LIBRARY

DOUGHERTY V. ALLEN, ASSESSOR, & ZULICK, COLLECTOR. IOI

hereafter, for the next, or any subsequent year beginning on the 1st of May, there can thus be an indictable default without previous assessment. For the decision of the present case, it

suffices that the enactment which increases the tax for the fraction of this current year expressly provides that the person "shall be again assessed and pay the amount of such increase." Under these words, there certainly can be no indictable default until after a reassessment. Whether upon a reassessment, every omission to pay the amount of increaseeven though not a wilful omission-becomes indictable immediately, without any possible exemption, and without the admissibility of any excuse whatever, is a question which I have not, as yet, had occasion fully to consider.

In this case there will be a new trial on the point reserved.

CIRCUIT COURT.

INTERNAL REVENUE.

JANUARY 7, 1867.

DOUGHERTY v. ALLEN, ASSESSOR, AND ZULICK,

COLLECTOR.

Practice as to issue to determine facts under bill to restrain proceedings under the internal revenue acts.

BILL IN EQUITY to restrain assessment, levy of tax, and forfeiture as for liability under the internal revenue laws.

The plaintiffs were manufacturers under a patented invention of their own, of brewing fluid, involving a process of distillation combined with other processes and the use of materials not used in the distillation of spirits. They claimed they were not within the provisions of the act of June 30, 1864, and its amendments, and were not, therefore, subject to assessment tax and forfeiture as insisted upon and threatened by the defendants. Pending the hearing upon the injunction the Court made the following order:

CADWALADER, J.

The Court having considered the affidavits and admissions at the several interlocutory hearings upon the application for an injunction, is of opinion that sufficient reason has been shown for awarding such an injunction as will suspend proceedings on the part of the local officers of the internal revenue service in order that the question hereinafter stated may be speedily determined in an action at law. The injunction for this purpose prayed in the bill is, therefore, awarded against the defendants to remain in force until further order, upon condition that on the filing, upon the law side of the Court, of a declaration in debt at the suit of the United States against the complainants or either of them for non-payment of any duty alleged to be due by him or them on distilled spirits, as of any past or present term, he or they shall forthwith appear thereto and plead that he or they is or are not indebted in manner and form therein alleged, and shall file with such plea an agreement that under the issue thus tendered the question triable shall be whether he has manufactured distilled spirits, and that for obtaining a jury to try such issue a writ of venire facias at his or their cost may forthwith issue and may be executed in the manner prescribed by the rule of the District Court of the district as to special writs of venire facias. And either party shall be at liberty to apply at any time or times to this Court for directions to speed or regulate the trial or for any other necessary and proper purpose. It is further provided that the proper local officers of the internal revenue service may at all convenient times enter the premises of the complainants for all necessary and proper purposes of inspection of the process of manufacture, etc.

DISTRICT COurt.

INTERNAL REVENUE.

MARCH 8, 1867.

IN RE EIGHTY-ONE BOXES OF CIGARS, ETC., LATELY IN THE POSSESSION OF JACOB NICHOLS.

In a sale of goods forfeited, the tare, by mistake, was not deducted, and the purchaser was required to pay for gross and not for nett weight. He was permitted to receive back the difference. The case was peculiar and is not a precedent.

INFORMATION against goods subject to duties under the internal revenue law of June 30, 1864, charging fraudulent sale and removal.

PETITION by purchaser at sale to recover back the amount paid, by mistake, for tare.

CADWALADER, J.

This case is altogether peculiar-I may say, singular. The decision will not be a precedent for any case that can probably occur hereafter.

The sale by the marshal was by weight, which was intended and understood by dealers in the article to be nett weight; and such dealers, according to the evidence, cannot have been mistaken as to the capacity of the packages. Through a mistake which the district-attorney and marshal admit to have been made, and concur in desiring to correct, the tare was not deducted, and the purchaser was required to pay for gross instead of net weight; and did so. He is not a dealer in the article. Had he been, the mistake would not have occurred; or would have been corrected before payment of the price. The delay in his application consequent upon delay in discovering the error has been explained satisfactorily. To grant his petition will, therefore, not be a precedent contrary to the rule that in judicial sales matters of this kind are at the buyer's risk.

A former case in which I corrected a similar error in the

price of a sale by quantity differed from this case inasmuch as there the buyer offered to give up the purchase.

Here it is, for reasons which have been established by proof, impossible for him to do so. But as it has been shown that the full market price, tare off, has been paid, this otherwise objectionable peculiarity of the case may be disregarded.

The petition is granted.

DISTRICT Court.

ADMIRALTY.

MARCH 13, 1867.

WEIDNER v. THE JANE J. SOUTHARD.

In cases of alleged purpresture, the Court will not pass upon the question collaterally in a salvage claim for wharfage, in the absence of any proceeding at the suit of the United States.

LIBEL for salvage.

CADWALADER, J.

This was the case of a vessel from Liverpool destined to Philadelphia icebound at Chester.

The claim of the libellant is, in effect, to charge full wharfage for all vessels which, in time of danger, use the piers of the United States at Chester, and require such an attachment to his intermediate wharf as many of them cannot but occasionally require.

Before the construction of his wharf, there were established fixtures which had, for a long time, been used on the river front for such intermediate attachment. The use of these fixtures had been gratuitous. They had been thus used with a latitude of extension with which, as to vessels in certain occasional positions the projection of the libellant's wharf may more or less interfere.

The argument for the respondent is that the wharf was an

unlawful construction as against the United States, and that consequently the assessment of the charge in question upon vessels using the pier is an extortion which ought not to be permitted. The wharf was apparently made under the authority of the wardens according to the laws of the State of Pennsylvania; and is therefore apparently a lawful structure except as against the United States. It may nevertheless be a purpresture as against the United States. If so, a court of equity might, in a proceeding at the suit of the United States, enjoin the libellant from collecting wharfage from vessels in distress using the Chester piers, or might otherwise prevent the projection of the wharf from impeding the gratuitous use by such vessels of the former fixtures on the river front, or of renewed fixtures adapted to the purpose.

But, in the absence of adverse intervention on the part of the United States, can I, in the present collateral proceeding, take any cognizance of the question of purpresture?

In this case, I do not think that I ought collaterally to decide the question. It is one which may depend upon executive or legislative option of the government of the United States to enforce its rights. This remark applies more or less to all cases of alleged purpresture. The present is the case of a de facto wharf which, as against the State of Pennsylvania, seems, as I have said to exist also de jure. The existence of the wharf de jure, as against the United States, or the existence of a pecuniary right of wharfage from vessels in distress using the government's piers, depends upon the exercise of the right of election of the United States to proceed as for a purpresture. This question is perhaps not one simply for decision by the law officers of the United States without instruction from the proper executive department.

It must be borne in mind that if the United States elect to proceed adversarily, the question of purpresture must be judicially decided without reference to any greater or less degree of benefit or detriment to navigation from the wharf. This may possibly present peculiar reasons for executive consideration, and certainly suggests a peculiar reason against my en