One Vaporizer, &c.

The Act of 1867, § 16 (14 U. S. Stat., p. 481), thus defines a distiller: "Every person, firm, or corporation who distills or manufactures spirits or alcohol, or who brews or makes mash, wort, or wash for distillation, or the production of spirits, shall be deemed a distiller; and the making or keeping, by any person, of grain, mash, wash, wort, or beer, prepared or fit for distillation, together with the possession by such person of a still, or other apparatus, capable of use for distilling upon the same premises, shall be deemed and taken as presumptive evidence that such person is a distiller."

Now, if the case rested simply upon the fact of the possession of the still, and the making of a mash fit for production of distilled spirits, the claimant might, perhaps, have been held to be a distiller of spirits, under this section of the Act.

But the presumption which, under the law, arises from the possession of a still and mash capable of being used for the production of spirit, is in this case, as it appears to me, repelled by the further fact, that neither the still, nor the mash, is used with intent to produce distilled spirits. This is clearly so, if the intent to be considered is the intent with which the apparatus, as a whole, is used; for it is conceded that the product of the apparatus, as a whole, is simply vinegar, which contains no alcohol; while, if the intent to be considered is the intent with which the still and mash alone, as separated from the rest, are used, it seems, also, to be clear that they cannot properly be said to be used to produce distilled spirits. The only use of this still and mash is to form the mixture which is contained in the chamber (M); but that mixture is not distilled spirits, or alcohol. It contains alcohol, it is true, but in such a combination that it cannot be obtained from it by any mechanical or chemical process, and the elements of the mixture are such, that the alcohol in it is, from the moment of its condensation into a fluid, in process of destruction, for

One Vaporizer, &c.

the vinegar and water in which the alcoholic vapor is condensed begins at once to act as a ferment, and oxidation of the alcohol accordingly then begins.

The mixture is neither the distilled spirits of commerce, nor is it of value as a merchantable article, nor can it be used for any purpose, except to make into vinegar.

Considered, then, in either aspect, either as a manufacturer of vinegar, or of the mixture which is produced in the chamber (M) of his apparatus, I am unable to see how the claimant can be held to be a manufacturer of distilled spirits or alcohol.

His process appears to be simply transferring alcohol by the action of heat, and in the form of vapor, from one mixture-the mash-where it is not taxable, to another mixture, from which it can be separated only by distillation, and where it is equally free from tax; the latter mixture being never distilled, but used and useful only to oxidize into vinegar, which is also free from tax.

The use of such a process does not, in my opinion, constitute the claimant a distiller of spirits within the meaning of the law.

Nor does the joint resolution of February 5, 1864 (14 Stat., p. 566), help the case of the Government. By that resolution, it is enacted that all productions of distillation which contain distilled spirits or alcohol, on which the tax imposed by law had not been paid, should be considered and taxed as distilled spirits.

But neither the vinegar which the claimant manufactures, nor the fluid which he produces in the chamber (M) of his apparatus, can be said to be a "product of distillation." Certainly, the vinegar and the water, which form the greater portion of the fluid in the chamber (M) are no product of distillation. To make the resolution applicable, the whole mixture which contains the alcohol, must be a product of distillation. To hold otherwise, and, under this resolution, consider every article containing

In the Matter of Cornelius Olcott, a Bankrupt.

distilled spirits, which has not paid the tax, as distilled spirits, would lead to strange results, especially when so little of the distilled spirits in use ever pays tax.

I have thus considered the case upon the evidence as it appears in the agreed statement of facts. I am not, under the admissions in this statement, at liberty to consider the question, whether the apparatus of the claimant is not, in some of its fixtures, a still which forms distilled spirits by condensation of alcoholic vapor upon a cold surface, and then conveys the same, in its ordinary fluid form, to the vinegar and water in the chamber (M). If such a fact were made to appear, it might materially alter the case; but upon this record no such fact appears. The judgment in the case, as the evidence stands, must accordingly be in favor of the claimant of the property.

MAY, 1868.

IN THE MATTER OF CORNELIUS OLCOTT, A BANKRUPT.

