omission or commission of the act by any other section of the statute as to internal revenue.

The statute does not require that the acts of omission or commission should be done with intent to defraud the revenue. The test is whether they are done knowingly and willfully, for every one is presumed to know what the law demands at his hands. It does not apply to an act for which there is a penalty under other sections, as for instance the book entries required of rectifiers and wholesale dealers under § 45 of the act of 1868, where there is a specific penalty. But it does apply to a failure to cause packages of distilled spirits to be gauged and stamped under § 25 of the act of 1868. The law requires it, and it is the duty of the manufacturer to have it done, and if he omits it he does it knowingly and willfully, as he also does if he has his cistern so arranged that he has free access to the spirits while passing from the outlet of the worm to the cistern, for he well knows that this is prohibited.

§ 177. Seizure and Proceedings for a Forfeiture-Proceedings to Enforce Fines and Imprisonment-Penalty for Failure to use Stamps. Forfeitures are enforced by proceedings in rem against the property liable thereto. If the property is seized on navigable waters, the case belongs to the instance side of the court; if it is made on land the suit is one at common law, and the claimants are entitled to a jury trial. In either case the suit is commenced by filing an information in the nature of a libel in admiralty. The suit is in rem against the property, and no notice or summons is issued against the owners. The property is supposed to be in the custody of the officers making the seizure. The jurisdiction to proceed by information against the property for condemnation under the revenue laws depends on possession, actual or constructive, for where the property is allowed to be bailed, the bond is a substitute for the property. When the bond is given the parties executing it are entitled to notice of the proceedings. In the case cited, the goods were seized before the information was filed, and under § 9 of the act of 1866, bond was given and the goods surrendered in the mode prescribed under that section, but no

'A Quantity of Distilled Spirits, 3 Ben. 552; United States v. McKein, 2 Am. Law Times, 153.

2 United States v. Forty-eight hundred gallons, 4 Ben. 471.

3 United States v. Fourteen hundred and twelve Gallons of Distilled Spirits, 10 Blatch.

C. C. 428; United States v. One hundred and thirty-three Casks of Distilled Spirits, 1 Sawyer, 188.

'United States v. Ninety-two Barrels of Rectified Spirits, 8 Blatch. C. C. 480; s. c. 5 Ben. 323.

notice of the proceedings was given to the parties executing the bond. After this there was a re-seizure of the property, and a monition founded on the information theretofore filed was issued to the marshal, who seized the property, and on application to court it was released under bond as property liable to perish. It was held that the court had no jurisdiction of the case under the first seizure, no notice having been given to those executing the bond, so as to give constructive possession; and as to the second seizure, there was no information founded on that seizure, but if a new information had been filed under the second seizure, it would have been good.

At common law any person could seize for a forfeiture. The provisions of the internal revenue laws authorize any officer of the revenue to make seizure. The property seized remains in possession of the officer seizing, until process issues from the court to the marshal, founded on the information filed. When seizures are made under § 3453, it is provided that the collector may, at his option, deliver the property to the marshal of the district, until he shall obtain possession by process of law. Where the goods seized are, in opinion of the collector, of the value of $500, or under, he is to have them appraised, and give notice of the seizure in a newspaper, for three weeks, describing the articles, and calling upon the owner to claim them in thirty days from the date of the first publication of the notice. If the claimant appears and files his claim with the collector, stating his interest, the property is released on his entering into bond in the penalty of $250, conditioned to pay all costs and expenses of the proceeding to obtain condemnation. If no claim is filed, the collector sells upon ten days' notice, and deposits the net proceeds of sale in the treasury.2

The information must describe the property with reasonable certainty, and as to the offense creating the forfeiture, every fact and circumstance material in law to show that the offense has been committed, must be set forth with precision, clearness and reasonable certainty. The question on the merits does not depend upon the state of things existing at the time of the seizure, but on the fact of a forfeiture incurred prior to that time. It is enough if any cause of forfeiture set forth in the information is established by the evidence. Where articles are forfeited by reason of their guilty association, the

R. S. U. S. § 3460.

1 R. S. U. S. § 3458. United States v. Distillery, 4 Biss. 26: Brig Caroline v. United States, 7 Cranch, 496; The Schooner Hoppet & Cargo v. United States, 7 Cranch, 389; Conkling's Admiralty, 516.

information must show that they were in the position required by the statute to constitute that guilty association.1

There may be several counts in the information stating causes of forfeiture under different sections of the statute, and proof of either will authorize a decree of condemnation. But the court, at the beginning of the trial, if requested, will make an order requiring the attorney for the United States to elect on which of the provisions of the statute he will insist for a forfeiture.3

If the property seized is perishable, it may be released on bond being given as required by § 3459, in an amount equal to the appraised value, conditioned to abide the final order or decree of the court having cognizance of the case, and pay the amount of the appraised value as may be directed by the court. And where the property is not perishable, it may be released on bond in the discretion of the court, and on such conditions as the court may impose. When property is thus released, it may be sold, and the sale will vest a good title in the purchaser, but the court may order its re-seizure, where the bond is worthless, where there is fraud in giving the bond, or where justice will be promoted by such a course.5 Where bond is taken, the parties executing it are entitled to notice of the proceedings for condemnation; it is to be given by personal service or publication, and in such manner and form as the court may direct. This gives the court the same jurisdiction as if the property had actually been seized by its marshal under process issued on the information filed. If the court fixes on ten days as the length of time for the notice to be given, it is sufficient, although the rules of the court require twenty days in such cases.6

