The United States v. Feigelstock. The judgment must be affirmed, with costs. George W. Cotterill, for the plaintiffs in error. Roger M. Sherman, (Assistant District Attorney,) for the defendants in error. THE UNITED STATES, PLAINTIFFS IN ERROR V8. ALOIS FEIGELSTOCK, CLAIMANT of 50 BARRELS of DISTILLED SPIRITS, DEFENDANT IN ERROR. Under § 3242, of the Revised Statutes, a person does not carry on the business of a wholesale liquor dealer without having paid the special tax as required by law, who, without having paid such special tax, sells, in quantities of not less than five wine gallons at one time, a single lot of spirits which he has taken for a debt. Under that clause of § 3281 of the Revised Statutes which provides for the forfeiture of distilled spirits, the forfeiture does not operate when the statute is violated, but only at the time of the seizure of the spirits or wines. (Before JOHNSON, J., Southern District of New York, September 15th, 1877.) JOHNSON, J. This case comes here upon a writ of error to the District Court, to review its judgment, in an information of forfeiture, given upon the verdict of a jury against the plaintiffs, by direction of the judge, at the trial. A bill of exceptions, taken by the United States, presents the questions on which a reversal is asked. The first arises upon the facts, that one Kingston was a creditor of the Binghams, who were distillers in Patoka, Indiana, for goods sold, and for services rendered, and for money lent by him to them; that the spirits seized were, on the 10th day of May, 1875, sold and transferred by the Binghams to Kingston, on account of that indebtedness; that Kingston assumed control of the spirits, VOL. XIV.-21 ❤ The United States v. Feigelstock. and procured them to be shipped from Patoka to the city of New York, and authorized Feigelstock, a wholesale liquor dealer, and the claimant, to sell the same on account of Kingston, in quantities of not less than five wine gallons at one time; and that Kingston did not pay the special tax payable, by the laws of the United States, by a wholesale liquor dealer. Upon these facts, it is claimed by the United States that the spirits seized were forfeited, under section 3242 of the Revised Statutes. But, the forfeitures created under that section are denounced against every person who carries on the business of a wholesale liquor dealer without having paid the special tax as required by law. This provision is found in chapter 3, of title 35, entitled "special taxes." Section 3232, which begins the chapter, enacts, that no person shall be engaged in, or earry on, any trade or business thereinafter mentioned, until he has paid a special tax therefor, in the manner thereinafter provided. Section 3244 provides, that "special taxes are imposed as follows: Fourth. Wholesale liquor dealers shall pay one hundred dollars. Every person who sells, or offers for sale, foreign or domestic distilled spirits, or wines, in quantities of not less than five gallons at the same time, shall be regarded as a wholesale liquor dealer." Taking the language of these sections together, it is plain, that those persons only are included who engage in, or carry on, a trade or business of liquor dealing, and that it does not apply to the case of an isolated sale. Even the definition of a wholesale liquor dealer, taken by itself, implies more than a single transaction-a trade or business of selling, as expressed in the other sections referred to. The case states a single transaction, in respect to a lot of spirits taken for debt, and that affords no ground to infer that this was in prosecution of any trade or business requiring the payment of a license under the statute. No other question is presented which seems to me to need consideration, except that which arises upon section 3281. The Binghams carried on business, as distillers, with intent to defraud the United States of the tax on the spirits distilled by them, or of some part thereof, and, at that time, were The United States v. Feigelstock. owners of the spirits seized, as to which no fraud or illegality appears. Before the seizure the spirits had been sold to Kingston for an existing debt, and Feigelstock had made an advance upon them, in good faith, and they had been removed, under Kingston's direction, from Indiana to New York, to be sold by Feigelstock on Kingston's accouut. The forfeiture denounced by the section in question is, that "all distilled spirits or wines, * owned by such person, wherever found," shall be forfeited to the United States. The question is, whether the forfeiture operates at the time when the statute is violated, as the plaintiffs contend, or at time of the seizure, as the claimant insists. * * * This question has been decided adversely to the United States by the District Court for the Southern District of New