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Gregory v. The United States.

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ingly” is inserted wherever realty is referred to, and omitted wherever personalty is referred to; that the words used rel. ative to personalty found on premises used for ingress and egress, and those used relative to realty used for ingress and egress, are the same, except as to the word “knowingly;" that such difference was intentional, and must, if possible, be made effective; that it cannot be made effective except by the ruling made in the Court below; that it is not contended for the United States that the words “permit” and “suffer" do not imply knowledge, but it is contended that it is sufficient knowledge if the claimant knew that the illicit distiller was obtaining ingress and egress to and from the building where his illicit work was carried on, and allowed him to do 60; that, under such circumstances, he permitted such distiller to use the inclosure for ingress and egress to and from the distillery, even though he had no knowledge that there was a distillery there; that the position of the claimant is, that the words “suffer” and “permit” necessarily and of themselves import knowledge, and that the word “knowingly” cannot add to such meaning, nor can its absence take away from such meaning; that such position makes the peculiarity of the use of the word “knowingly” unmeaning and ineffectual; that it is enough that the claimant permitted ingress and egress to and from the building in the rear, and that there was in that building an illicit still; that the purpose of the permission is not material, where personalty is concerned ; and that such purpose becomes material only when a question arises as to the forfeiture of realty.

Section 3,281 contains various provisions for forfeiture. It forfeits (1) spirits and distilling apparatus owned by the illicit distiller, wherever found; (2) all spirits and personal property found on the premises of the illicit distillery; (3) the interest of the illicit distiller in the distillery premises; (4) the interest in the distillery premises of every person who knowingly has suffered or permitted the business of a distiller to be there carried on or has connived at the same; (5) all personal property found in any building, yard or inclosure,

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Gregory v. The United States.

owned or possessed by any person who has permitted or suffered such building, yard or inclosure to be used for purposes of ingress or egress to or from the illicit distillery; (6) the interest in any premises used for ingress or egress to or from the illicit distillery, of every person who has knowingly suffered or permitted such premises to be used for such ingress or egress. Knowledge of the use of the place as a distillery, at least, whether in an unlawful manner or not, seems to be clearly predicated in all these cases except the fifth. The illicit distiller knows of his own fraud, it is presumed, and so his spirits and apparatus are forfeited, wherever found. The owner of all spirits and personal property found on the premises of the illicit distillery, is held to forfeit it, on the view, that, being on the premises, it is presumed to be used in the illicit business or to be its product, and that its owner is bound to know that it is in a distillery. The interest of the illicit distiller in the distillery premises is forfeited, because he is presumed to know of the fraud. The interest in such premises of every person who knowingly has suffered or permitted the business of a distiller to be there carried on, or has connived at the same, is forfeited, because, knowing that the place was used for a distillery and permitting it to be so used, he is made responsible for its use in a fraudulent manner. The interest in any premises held for ingress or egress to or from the illicit distillery, of every person who has knowingly suffered or permitted such premises to be used for such ingress or egress, is forfeited, because, knowing that the place was used for a distillery and permitting his premises to be used for ingress and egress to and from such distillery, he is made responsible for its use in a fraudulent manner. In every one of these five cases there is to be knowledge that there is a distillery. Yet it is claimed by the United States, that, under the fifth clause of the section, it is not necessary that the owner of the personal property should know that the ingress

egress over his premises is to and from a distillery. This difference is predicated on the absence of the word “knowingly” in the fifth clause, when it is found in the fourth and

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Gregory v. The United States.

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sixth clauses; and it is claimed to be enough that the owner of the personal property knows of the abstract ingress and egress and allows it, even though he does not know that it is ingress and egress to and from a distillery. Under this view the same duty would have been cast on the claimant if he had not owned the rear building. In either case it is claimed that, having given a right of way to a building which he was told was to be used as a vinegar factory, he was bound to see that it was not used as an illicit distillery.

