Butler v. Russel. the rule is a sound one, but it is unnecessary to decide the point, as it clearly has no proper application to this case. Foster v. Pritchard, 40 Eng. L. & Eq. 446. Suppose both acts were not in force at the. same time, then the plaintiff contends that Congress, in repealing the provision in the act of June 13, 1864, by the joint resolution, revived the similar provision in § 6 of the antecedent revised act, although the two provisions are expressed in the same words. Undoubtedly the general rule is, that by a repeal of a repealing statute, the original statute is revived, and it was held in the case of Hastings v. Aiken, 1 Gray, 163, that the general rule was so even where the original statute was repealed by implication; but the rule, like most other general rules, is subject to important qualification and exceptions. Much depends in all such cases upon the intention of the legislature, and it is equally well settled that the rule that a statute may be revived by implication or construction cannot operate upon any part of an act which has been expressly altered by subsequent legislation. Smith Com. 909; Chancellor's Case, 1 Bland, 663; Wheeler v. Roberts, 7 Cow. 536. Neither want of knowledge, oversight, nor absurdity ought to be imputed to the legislature in the construction of a statute, unless the language employed in the provision to be construed, is such that the conclusion cannot be avoided without distorting its plain meaning. Nothing but forgetfulness or oversight could have induced Congress to repeal the provision described in the joint resolution if they had supposed that the effect of the repeal would have been to revive the provision in the former law, which was expressed in the exact same words. Such a conclusion would be unreasonable, as it supposes that Congress desired to render complex what was plain and unambiguous, which is past belief, if not positively absurd. Greater weight would be due to the suggestion, if the repeal under the opposite view would leave the manufactures in question exempt from duty, but the better opinion is that by the repeal they became dutiable under the preceding paragraph in the same section, which provides that there shall be levied, collected, and paid on "bunting and all other manufactures of worsted, mohair, alpaca, Butler v. Russel. or goat's-hair, or of which worsted, mohair, alpaca, or goat'shair shall be a component material, not otherwise provided, fifty per centum ad valorem." Serious doubt cannot be entertained that the act, if the repealed paragraph had never been contained in it, would have been equally effectual, as a general revision of the tariff acts, in regard to the articles therein enumerated, to repeal the prior law; nor that the manufactures of cloth, woven or made in patterns, or cut in such a manner as to be solely fit "for shoes, etc.," would have been dutiable under the preceding paragraph, imposing a duty of fifty per centum ad valorem on the manufactures therein described and enumerated as fabrics in the piece or web, and it is not perceived that any different rule should be applied in the case before the court, where it appears that the second paragraph is repealed, as it leaves the act just as it would have been if it had never contained any such provision. Ten per centum ad valorem only was imposed by the second paragraph, referred to, on such manufactures of cloth, when woven, made, or cut in patterns as aforesaid, and the effect of the repeal, as intended by Congress, was to raise the duty from ten to fifty per centum ad valorem, as provided by the first paragraph upon the subject in § 5 of that act. 13 Stat. at Large, 208. Congress indubitably so understood the matter on March 29, 1867, when the joint resolution of that date was passed, which provides that the joint resolution of March 2 of that year already referred to, shall not be construed to apply to lasting, mohair-cloth, silk, twist, or other manufactures of cloth, woven or made in patterns of such size, shape, and form, or cut in such manner, as to be fit for buttons exclusively. Unquestionably the object of that resolution was to reduce the duties of the manufactures of cloth to ten per centum ad valorem, and Congress, in adopting that mode to accomplish the purpose, proceeded upon the ground that the rule under the antecedent law, as modified by the first-named joint resolution was fifty per centum, and not ten per centum ad valorem, as is supposed by the plaintiff. 13 Stat. at Large, 24. Passed, as the second joint resolution was, subsequently to the approval of the tariff act of March 2, of that year, it became necessary, in order to prevent an increase of duty "on manufac Butler v. Russel. tures composed wholly or in part of worsted, the hair of the alpaca, goat, or other like animals," to take the same out of the operation of the third paragraph of § 2 of that act. 14 Stat. at Large, 561. When woven, made or cut for shoes, boots, bootees, or gaiters, Congress intended that the fabric should pay the same duty as if the fabric was imported in the piece or web, and for that reason the increased duty is levied upon the cloth as manufactured, without any designation of the purposes for which it was woven, made or cut, as provided in the third paragraph of § 2 of that act; but Congress did not intend to enact any increase of duty on that manufacture when woven, made, or cut, as aforesaid, exclusively for buttons, not made for tassels or ornaments, as provided in the eighth paragraph of the same section. Stat. at Large, 561. 