In the Matter of Samuel Hanna, a Bankrupt. the opinion that the objection was well taken, and certified the question to the Court. BLATCHFORD, J. The Register is correct in his view. The clerk will enter an order staying further proceedings in this matter until the further order of the Court. If any good reason exists for going on with the proceedings in this matter, it may be shown to the Court. JANUARY, 1871. IN THE MATTER OF SAMUEL HANNA, A BANKRUPT. MORTGAGE.--SPECIAL CUSTODIAN. Where, in a bankruptcy proceeding, an injunction was issued staying the proceedings in a foreclosure suit brought to foreclose a mortgage given by the bankrupt on certain real estate, and the mortgagees applied to the Court, on petition, to set aside the stay, in order that the property might be sold under the decree in the foreclosure suit: Held, That the Register in charge would be appointed special custodian of the property, to sell the same, and receive the proceeds subject to the order of the Court, the deed to be given by the Register to convey the title free from the lien of the mortgage. In this case, which was a proceeding in involuntary bankruptcy, an injunction had been issued staying the proceedings in a foreclosure suit brought by the firm of A. T. Stewart & Co., to foreclose a mortgage upon real estate given by the bankrupt. A decree had been made in the foreclosure suit, and the property was advertised for sale when the injunction was issued. The mortgagees applied to the Court, on petition, setting up that the mort In the Matter of Samuel Hanna, a Bankrupt. gage was given bona fide, and that they proposed to maintain the validity thereof as against any assignee, alleging, also, that the property would be deteriorated greatly in value, unless the property was speedily sold, and praying that the injunction might be set aside, so as to allow them to proceed with the sale. F. N. Bangs, for A. T. Stewart & Co. M. A. Kursheedt, for the petitioning creditors. BLATCHFORD, J. An order will be entered appointing the Register in charge of this case to be special custodian of the property advertised for sale under the mortgage to A. T. Stewart & Co., and directing him to sell the same under General Orders 19 and 21, and Rule 11 of this Court, with such other advertisement of sale as shall seem to him proper, and to receive the proceeds of such sale and pay them into this Court, they then to be deposited in the United States Trust Company, on interest, to the credit of these proceedings, as a separate fund, subject to the further order of this Court. The deed to be given by the Register to the purchaser will convey a title under the order of this Court, free from the lien of the mortgage of September 30th, 1869, in pursuance of the provisions of section 20 of the Act, and the sale will be made free from such lien. The order will recite the application by A. T. Stewart & Co., and will direct that the lien of the mortgage be transferred from the property to be sold to its said proceeds. If it shall be thought desirable, in order to obtain a better price for the property, the injunction may be so far modified that the sale may take place also under the judgment, and the réferee may unite in the deed. An order will be settled, on notice, to carry out these provisions. The United States v. Forty-eight Hundred Gallons of Spirits. Eastern District of New York. JANUARY, 1871. THE UNITED STATES vs. FORTY-EIGHT HUNDRED GALLONS OF SPIRITS. INTERNAL REVENUE FORFEITURE.- PLEADING.- CONSTRUCTION OF STATUTE. EVIDENCE. -PERSONAL PROPERTY. The 96th section of the Internal Revenue Act of July 20th, 1868, (15 Stat, at Large, 164,) is to be construed to mean, that where the Statute has attached no punishment to the doing or omitting of acts required or forbidden, such act or omission, when knowingly or wilfully committed, shall be punished by the infliction of the penalty and forfeiture provided by that section. Proof that tubs were so placed in a distillery that they could be used contrary to the Internal Revenue Acts, is not sufficient to warrant the Court in finding that they have been so used. Where, in accordance with the practice in this District, in forfeiture cases, an information had been filed containing numerous counts, and the District Attorney had before the trial filed a specification of the counts on which he intended to rely, but on the trial evidence was offered which it was claimed established an offence not embraced in the specification, Held, That the omission to include it in the specification was fatal. Distilled spirits found on the premises on which the business of distilling is carried on, being the product of