In the ordinary use of language, when it is said that a perBon permits or suffers premises to be used for egress and ingress to and from a distillery, the meaning is, that he knows that the ingress and egress are to and from a distillery, that there is a distillery, and, that, knowing there is a distillery, he permits the ingress and egress, and intends that the ingress and egress shall be to and from the distillery. The permission, sufferance, allowance, authority and license are predicated quite as much on knowledge that there is a distillery as on knowledge that there are ingress and egress. The distinction in this case is sought to be founded on the absence of the word “knowingly.” But, it would be more in harmony with the purview of the whole section, and with the natural meaning of the words "suffer” and “permit,” to hold that the word “knowingly," where it occurs, can have no reasonable meaning as adding to the force of the words “ suffer” and “permit,” and should be rejected there as surplusage. The word “knowingly,” where it is used, is used to qualify the word “suffered” and the word “permitted.” The words are “knowingly has suffered or permitted” and “has knowingly suffered or permitted.” The word “permitis defined thus: “To grant permission, liberty or leave; to allow; to suffer ; to tolerate; to empower; to license; to authorize." The word “suffer” is defined thus: “To allow; to admit; to permit.” The word admit” is defined thus: “To permit; to suffer; to tolerate.” The word “allow" is defined thus: “ To suffer; to tolerate.” The word “tolerate" is defined

" thus: “ To allow so as not to hinder; to permit as something

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Gregory v. The United States.

not wholly approved ; to suffer; to endure ; to admit.” Every

; definition of "suffer” and “permit” includes knowledge of what is to be done under the sufferance and permission, and intention that what is done is what is to be done. When it is said that a person suffers or permits a yard to be used for purposes of ingress and egress to and from a distillery, his sufferance or permission must be applied to the whole subject-matter, and he does not suffer or permit the ingress and egress to and from the distillery, unless he is conscious that there is a distillery as well as ingress and egress. It is not said that he does any more, when it is said that he knowingly suffers or permits a yard to be used for purposes of ingress and egress to and from a distillery.

There is nothing in the decision in the case of the United States v. The Distillery at Spring Valley, (11 Blatchf. C.C. R., 255,) which is inconsistent with the foregoing views. The decision there, so far as it was on the 44th section of the Act of July 20th, 1868, (15 U. S. Stat. at Large, 142,) now section 3,251 of the Revised Statutes, was, that that section, in providing for the forfeiture of the interest in the land on which a distillery is situated, of every person who knowingly has suffered or permitted the business of a distiller to be there carried on, or who has connived at the same, does not require that he should have knowingly suffered or permitted it to be fraudulently carried on or that he should have connived at such fraud. Indeed, the Court, (at page 267,) when citing the provisions of said section 44 which form clauses five and six thereof, as above set forth, couples them together and remarks that they provide for "the knowing permission or sufferance of the use for, or in aid of, the business of distilling."

On the whole, I am of opinion that the question asked of the claimant and excluded was improperly excluded ; that it was a question for the jury whether the claimant knowingly or consciously suffered or permitted the drive-way to be used for the purpose of ingress or egress to or from a distillery, knowing or being conscious that there was a distillery in the

Penrose v. Penrose.

rear building; and that it was error to direct a verdict for the United States.

The judgment below is reversed, with a direction to the Court below to enter an order granting a new trial.

Louis F. Post, for the plaintiff in error.

Edward B. Hill, (Assistant District Attorney,) for the defendants in error.

EDWARD PENROSE v8. THOMAS B. PENROSE.

An injunction will not be granted to restrain a defendant from proceeding

in the State Court in a cause which the plaintiff claims has been removed into this Court, although the jurisdiction of this Court orer the cause is clear, and the State Court has refused to make an order for the removal of the

cause, and the defendant has noticed the cause for trial in the State Court. Such injunction is not required to uphold the jurisdiction of this Court over the

cause.

(Before BENEDIOT, J., Eastern District of New York, November 29th, 1879.)

BENEDICT, J. This is a motion for an injunction to restrain the defendant from taking further proceedings in this cause in the State Court, where, as it appears, the defendant has noticed the cause for trial at the November term. The facts stated in the affidavit read in opposition to this motion afford no ground upon which to deny the jurisdiction of this Court. No defect in the proceeding taken to remove the cause has been called to my attention, nor do the facts stated in regard to what has occurred in the cause afford any ground upon which to deny that jurisdiction of this Court over the cause is complete. It appears, from the moving papers, that the State Court has denied the application of the defendant for an order directing the removal of the cause, but no copy

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