14 Such fabrics or manufactures are dutiable under the former act, and, since the passage of the joint resolution amending the repealing resolution, are subject only to a duty of ten per centum ad valorem, because they are regarded as embraced in the second paragraph upon that subject, in the fifth section of the prior act, just as if the repealing resolution had never passed, but the paragraph in all other respects remains repealed. Consequently the same fabric when woven, made, or cut, so as to be fit only for shoes, slippers, boots, bootees, or gaiters, or for anything else, except buttons, not for tassels or ornaments, if valued at above eighty cents per pound, is subject to a duty of fifty cents per pound, and in addition thereto is also subject to a duty of thirtyfive per centum ad valorem. Demurrer sustained. Fourth count adjudged bad. Judgment for the defendant. United States v. Two Hundred and Seventy-Eight Barrels of Distilled Spirits. UNITED STATES v. Two HUNDRED AND SEVENTY-EIGHT BARRELS OF JOSEPH A. BOYDEN and JOHN H. HARRING DISTILLED SPIRITS. Where goods are withdrawn from a United States bonded warehouse by fraud, the permit so obtained is a mere nullity, and the person perpetrating the fraud has no more right to the possession of the merchandise than if the same had been taken by force or had been stolen by him. Goods removed from a United States bonded warehouse by consent of the collector obtained by fraud are subject to forfeiture. Where a person purchases goods as agent for another, knowing that the same had been removed before the taxes were paid, from a United States bonded warehouse by fraud, the principal would be bound by the knowledge of the agent. The jury must find in such case that the agent was cognizant of the fraud at the time he made the purchase, else they would not be justified in finding that the principal was affected by the antecedent knowledge of the agent. The only office of a bill of exceptions is to bring before the appellate court such questions as were duly raised and properly saved in the subordinate court. Where spirits fraudulently withdrawn from a bonded warehouse were seized for nonpayment of the taxes thereon, after they had been mixed at a rectifying establishment with others belonging to the claimants, so that they could not be distinguished, it was held that the United States were entitled to a forfeiture of a fair proportion of the mixture, even though the mixture might have been innocently made, provided the jury were satisfied from the evidence, and under the instructions of the court, that the spirits fraudulently withdrawn would have been by law liable to forfeiture, if they had not been so mingled with others. The right of the United States to a forfeiture cannot be destroyed by the intermixture of the liquors fraudulently taken from the warehouse, with others not subject to forfeiture. If spirits liable to forfeiture in consequence of fraudulent removal from a United States bonded warehouse and for nonpayment of taxes, were fraudulently mixed with others by the claimants and belonging to them, in order to destroy the identity of the goods so fraudulently removed, then the entire quantity is forfeited. This rule is never applied where the goods can be separated and distinguished. If the claimants knew, when they made the mixture, that the spirits which they mixed with their own had been fraudulently withdrawn from the bonded warehouse, then the spirits seized would be liable to forfeiture. The rule might be otherwise where the effect of the intermixture was to convert the substances into a new species, unless the new species can be reduced to its elements. Wherever goods of a similar kind are innocently intermixed, so that they cannot be distinguished, and they are not substantially destroyed, as by the production of a different species, the several owners may reclaim their respective shares, and take possession of the same wherever they can find them, if they can do so without a breach of the peace, or they may bring trover for the value of their proportions, against the person in possession, after demand and notice. Under the act of July 13, 1866, where spirits on which taxes were imposed were found in the custody of the claimants, after fraudulent removal from the warehouse, with the United States v. Two Hundred and Seventy-Eight Barrels of Distilled Spirits. taxes unpaid, it must be assumed, under a finding of the jury like the one in this case, that the claimants held them for the purpose of selling and removal in fraud of the revenue. ERROR to the District Court of the United States for the District of Massachusetts. Certain distilled spirits, described in the information, were seized at Boston in this district, on April 27, 1867, and the original information was filed in the District Court on May 15 following. The cause of seizure, as alleged, was that the spirits in question were manufactured in the United States, and that having been so manufactured they were at the time of seizure, and had been for a long time before, subject to a tax imposed thereon, under the acts of Congress relating to internal revenue; that the barrels containing the spirits were then and there found elsewhere than in a bonded warehouse, to wit, in a store and building occupied by the firm of one of the claimants, which was not a bonded warehouse; that the tax so imposed on the said distilled spirits had never been paid, and that the said distilled spirits had not then and there been removed from a bonded warehouse according to law: Subsequent to the filing of the information, the claimants appeared and severally pleaded that the goods did not, nor did any part thereof, become forfeited as alleged in the information, and that none of the allegations in the information were true. Issue was joined upon each of those pleas, and the verdict of the jury was in favor of the United States. Exceptions were taken by the claimants to the refusal of the court to instruct the jury, as requested, and also to the instructions of the court as given to the jury. Separate claims were filed by the respective claimants for distinct portions of the spirits seized, and in making their defence they set up, in certain aspects of the case, very different theories, both in the pleadings and by the bill of exceptions. Prior to the seizure several hundred barrels of spirits of domestic manufacture deposited here, in the bonded warehouses of the United States, had been withdrawn upon application made in due form to the collector of the district. The application represented that the spirits were to be transported to Eastport, in the State of Maine, for exportation to a foreign market; but |