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· Jackson ex dem. Havens v. Sprague.

To retain this and reject the other parts that are repugnant to it, the description would be left imperfect and unintelligible.

It is worthy of remark that Craigie is one of the grantees in the one hundred thousand acre tract; and if the location of that, as laid down on the diagram, has been with his assent, it goes very far to conclude him, as to the location of the grant to himself alone. It has been urged, that as there was no actual survey, the quantity of land was the material part of the description, and that such location ought to be made as to embrace this quantity. The mere fact of no survey having been made, cannot change the settled rules of interpretation. Where metes and bounds are given, which can be satisfactorily ascertained, they will control the effect and operation of a deed, without regard to quantity. It was no doubt the understanding and expectation of the parties, that thirty-three thousand seven hundred and fifty acres of land were conveyed by the deed. And in all cases where quantity is mentioned, there is the like understanding ; but this cannot control the construction. The intention is to be collected from the deed, and the language of the parties must be understood according to the settled rules of interpretation.

But if we were to travel out of the deed to ascertain the intention of the parties, as to the location, it is very evident it would not support the plaintiff's construction; for it was clearly understood that the Craigie tract was to be located directly south of the one hundred thousand acre tract, and to be of the same width. The diagram contained in the margin of the deed to Cottinger as set out in the special verdict, is a strong confirmation of this, showing the relative situation of these several tracts.

The remedy in this, as in all other cases where there is a breach of the covenants in a deed, must be for compensation in damages, especially if recourse is had to a Court of Law. This case is not to be distinguished from that of Jackson

Jackson ex dem. Havens v. Sprague.

ex dem. Craigie v. Wilkinson, a decided in the Supreme Court of this state, in which a construction and location is given to the grant now in question. This being the direct and only point before that Court, the decision would be entitled to great weight, if not of controlling influence, even if the point admitted of doubt, in order to preserve harmony of construction in relation to the same title. But it is not a question upon which I entertain the least doubt or hesitation.

The judgment of the District Court is accordingly affirmed.

T. A. Emmet for the plaintiff.
S. Jones for the defendant.

a 17 John. 146.

CIRCUIT COURT OF THE UNITED STATES.

· NEW-YORK, APRIL TERM, 1826, AT NEW-YORK.

BEFORE

S Hoe. SMITH THOMPSON, Associate Justice of the Supreme

Court.
Hon. WILLIAM P. VAN NESS, District Judge.

651 CHESTS OF TEA v. Tee UNITED STATES.

The spirit of the revenue laws is, not to create a forfeiture of property, except

for acts of the owner attended with fraud, misconduct, or negligence. He is not to suffer for the fraud, misconduct, or negligence of the revenue offi

cers, in which he does not participate. Spirits, wines, and teas are not subject to seizure, under the 43d section of the

collection law, which declares, that "if any chest, &c. shall be found in the possession of any person, unaccompanied with such marks and certificates, it shall be presumptive evidence that the same is liable to forfeiture," unless

the certificates and marks are both wanting. " Possession of any person," as used in this section, means the possession of

the purchaser, to whom the certificates are required to be delivered on a sale,

and not the possession of a wrong doer. The collection law is adapted to a regular and usual course of business, and

extraordinary cases where a compliance with its letter is impracticable, do

pot come within its sense and meaning. The information alleged, that the teas were unaccompanied by marks and cer

tificates; but the proof was, that the certificates only were wanting: Held,

that the averment was unsupported by proof. And the necessity of this allegation shows, that the true construction of the act

is, that both must be wanting.

651 Chests of Tea v. United States.

The want of marks and certificates, and not the illegal importation or non-pay

ment of duties, is the specific cause of forfeiture under this section. And this is evident, from its not being necessary to allege in the information,

that the teas were illegally imported, or the duties unpaid, but only that they were unaccompanied with marks and certificates. So of the other provisions of the act; their object is to guard against illegal im

portation and the non-payment of duties; but the forfeiture which they create is incurred only by a violation of the special regulations which the law has

provided as guards and checks. The' marks and certificates, being evidence only of a lawful importation, the

want of them affords no presumption of the non-payment of duties. Impolicy of allowing a forfeiture where it is to be the consequence of the fraud

or negligence of such revenue officers, as might entitle themselves to a share

of it. The general bond of the importer for duties op teas, accompanied with a depo.

site of the teas, as provided for by the 62d section of the collection law, is a securing of the duties, within the meaniog and true interpretation of the 43d

section. And if this were not such a securing of the duties, the teas could not have been

landed. A deposite, in all cases under this act, is in effect a pledge, and in lieu of the

personal sureties dispensed with, unless specially declared to be other

wise. Whether, if government regain the possession of teas, irregularly obtained from

their keeping without the payment of duties, they can enforce their lien for the duties, or how long such lien continues after the teas have got into circu.

lation in the market? Quere. A forfeiture for the embezzlement of wines, &c. under the 5th section of the act

of April, 20, 1818, is incurred only by the act of the owner, and not of a mere stranger, or the inspectors of the revenue. But the provisions of this act have no application to a case arising under the 43d section of the collection law.

ERROR to the District Court for the Southern District of New-York.

was

This was an information, under the 43d section of the collection law, against 651 chests Hyson Skin Tea, for being found unaceompanied with the marks and certificates required by law.

651 Chests of Tea v. United States,

At the trial in the Court below, the jury found a special verdict, upon which judgment of condemnation was entered, and a writ of error brought for its reversal,

The information alleged, that the teas in question were, on the 1st day of July, 1825, imported from China, in the ship Benjamin Rush, at Philadelphia, and were unladen without having been entered and without any permit, and that the duties had not been paid or secured to be paid.

That the said teas, being subject to the payment of duties, were found concealed in a store in Pearl-street, New York, unaccompanied with the marks and certificates prescribed by law, the duties not having been paid or secured to be paid.

That the said teas were found in a store in Pearl-street, in the possession of Smith and Nicoll, unaccompanied by such marks and certificates as are prescribed by law, the duties not having been paid or secured to be paid.

The claim of Joshua Lippincott, William Lippincott, and Benjamin W. Richards, set forth, that they were merchants of Philadelphia, in the auction and commission business, and that the teas in question were their property : That said teas were imported at the time and place stated in the information by Edward Thompson, in his ship the Benjamin Rush, and were duly entered and permits obtained to land the same, and were thereupon duly landed and inspected, weighed, marked, and numbered by the proper officers : That said Thompson gave his bond to the Collector for double the amount of duties due upon the teas, conditioned for the payment of the duties in two years thereafter; and the said teas were thereupon, by an agreement with the Collector, at the risk of Thompson, deposited and stored in a custom-house store, upon which were affixed two locks, the key of one of which was given to Thompson, and of the other was taken by the Inspector; and that all the before-mentioned acts were done as the law di

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