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Statement of the Case.

one who does not permit or connive at the illicit distilling, and the mortgagor, upon a subsequent breach of condition of the mortgage, makes a quitclaim deed to the mortgagee, the forfeiture of the land, as well as of trade fixtures annexed to it for a lawful purpose before the setting up of the still, is of the equity of redemption only.

THIS was an information, filed November 18, 1884, under $$ 3258 and 3305 of the Revised Statutes, and § 16 of the act of February 8, 1875, c. 36, (the material parts of which are printed in the margin,1) for the forfeiture of property particularly described in the information, and seized by the collector of internal revenue on November 14, 1884, and including: 1st. All the right, title and interest of Thomas Dixon, Eli B. Bellows

1 By Rev. Stat. § 3258, "every person having in his possession or custody, or under his control, any still or distilling apparatus set up, shall register the same with the collector of the district in which it is." "Stills and distilling apparatus shall be registered immediately upon their being set up. Every still or distilling apparatus not so registered, together with all personal property in the possession or custody or under the control of such person, and found in the building, or in any yard or inclosure connected with the building in which the same may be set up, shall be forfeited," and he shall be punished by fine and imprisonment.

By the act of February 8, 1875, c. 36, § 16, (substantially reënacting Rev. Stat. § 3281,) any person "who shall carry on the business of a distiller without having given bond as required by law, or who shall engage in or carry on the business of a distiller with intent to defraud the United States of the tax on the spirits distilled by him, or any part thereof," shall be fined and imprisoned. "And all distilled spirits or wines, and all stills or other apparatus, fit or intended to be used for the distillation or rectification of spirits, or for the compounding of liquors, owned by such person, wherever found; and all distilled spirits or wines and personal property, found in the distillery or rectifying establishment, or in any building, room, yard or inclosure connected therewith, and used with or constituting a part of the premises; and all the right, title, and interest of such person in the lot or tract of land on which such distillery is situated; and all right, title, and interest therein of every person who knowingly has suffered or permitted the business of a distiller to be there carried on, or has connived at the same;" shall be forfeited to the United States. 18 Stat. 310.

By Rev. Stat. § 3305, every distiller who omits to keep books in the form prescribed by the Commissioner of Internal Revenue shall be punished by fine and imprisonment, and "the distillery, distilling apparatus, and the lot or tract of land on which it stands, and all personal property on said premises used in the business there carried on, shall be forfeited to the United States."

Statement of the Case.

and William Stone in a lot of land in the city of Lawrence, with the buildings thereon. 2d. A copper still, a boiler and engine, a pump, vats and tanks, and other machinery and fixtures. 3d. A number of butts, a quantity of malt and hops, two horses and wagons and harnesses, and other personal property.

Joseph Stowell filed a claim for the real estate, the machinery and fixtures, (except the still,) the butts, and the malt and hops; and Thomas Bevington filed a claim for the horses, wagons and harnesses.

A decree was entered against the property not claimed; and upon a trial in the District Court between the United States and the claimants the only evidence introduced was an agreement in writing, signed by the counsel of all the parties, that certain facts were true, which was, in substance, as follows:

For some time before and until the seizure, Dixon carried on the business of a brewer on the premises, which consisted of a three-story frame building and adjoining sheds with doors between, and a yard connected therewith. The requirements of the internal revenue laws concerning breweries were complied with. In the latter part of September, 1884, Stone and Bellows, with Dixon's knowledge and consent, set up in the third story of the principal building (which story was not used in the brewing business, except as the large tanks used in brewing reached up into it) a copper still, which remained in position and in proper condition for use until November 9, 1884, and with which, during that time, two hogsheads and one barrel of rum were made from molasses. The still was not registered as required by law; no bond therefor was given; no government book was kept; the still was run with intent to defraud the United States of the tax on the spirits distilled, and the United States were defrauded of that tax. It did not appear that the sheds were in any way used in connection with the distillery. Dixon continued to carry on his business as a brewer while the still was being used, and on November 10 and 11 took down and removed the still.

There were on the premises a large boiler set in brick, a

Statement of the Case.

small engine, a small pump, and large vats and tanks, which the claimants alleged to be real estate, but which the United States asserted to be fixtures. It was admitted that a part or all of them would be trade fixtures as between landlord and tenant; that part or all of them were apparatus used in the brewery, and such as might properly be in the brewery; and that part or all of them were used as apparatus for the illicit distilling, and were fit to be used in connection with the still.

At the times of the illicit distilling and of the seizure, all these fixtures and the still, as well as all the personal property seized, were in Dixon's possession and custody and under his control, and they were found in the brewery, sheds and yard. Neither of the claimants knew until after the seizure that a still had been set up on the premises.

On June 11, 1883, Dixon conveyed the real estate to Stowell by a mortgage deed, duly recorded, subject to a prior mortgage of $1500, to secure a debt of $2500. On October 13, 1884, upon a breach of condition of this mortgage, Stowell, instead of foreclosing it, took from Dixon a quitclaim deed of the premises, the consideration named in which was $8000.