such business, are not "personal property used in the business" within the meaning of the 19th section of the Act of July 20, 1868. (15 Stat, at Large, 133.) BENEDICT, J. This is a proceeding in rem, to forfeit certain distilled spirits belonging to Mathew Brady, and seized at his distillery. The cause has been tried before the Court, without a jury, by consent. The distillery used by the claimant, it appears, was formerly a grain distillery, but was surveyed and accepted, to be used by Brady as a molasses distillery. The United States v. Forty-eight Hundred Gallons of Spirits. When used as a grain distillery, it had a mixing tub, placed above the mash tub, known as tub M in these proceedings, which was connected with the mash tubs by pipes. When the place was surveyed and accepted as a molasses distillery, this tub M, which, from its character, and location, could be used as a fermenting tub, was permitted to remain as it was, but was not described as a fermenting tub in any plan or description. There was also in the yard a cistern or receptacle, which could be used as a mixing tub for molasses, and which was connected by hose with tub M. There was also in the cistern room a hole in the wall, through which hose could pass out of the spirit cistern, and also a sort of man hole in the roof, through which ingress could be had to attach the hose. The distillery was, therefore, so arranged, that, by using the cistern in the yard as a mixing tub, and the tub M as a fermenting tub, the capacity of the distillery would be increased beyond the capacity shown on the plan; while any increased production could be removed from the cistern by the hose. Moreover, the distillery was permitted to run, for some time without any night watchman, and the day watchman never informed himself of the condition of the cistern room. These facts have been proved, as tending to show that the specific acts and omissions charged against the distiller were accompanied with the intent to defraud, and to conceal from the revenue officers facts required to be stated in his books. They are material only for that purpose, and do not of themselves work a forfeiture of the property in question, under any of the courts in this information. But there are other facts shown, and others offered to be shown, which, it is claimed, do work the forfeiture of the spirits proceeded against. In considering these proofs, it will be convenient first to determine the construction to be put, by this Court, upon section 96 of the Act of 1868, upon which section many of the present charges depend. The United States v. Forty-eight Hundred Gallons of Spirits. The ground taken on the part of the Government is, that section 96 is to be construed as if it read thus: "If no other penalty or punishment is imposed, there shall be a penalty of $1,000; and the offender, if a distiller, shall forfeit all spirits owned by him, whether punishable otherwise or not." But I am unable so to read the law. As I view this section, it manifests an intent to cover, by a general provision, those instances in the statute where acts have been enjoined or forbidden, but no punishment attached. I do not find in the section any words indicating an intent to cumulate or to increase punishments; and in the absence of such words, I am of the opinion, that the section must be held to mean,. what it appears to me to say, that, in cases where the statute has attached no punishment to the doing or omitting of acts required, or forbidden, such act or omission, when knowingly or willfully committed, shall be punished by the infliction of the penalty and forfeiture provided by this section. I am aware that different constructions have been given to the section, but, to my mind, the more weighty reasons are in favor of the construction I have here adopted. (U. S. v. A Quantity of Distilled Spirits, Blatchford, J., 11 Int. R. Rec., 3; U. S. v. One Rectifying Establishment, Hill, J., 11 Int. Rev. Rec., 45; U. S. v. 133 Casks Spirits, Hoffman, J., 11 Int. Rev. Rec., 191; U. S. v. 95 Bbls. Spirits, Sewell, J., Int. Rev. Rec., 123.) This view of the effect of section 96 removes from consideration a large portion of the present information, and limits the inquiry, as regards the charges made under this section, to those unlawful acts and omissions for which no punishment is provided by any other section of the act. 11 Of this class is the charge that the distiller omitted to furnish to the assessor an accurate plan or description of the distillery, showing the number and contents of every mash tub and fermenting tub, as required by section 9 of the Act of July 20, 1868. And also the charge that, |