INJUNCTION. EXECUTION.

Where an execution had been issued on a judgment against a bankrupt, and a levy made under it, and thereupon, on the filing of a petition in bankruptcy by the judgment debtor, an injunction was issued restraining proceedings on the execution, and thereafter a motion was made to dissolve the injunction, on which the bankrupt produced affidavits to show that he had no interest whatever in the property levied on:

Held, That, as the assignee, though notified of the proceedings, had taken no steps to acquire possession of the property, and as it did not appear that the proceedings of the creditor under the execution would affect any one who was entitled to the protection of the court under the Bankruptcy Act, the injunction would be dissolved.

In this case the petition of the bankrupt was filed in July, 1867, and on an affidavit of the bankrupt, an order

In the Matter of Cornelius Olcott, a Bankrupt.

was made, enjoining the Ocean Bank from proceeding under an execution issued upon a judgment against the bankrupt, under which execution a levy had been made upon certain personal property as being the property of the bankrupt.

The assignee in bankruptcy was appointed in August, 1867. In November, 1867, a motion was made in behalf of the bank, to dissolve the injunction, which was from time to time adjourned. The question whether there was a valid levy upon the property under the execution, was contested.

BENEDICT, J. This is a motion made by the Ocean Bank to dissolve the injunction heretofore granted, restraining the bank from further proceedings upon an execution issued against the bankrupt, by virtue of which the bank claimed to have levied upon certain personal property.

In the aspect which the case now presents, I do not deem it necessary to consider, upon this motion, the question whether the bank had or had not a valid levy upon the property described in the papers; for the bankrupt, as it appears, makes no claim to the ownership or possession of this property, but, on the contrary, expressly declares that it is the property of his wife, and that he has no interest whatever in it; while the assignee in bankruptcy, having been appointed and notified of these proceedings, and having had abundant time and opportunity, does not see fit to take any steps to acquire possession of the property, and asks no relief at the hands of the court in relation thereto.

Inasmuch, therefore, as it does not appear that the proceeding of the bank against the property in question will affect the interests of any party entitled to the protection of this court under the Bankruptcy Act, no reason exists why the power of the court should be exercised to stay such proceedings.

The injunction, therefore, is dissolved.

The Ship Ben Adams.

Southern District of New York.

JUNE, 1868.

THE SHIP BEN ADAMS.

BILL OF LADING.-Delivery.-MARKS AND NUMBERS.

Where flour was shipped on board of a vessel at New Orleans, bound for New York, by two different shippers, the flour being all branded, "Nonpareil Mills," but the two different lots having also other brands by which they were easily distinguishable, and, for one lot of 1,000 barrels, being of a better quality and a higher value than the other, which was shipped first, a bill of lading was given, in which the flour was stated to be "marked and numbered as in the margin," the entry in the margin being simply "1,000 bbls. 'Nonpareil Mills,"" and on the arrival of the ship at New York, only 439 barrels of the 1,000 were delivered to the consignee, but, all the flour marked “Nonpareil Mills" having been discharged on the dock, a portion of the 1,000 barrels was taken away by the consignee of the other lot of flour, who was allowed to take it by the delivery clerk having charge of the delivery of the cargo: Held, That the consignee of the 1,000 barrels was entitled to a delivery of the identical barrels shipped, and was entitled to a decree against the ship for the damages occasioned by the nondelivery to him of the whole number of barrels shipped to him, less the freight and primage.

BLATCHFORD, J. This is a libel filed by Partridge, Wells & Co., of New York, against the ship Ben Adams, to recover $7,012.50, as the value of 561 barrels of flour, shipped by the Ben Adams, at New Orleans, on the 13th of March, 1865, by T. Prudhomme, consigned to the libellants at New York, under a bill of lading signed by the master of the ship therefor. The bill of lading was for "one thousand barrels of flour, being marked and numbered as in the margin." The entry in the margin was "1,000 bbls. Nonpareil Mills.'" The one thousand barrels were, all of them, when put on board of the ship, branded as follows, on one of the heads of each barrel: An outer circle of scroll-work; next