Page:Federal Reporter, 1st Series, Volume 8.djvu/501

UNITED STATES V. NINBTY' DEMIJOHNS OF BUM. 487 �to a forfaiture. If it fails to do this, it is the duty of tHe court to dis- miss it, whether issue is joined or net. �The libel in this case fails to aver an intent to defraud the United States. It was, therefore, fatally defective, and could' not support a decree of forfeiture. It was properly dismisised. But, as I eonstrue the statute on which the libel is based, no violation of the law whatever, is charged. Section 2504, schedule D, of the Revised Stat- utes, on -which the libel is predicated, declares : �"And wines, brandy, and other spirituous liquors iraported in bottles shall be packed in packages containing not less than" one dozen bottles in each pack- age, and all such bottles shall pay an additional duty of three cents for each bottle." �The only way in which this provision of the la-wcan be made appli- cable to the facta charged in the libel, ia by assuming that a demi- john containing over four gallons is a bottle, within the meaning of the law. That is not what is understood by a bottle in common par- lance, nor, in my judgment, what the statute means by it. A demi- john is a glass vessel with a large body and small neck, enclosed in wicker-work. That the statute does not include four-gallon demi- johris under the term bottles, is clear; because, if not impossible, it would be exceedingly inconvenient and cumbersome to pack not less than one dozen such demijohns in one package, as the statute requires to be done. �There is no provision of the statute forbidding the importation of liquor in demijohns. Having provided^ for the duty npon wines im- ported in casks and bottles, and spirituous liquors imported in bottles, the statute imposes as a duty on "brandy and other spirits manufac- tured or distilled from grain or other materials, and not otherwise provided for, two dollars per proof gallon." This would clearly in- clude spirits imported in demijohns. �My conclusion is, therefore, that the importation of rum in four- gallon demijohns, and the failure of the importer to pack his four- gallon demijohns in packages of not less than one dozen in each package, was not a violation of the provisions of schedule D, § 2504, of the Revised Statutes, and the libel does not set up any ground of forfeiture, and on that account was properly dismissed. If there had been a failure to observe the provisions of section 2504, I am of opinion that the goods imported would have been liable to forfeiture to the United States by virtue of section 3082 of the Revised Statutes, which declares that "if any person shall fraudulently or knowingly import * » * into the United States * * * any merchandise ��� �