeast, or sour beer. If the substance added is sweet, it is called sweet mash, if it be sour, it is called sour mash. A person who is not actually conducting the distillery may be a distiller. If he has a mill near by which is benefited by the tolls, and in addition he has an interest in the land on which it is situated, so as to have control of it, and knows that the law is violated in the management of it, he is a distiller."

Before the distiller can commence operations, there are numerous conditions with which he must comply.

1. The first step is to register his still with the collector of the

1 R. S. U. S. S§§ 3247, 3282.

2 United States v. Frussing, 12 Int. Rev. Rec. 34; Davidge & Kimball, Int. Rev Laws, p. 345.

3 R. S. U. S. § 3242.

4 United States v. Howard, 11 Int. Rev. Rec. 119.

district, by filing duplicate statements, showing where the still or apparatus is set up, the kind of still, its cubic contents, the owner thereof, his place of residence, and the purpose for which it has been, or is intended to be used. One of these statements is preserved by the collector, and the other is forwarded to the commissioner.1

2. The next step is to give a notice in writing to the collector. This notice is to contain: (a) the name and residence of the distiller, if a firm the name of each member; (b) the precise place where the business is carried on, if in a city to be indicated by the name of the street and the number of the building; (c) the kind of stills, cubic contents thereof, number and kind of boilers, number of mash and fermenting tubs and their cubic contents, number of receiving cisterns and their cubic contents, the number of hours in which the distillery will ferment each tub of mash; (d) the estimated capacity of the still in twenty-four hours; (e) a particular description of the lot or tract of land on which the distillery is situated, the buildings thereon, their size, material and construction, and that it is not within six hundred feet in a direct line from a rectifier.2

If any change takes place in the location, form, capacity, ownership, agency, superintendence, or in the persons interested in the distillery, or in the time of fermenting the mash or beer, the collector must be notified in twenty-four hours.3

3. Bond. At the time of filing the notice, and before commencing business, the distiller is to execute a bond with two sureties, to be approved by the collector, in a penal sum of double the amount of tax on the quantity of spirits the distillery is capable of producing in fifteen days. If the business continues, on the first of May of each succeeding year, a new bond is to be executed. The form of this bond is prescribed by the commissioner. It is conditioned: (a) to comply with all the provisions of law relating to the duties and business of distillers; (b) to pay all penalties incurred or fines imposed, for violation of the provisions of the law; (c) that he will not suffer the lot or tract of land on which the distillery stands, or any part thereof, or any of the distillery apparatus to be incumbered by mortgage, judgment or other lien during the period the business is carried on. The collector may refuse to approve the bond, not only on account of the sureties, but also if he thinks the situation is such as to enable the distiller to defraud the United States. The distiller may appeal from the decision in the latter case to the commissioner, whose decision is final. A new bond may be required in case of

1 R. S. U. S. § 3258. Stills of the capacity of five gallons or less must be registered, but not taxed unless used for distillation of spirits.

22 Int. Rev. Rec. 397.

2 R. S. U. S. §3259.

3 R. S. U. S. §3259.

the death, removal or insolvency of the sureties, or in the discretion of the collector or commissioner, in any other contingency that may arise.1

The form of the bond is to be prescribed by the commissioner, but it is not essential to its validity that it should be in that form. If a bond be taken with condition to truly and faithfully comply with the provisions of the act, it is good as a common-law bond, and if the breaches assigned are of the provisions of the law, the obligors are liable. The fact that the distiller is compelled to execute this bond before commencing business, does not affect its character as a voluntary bond; it is not made under compulsion; it is of his own will that he enters into the business. By the act of March 29th, 1869, proprietors of distillery warehouses were required to reimburse to the United States, the expense and salary of storekeepers. The payment of the sums expended by the United States is one of the duties embraced in the condition of the bond, where it is executed after the passage of the act, and the moneys were expended after the act, but where the moneys were expended before the passage of the act, the obligors are not liable. The bond may cover not only duties imposed by existing laws, but duties belonging to and naturally connected with the business, imposed by subsequent laws. It does not, however, extend to new duties disconnected from and foreign to the business, such as reimbursing the government for paying its own

officers.

The place where the distillery is carried on is a material matter. It is fixed in the notice, and the bond is for a business carried on at that place. If it be carried on at another place the sureties are not liable. The place designated may not be within six hundred feet of a rectifying establishment. The lot or tract of land must be free from liens, and the surety is entitled to be substituted to the lien which the United States has on the premises for the tax, so that the place may have been a controlling element in the influences that induced the sureties to execute the bond. They might not have been willing to become surety for the distiller at another place. In the case cited, the notice was to conduct a distillery "at the corner of Hudson street and East avenue, situate in the town of Canton." It was actually conducted at the corner of Hudson and Third streets, in

'R. S U. S. § 3260.