Under the act of 1867, § 25, when a seizure was made, proceedings to enforce it were required to be commenced within twenty days, and this limit was not repealed by the act of 1868. At present there seems to be no limit to the time except the general limitation to a prosecution for any penalty or forfeiture arising under the laws of the United States, which is five years from the time when the penalty or forfeiture accrued, provided the person or

1 United States v. Hogsheads of Tobacco, 2 Bond, 187.

2 The Distilled Spirits, 11 Wall. 356; Henderson's Distilled Spirits, 14 Wall. 44.

3 United States v. Eight hundred Caddies of Tobacco, 2 Bond, 305.

4 A Lot of Leaf Tobacco, 2 Ben. 76; United States v. Adler & Furst, 3 Dillon, 285;

e. c. 21 Int. Rev. Rec. 391; United States v. Two Tons of Coal, 5 Blatch. C. C. 386.

5 United States v. Mackay, 2 Dillon, 299.

United States v. Adler & Furst, 3 Dillon, 285; s. c. 21 Int. Rev. Rec. 391; R. S. U. S. § 3459.

'Henderson's Tobacco, 11 Wall. 652.

property was within the United States so that process could be served.1

The proceedings are in rem against the property, and vest an absolute title in the purchaser at the sale, under the decree; but it seems that if the property condemned and sold was not liable to forfeiture, no title passes. Where a barge was seized under § 48 of the act of 1864, as one of the "tools, implements, or personal property liable to forfeiture for guilty association, or as an instrument of the fraud intended on the revenue, no title passed to the purchaser at the sale, because it was not liable to forfeiture.2

At common law, if a seizure was made for a forfeiture, and the decree was in favor of the claimant, it was considered that the decree showed the seizure to be illegal, and the party making it was liable in trespass. At an early day in the history of this country, it was provided, that the officers making seizures should not be liable, even where there was a decree for the claimant, if the court gave a certificate that there was probable cause for the seizure. There was a proviso to this statute, that the property seized should, after such judgment or decree be forthwith delivered to the claimant or his agent. It would appear to be a most reasonable construction, that unless the officer claiming the benefit of this statute, complied strictly with the proviso, he would not be entitled to the benefit, or in other words, unless the officer returned the property to its owner immediately after a decree in favor of the claimant, he would be liable. in trespass, just as he was before the statute, and it was so decided in the second circuit.3 In this case the marshal had taken possession of the property after the seizure, under the process of the court. On appeal to the Supreme Court, the decision below was reversed, the court holding that trespass could not be maintained against the officer making the seizure until a demand was made of him for its restoration." And it is further decided, that in such a case it is not the duty of the officer making the seizure to apply to the court for an order to have the property restored to the owner, but that the owner himself must make the application. A wrong has been done the party by an illegal seizure of his property; the statute, says that if there was probable cause for making the seizure, the party guilty of the wrong shall not be liable, if the property is forthwith returned to the claimant. Now the Supreme Court says that it is not the duty of the party committing the wrong, but of the party suffering the wrong

1 R. S. U. S. 1047.

3 Smith v. Averill, 7 Blatch. C. C. 29.

2 Tracy v. Corse, 58 N. Y. 143.

4 Averill v. Smith, 17 Wall. 82.

or injury to see that the property is forthwith returned. The statute protected the officer if he complied with a condition; the decision not only protects him without complying with the condition, but requires the party he has wronged to comply with the condition for him. The statute which is under consideration, contemplates that the owner shall assert his rights in the proceedings in rem, but he may elect, it is said, not to assert his rights in that suit, and may bring his action of trespass at once against the officer, thus testing in this mode the question of the legality of the se iz ure. Unless the seizure is lawful, the officer must respond in damages. The decision

just cited takes the view that the statute only bars the action against the officer for the detention of the property. This is not in accord with Averill v. Smith, nor the express words of the statute, which are that the officer "shall not be liable to action, suit or judgment on account of such seizure and prosecution."

Where the statute required distillers to use a particular patented meter, and to deposit with the collector the money to pay for the meters, to be transmitted to the patentee, the moneys were embezzled by the collector, and it was held the collector could not be sued by the distiller; he was a mere stakeholder who owed no duty to the distiller. He is the agent of the government, and the United States are liable for the deposits if they are not properly applied by its agents. If the government sees fit to have these deposits made with its officers, instead of allowing the distillers to deal directly with the manufacturer, it should be liable for the acts of its agents.*

Proceedings to Enforce Fines or Imprisonments.—For any of the offenses against the revenue laws, the offender may be proceeded aaginst by indictment of a grand jury. The indictment, however, is not essential, unless the offense be a capital, or otherwise infamous offense. Such an offense, by the express terms of the Constitution, requires the presentment or indictment of a grand jury. There are no offenses under the internal revenue laws where the punishment is capital. Whether there are any that are infamous, is not so easily determined. This expression is descriptive of an offense that subjects a person to an infamous punishment or prevents his being a witness. The fact that a party is liable to imprisonment in the penitentiary, does not bring the offense within the description. Where the statute

1 Cardinal v. Smith, 1 Deady, 197.

2 17 Wall. 82.

3 Nusbaum v. Emery, 3 Biss. 469. 4 Sausser v. United States, 9 Court of Claims, 338. Const. U. S. 4th Amendment.

United States v. Maxwell, 21 Int. Rev. Rec. 148; United States v. Shepard, 1 Abb. C. C. 431, cases on the subject collated by Dillon, J.