Janney V. Columbian fore this Court were transmitted to the under- 1825. writers, and actually in a former trial between the same parties, made evidence to prove the fact which they ascertain. It is then too late Ins. Co. for the plaintiffs to dispute the validity or verity of the act of condemnation. They have recognised the jurisdiction of the tribunal they appealed to, to obtain the survey, as sufficient also to make the condemnation, and must be held to abide by it as such. All further and other investigation in a more competent tribunal, if there was such, was rendered impossible by their act. It only remains, then, to determine, whether the facts ascertained by the survey are such as bring the case within the terms of the stipulation. We are of opinion they are. It would be difficult to find a shade of difference in this respect, between the present case and that of Dorr. The terms of this certificate are, "we found the timbers and bottom plank so much decayed, that we are unanimously of opinion her repairs would cost more than she would be worth afterwards; and that it would be for the interest of all concerned she should be condemned as unworthy of repairs on that ground. We did, therefore, condemn her as not seaworthy, and as unworthy of repairs." Now it cannot be questioned that the ground of condemnation here stated does not stand single and unconnected with the estimated cost of repairs. But does this vary the case? We are of opinion it does not, since the condemnation of a vessel, on account of decay, can 1825. Janney Columbian as, Co. never, in its nature, stand single and unconnected with the expense of repairs. It is the common place to which the question of condemnation must always have reference. It is hardly possible to conceive a case where a survey would be called in which a vessel might not be repaired or renovated, and still leave enough of the hull to maintain her identity. A state of hopeless and absolute decay, therefore, is never in the contemplation of the contract. And whether expressed or not, the consideration whether the value when repaired would exceed the expense, invariably enters into the decision of surveyors upon a question of seaworthiness. As, then, her being decayed, so as to be unworthy of repairs, is equivalent to, and in fact the technical meaning of unseaworthiness, we are of opinion, that the certificate brings the case within the words of the stipulation. It follows, that the Court were correct in refusing the evidence offered by the plaintiff. Judgment affirmed. [INSTANCE COURT.] SIXTY PIPES OF BRANDY. KENNEDY & MAITLAND, Claimants. Under the Duty Act of 1799, c. 126. [cxxvi.] s. 43. it is no cause of forfeiture, that the casks, which are marked and accompanied with the certificates required by the act, contain distilled spirits which have not been imported into the United States, or a mixture of domestic with foreign spirits; the object of the act being the security of the revenue, without interfering with those mercantile devices which look only to individual profit without defrauding the govern ment. 1825. 60 Pipes of Brandy. APPEAL from the Circuit Court of Massachusetts. This cause was argued by Mr. Emmet, for the March 14th. appellants and claimants, and by Mr. Webster, for the respondents. Mr. Justice JOHNSON delivered the opinion of March 18the the Court. The libel in this case contains two allegations, and the amended or supplemental libel contains a third. The first is, that these sixty pipes of brandy were imported from abroad, and landed in the port of Boston without a permit. The second, that they were not accompanied with the marks and certificates required by law. And the third, 1825. that they were imported from abroad, and landed in the port of New-York without a permit. 60 Pipes of Brandy. To the first and third of these allegations, the record furnishes no evidence, nor, in fact, is it contended, that the article seized is to be visited by the penalties inflicted for those offences, otherwise than as an incident to the cause of forfeiture contained in the second allegation. The passage of the law on which the libellants claim the forfeiture, is in these words; "and if any casks, &c. containing distilled spirits, &c. which, by the foregoing provisions, ought to be marked and accompanied with certificates, shall be found in possession of any person, unaccompanied with such marks and certificates, it shall be presumptive evidence that the same are liable to forfeiture, and it shall be lawful for any officer of the Customs, or of Inspection, to seize them as forfeited; and if, upon the trial, in consequence of such seizure, the owner or claimant of the spirits, &c. seized, shall not prove that they were imported into the United States according to law, and the duties thereupon paid or secured, they shall be adjudged to be forfeited." The fact that these casks were accompanied with certificates is not questioned, nor that the certificates accompanying them were those which issued from the custom-house upon those identical casks. But, it is contended, that the identity of the spirits is destroyed by a large admixture of other spirits; and that, by the true construction of the law, such a change falsifies the certificate, and the casks are no longer, in the sense of 60 Pipes of the law," accompanied by certificates." And, 1825. further, that such a change justified the seizure, and wherever the seizure is just, the onus pro- Brandy. bandi is thrown upon the claimant, and he is held to comply strictly with the words of the law, and prove the spirits which they contain to have been "imported according to law, and the duties thereon paid, or secured to be paid." That such a construction of the law is carrying its penal effects beyond the literal meaning of its terms, we understand no one to deny. The words are," if any casks containing distilled spirits, which ought to be marked and accompanied with certificates," &c. That these words must necessarily be confined to the cask, and cannot extend to its contents, results, we think, from requiring the article to be marked, as well as accompanied with the certificate; a requisition, absurd in terms, if applied to the distilled spirits contained in the casks. And although the term, "the same," used in the member of the sentence which imposes the forfeiture, might, with grammatical correctness, be applied exclusively to the cask, and thereby produce a greater absurdity, yet it The constituents of the offence here intended to be visited on the claimant, obviously are, |