United States v. IIodsen, 10 Wall. 395.

3 United States v. Powell, 14 Wall. 493.

+ United States v. Singer, 15 Wall. 11.

United States v. Boecker et al. 21 Wall, 652.

the same town, about four squares distant from the place first named. The sureties were held to be discharged by the failure to conduct the business at the place named in the notice.

A bond executed by a married woman is valid, if by the local laws of the State in which the distillery is, she has capacity to make contracts separate and apart from her husband. The court, in the case cited, inclined to the view that the acts of Congress themselves would give her the capacity to execute such bond, if she engaged in the occupation of a distiller, although she did not have the right to make contracts separate from her husband, by the local laws of the State.

Before the collector approves this bond, he must be satisfied that the distiller is the owner in fee of the lot or tract of land on which the distillery is situated, and that it is unincumbered by mortgage, judgment or other lien, unless he file the written consent of the owner or lienholder, that the premises may be used for a distillery subject to the provisions of law, and stipulating that the United States shall have priority for taxes and penalties, and that should the premises, or any part thereof, be forfeited, that the title shall vest in the United States free of the lien. This provision is for the benefit of the government, and the sureties cannot be discharged from their obligation in the bond by showing that the premises were incumbered when the distiller commenced business. 3

The Lot, or Tract of Land, is that used in connection with the distillery to facilitate the carrying on of the business and conducive to that end. Where the distillery stood in a tract of one hundred and thirty acres, it contained a vineyard of grapes, a pasture lot, a barley field and mountainous and wooded land uncultivated. In the survey a tract of a few acres was marked off adjacent to the distillery, on which stood the buildings, the wine sheds and tanks. This tract on the west was separated from the barley field by a road; on the north it was bounded by a road near a brook, separating it from the barley field; on the east it was separated from the pasture field by a fence; and on the south it was bounded by the exterior boundaries of the farm. This lot, thus marked off on the survey, and distinct from the farm, was the lot or tract of land, in the sense of the statute, which must be unincumbered, and is subject to forfeiture."

1 United States v. Garlinghouse, 11 Int. Rev. Rec. 139; Davidge & Kimball, Int. Rev. Laws, p. 353.

R. S. U. S. § 3262.

3 Osborne v. United States, 19 Wall. 227.

4 United States ". Spreckens, 7 Sawyer, 84.

4. Plan of Distillery.-The distiller must make out, under the direction of the collector, an accurate plan and description of the distillery and the distilling apparatus. It is to show distinctly, (a) the location of every still, boiler, doubler, worm-tub and receiving cistern; (b) the course and construction of all fixed pipes used, or to be used, in the distillery, and of every branch and every cock or joint thereof, and every valve; (c) every place, vessel, tub, or utensil, from and to which the fixed pipe leads, or with which it communicates; (d) the number and location, and cubic contents, of every still, mash-tub and fermenting tub; (e) the cubic contents of every cistern; (f) and the color of each fixed pipe. The accuracy of the plan and description is to be verified by the collector, the draughtsman and distiller; how, the statute does not direct, but it should be by an actual inspection of the premises, and their approval of its correctness should be in writing. After filing the plan, no alteration is to be made without the consent of the collector, and the alteration, when made, must be indicated on the plan, or by a supplemental plan, with a reference thereto in the original. The plan must be in triplicate; one copy is to be kept in some conspicuous place in the distillery, one is kept by the collector, and the other is transmitted to the commissioner.1

5. The Survey.-This is made by the collector and an assistant designated by the commissioner. Its object is to estimate and determine the spirit-producing capacity of the distillery for a day of twenty-four hours. This estimate is made upon the basis that fortyfive gallons of mash, or beer, brewed or fermented from grain, represents not less than one bushel of grain, and that seven gallons represents not less than one gallon of molasses, unless it be a sour-mash distillery, when the estimate is made on the basis that sixty gallons of beer, brewed or fermented from grain, represents one bushel of grain.

A written report of the survey is made in triplicate, one copy for the distiller, one for the collector and one is transmitted to the commissioner. If the commissioner thinks the survey incorrect, or that it needs revision, he may direct the collector to make a new survey, which is to be made in the same manner as the first, and the report is to be disposed of in the same way. This survey, the first, or any subsequent one, takes effect from the time of its delivery to the distiller.2

Conditions Precedent.-The foregoing five steps are all to be taken, and all their requirements are to be fully complied with before

'R. S. U. S. § 3263.

R. S. U. S. § 3264; Peabody v. Stark, 16 Wall. 240.