On June 5, 1884, Stowell took a bill of sale from Dixon of the butts, as security for endorsing a note for $350, which went to protest, and was paid by him on November 10, 1884. At the time of that bill of sale, the butts were pointed out by Dixon to Stowell as those which he was to have, but they remained in Dixon's possession.

On November 8, 1884, Stowell took a bill of sale of part of the malt and hops, as security for endorsing a note for $100 payable in ten days, and paid that note also after it had been duly protested. No delivery was ever made of the malt and hops. Neither of those bills of sale was ever recorded.

On November 11, 1884, a bill of sale of the horses, wagons and harness was executed and delivered by Dixon to Bevington, as security for a loan of $700, which was never paid. This bill of sale was recorded in the city clerk's office on November 18, 1884. The property so conveyed to Bevington was kept on a farm of Dixon's at North Andover, and was used in the business of the brewery, and seized at the brewery.

Argument for Defendants in Error.

At the time of the sale, Dixon pointed it out to Bevington, and said that he delivered it, and Bevington appointed Dixon's son as nominal keeper, but never otherwise took possession of it, and it remained under the control of Dixon, and was used by him.

Upon these facts the District Court ruled that the information could not be maintained against the property claimed by Stowell and Bevington, and adjudged that it be dismissed as to that property. The United States alleged exceptions, and, upon the affirmance by the Circuit Court of the judgment of the District Court, sued out this writ of error.

Mr. Solicitor General and Mr. Alphonso Hart, Solicitor of Internal Revenue, for the plaintiffs in error, cited: Dobbins's Distillery v. United States, 96 U. S. 395, 399; United States v. 1960 Bags of Coffee, 8 Cranch, 398, 405; United States v. Brigantine Mars, 8 Cranch, 417; Gelston v. Hoyt, 3 Wheat. 246, 311; Wood v. United States, 16 Pet. 342, 362; Caldwell v. United States, 8 How. 366; Thatcher's Distilled Spirits, 103 U. S. 679; 16 Opinions Attys. Gen. 41; United States v. 7 Barrels Distilled Oil, 6 Blatchford, 174; United States v. 56 Barrels Whiskey, 1 Abbott (U. S.) 93; S. C. 4 Int. Rev. Rec. 106; United States v. Whiskey, 11 Int. Rev. Rec. 109; United States v. 100 Barrels Spirits, 1 Dillon, 49, 57; S. C. 12 Int. Rev. Rec. 153; S. C. (sub nom. Henderson's Distilled Spirits) 14 Wall. 44; United States v. Distillery at Spring Valley, 11 Blatchford, 255; United States v. 76,125 Cigars, 18 Fed. Rep. 147; Taylor v. United States, 3 How. 197; Cliquot's Champagne, 3 Wall. 114; United States v. All the Distilled Spirits, 2 Ben. 486.

Mr. Edgar J. Sherman and Mr. Charles U. Bell for defendants in error.

The only material part of the record is the agreed facts, by which it appears that neither of the claimants knew that an illicit business was carried on in the premises, and that a legal business was ostensibly and actually carried on there.

Argument for Defendants in Error.

The court must find that these claimants were innocent, not only of any wrongful intent, but even of negligence or blame of any kind. The question then to be argued is whether the property of a person innocent of any charge or suspicion of crime or negligence is to be forfeited, and he thereby punished, because a third person has committed an offence. To the consideration of this question we invite the attention of the court.

I. Penal laws are to be construed strictly. 1 Bl. Com. 91; Margate Pier Co. v. Hannam, 3 B. & Ald. 266; Edwards v. Dick, 4 B. & Ald. 212; Green v. Kemp, 13 Mass. 515; S. C. 7 Am. Dec. 169; Reed v. Davis, 8 Pick. 513; Caledonian Railway v. North British Railway, 6 App. Cas. 114, 122; Walton, Ex parte, 17 Ch. D. 746; Jackson v. Collins, 3 Cowen, 89, 96; People v. Utica Ins. Co., 15 Johns. 358, 380; S. C. 8 Am. Dec. 243. Especially forfeitures are not favored. Hubbard v. Johnstone, 3 Taunton, 177; Adams v. Bancroft, 3 Sumner, 384.

II. Forfeiture is a punishment, and therefore, if a man who is wholly innocent can ever be punished for the crime of another, it must require language absolutely unequivocal before the court will so construe a statute. The cases we have cited show how strong the language must be. The language of the law and the intent of the law must clearly coincide in requiring such a construction. All the cases assume that in order to subject property to a forfeiture, the owner must himself have violated the law or must knowingly have suffered the property to go into possession of and control of some other person engaged in the regulated business. That is, if he either himself violates the law or knowing that another is violating the law permits him to have the use of his property in the unlawful business, or even permits him to have the use of his property in a business which is lawful, only if it be lawfully conducted, he may forfeit the property. There must be some degree of blame on the owner of the property; for property has no guilty character except as connected with persons who are chargeable with responsibility or blame. If the owner is absolutely innocent the property cannot be forfeited. The mere accident of its situation cannot give it a

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