York, in the case now under review. A similar decision was made by the District Court of Maryland, in April, 1876, in United States v. 100 Barrels, and, upon writ of error to the Circuit Court of the United States for that District, the judgment was affirmed, (23 Int. Rev. Record, 10,) the Circuit Judge presiding. Under these circumstances, I think it suitable to follow those decisions without question; and I do so the more readily, because it leaves the case in a condition in which it may, if such is the pleasure of the United States, be reviewed with the least delay. Let the judgment be affirmed. Roger M. Sherman, (Assistant District Attorney,) for the plaintiffs in error. Waldemar J. Tuska, for the defendant in error. Montejo v. Owen. FRANCISCO J. MONTEJO AND OTHERS v8. THOMAS J. OWEN AND OTHERS. M. brought an action at law, in this Court, on a judgment recovered by him against O., in another Court. O., by answer, set up a variety of matters which were not defences at common law against the judgment, but which were claimed to give O. an equitable right to prevent the enforcement of the judgment. On demurrer to the answer: Held, that the demurrer must be sustained. Section 914 of the Revised Statutes of the United States does not authorize such an answer to be put in, in an action at law. (Before JOHNSON, J., Southern District of New York, September 15th, 1877.) JOHNSON, J. This case comes up on a demurrer by the plaintiffs to the answer of the defendants. The action is upon a judgment rendered by the Circuit Court of the United States for the District of Louisiana, in favor of the present plaintiffs against the present defendants. The answer sets up a variety of matters which are not defences at common law against the judgment, but which are claimed to give the defendants an equitable right to prevent the enforcement of the judgment. These matters the defendants insist are available to them as a defence in this suit, by force of section 914 of the Revised Statutes of the United States. That section prescribes, that, "the practice, pleadings, and forms and modes of proceeding, in civil causes, other than equity and admiralty causes, in the Circuit and District Courts, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time, in like causes, in the Courts of record of the State within which such Circuit or District Courts are held, any rule of Court to the contrary notwithstanding." It must be assumed, that, in a suit upon a judgment, brought in a Court of the State of New York, the defence set up in the answer in this suit would be available by way of answer, if sufficient in substance to entitle the party to relief against Montejo v. Owen. the judgment. Such is the known and established law of procedure in the State of New York, introduced by sections 69, 150 and 167 of its Code of Procedure. The first of these abolishes the distinction between actions at law and suits in equity, and the forms of all such actions and suits theretofore existing, and declares, that thereafter there shall be, in that State, but one form of action. The next section cited enacts, that the defendant may set forth, by answer, as many defences and counter-claims as he may have, whether they be such as had been theretofore legal or equitable, or both. The last section named enacts, that the plaintiff may unite in the same complaint several causes of action, whether they be such as had been theretofore denominated legal or equitable, or both, under certain specified conditions. These sections of the Code deal with claims legal and equitable, and defences legal and equitable, set up by answer, and counter-claims of both characters. In pursuance of the policy thus indicated, section 274 of such Code provides, that judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants, and it may determine the ultimate rights of the parties as between themselves, and it may grant to the defendant any affirmative relief to which he may be entitled. It is, of course, obvious, that this system, while it undertakes to provide for the means of administering indiscriminately legal and equitable remedies, in substance, founded upon legal and equitable rights, completely ignores all the former schemes of procedure founded on the recognition of their differences. Now, from the purview of section 914 of the United States Revised Statutes, which is already set forth, equity and admiralty causes are completely excluded, in terms. That section does not relate to them, except to effect such exclusion. The jurisprudence of the United States has recognized this dictinction in numerous cases, as one of substance, as well as of form and procedure. (Robinson v. Campbell, 3 Wheaton, 212; Bennett v. Butterworth, 11 How., 669; McFaul v. Ramsey, 20 How., 523; Jones v. McMasters, 20 How., 8, 22; Fenn v. Holme, 21 How., 481; Thompson v. |