
    FINCH’S CASE.
    Joseph S. Finch v. The United States.
    
      On the Proofs.
    
    
      In 1868 a distiller applies for two lice meters and deposits the price with the col-leetor,pursuant to the regulations. The meters aresldpped hy the manufacturer, and the money is paid over to him hy the collector, hut one of them is never attached to the distillery and the other is defective. Neither is ever used hy the revenue-officers. The distillery is not suspended nor interfered with for want of effective meters, hut they having been practically useless and ultimately abandoned hy the Internal Revenue Bureau, the distiller claims that he is entitled to recover hadlc from the defendants the purchase-money which their regulations compelled him to deposit, and which their collector prematurely paid over to the manufaotwrér.
    
    I. The relations of the Government -with distillers, on the one hand, and the manufacturers of the Tice meter, on the other, examined and explained.
    II. The attachment of meters to distilleries, the supervision of the same by revenue-officers, and the use of meters to detect frauds or ascertain the quantity of spirits distilled, were acts for the benefit of the Government ; and the omission or neglect of the officers to supervise, attach, or compel the use of such meters, worked no inj ury to the distiller and gave him no cause of action.
    
      III. Where a distiller, pursuant to regulations, deposited the price of a Tice meter with a collector, who paid it over to the manufacturer before the meter was attached, and it in fact never was attached, but the distillery was never stopped for the want of it, no action lies against the Government to recover back the purchase-money.
    IV. Where a distiller, pursuaut to regulations, deposited the price of a Tice meter with a collector, who paid it over to the manufacturer before the meter was tested and proved, and it turned out that the meter was defective and worthless, bnt the distiller was not compelled to procure another, and the distillery was not stopped for the want of one, no action lies against the Government to recover back the purchase-money.
    T. Where a distiller received a defective Tice meter but did not offer to return it, and still retains it, he cannot rescind the purchase and recover back the price.
    . The Reporters statement of tbe case:
    The following facts were found by the court:
    1. In the years 1868 and 1869, and thereafter, the claimants were distillers, and had distilleries in Pittsburgh, Pa., in the then twenty-second internal revenue collection-district, designated Nos. 1 and 4.
    2. On the 9th and 23d of October, 1868, the. claimants made application in writing, (on printed blanks furnished and distributed by the Intern al-Bevenue Bureau.) through the collector of said district, for meters for their said distillery No. 1, in the form and manner prescribed by the regulations of the Commissioner of Internal Bevenue, and therewith made with said collector the deposit required by said regulations for the price of said meters, to wit, $2,050. Said applications were by the collector forwarded to the Commissioner, and by him transmitted to Isaac P. Tice, New York City.
    The meters thus applied for were delivered by Mr. Tice December 19, 1868, but were never set up, asthe distillery ceased to run long before any person went there to make the attachment.
    The certificate of deposit for said $2,050 issued upon ordering said meters was mailed by the collector to-Mr. Tice and the receipt thereof acknowledged by him. '
    3. On the 12th of March, 1869, the claimants made application in writing, (on printed blanks furnished and distributed by the Internal-Bevenue Bureau,) through the collector of said district, for meters for their said distillery No. 4, in the form and manner prescribed by the regulations of the Commissioner of Internal Revenue, and therewith made with tbe collector the deposit required by said regulations for the price of said meters, to wit, $2,100.
    Said application was by the collector forwarded to the Commissioner and by him transmitted to Isaac P. Tice, New York City.
    The meters thus applied for were delivered by Mr. Tice July 26,1869, and were set up and attached to distillery No. 4 about September 1, 1869, but never did work properly.
    The certificate of deposit for said $2,100 issued upon ordering said meters was mailed and forwarded by the collector to Mr. Tice July 31, 1869, and the receipt thereof acknowledged by him. ,
    4. No official report of the testing of said meters before shipment from the manufactory is found on the records of the Office of the Commissioner of Internal Revenue. It does not appear that any officer of the Internal-Revenue Bureau was detailed to supervise the attachment of the meters or to test them after attachment, or that daily reports by the storekeeper having charge of said distilleries, setting forth the indications as shown by the meters at the hour of 12 meridian for any ten consecutive (distillery) days, were made, or that meter-indications were considered by the assessor in making his monthly computations of the product of said distilleries.
    5. After the passage of the act approved July 20, 1868, (15 Stat. L., 125, chap. 186,) the Commissioner of Internal Revenue adopted and prescribed for use at distilleries the spirit-meter invented by Mr. Isaac P. Tice, and made regulations and issued circulars and letters in relation thereto j of such parts of which as may be deemed material the following are copies :
    A.
    (Circular No. 69.)
    Office of Internal Revenue,
    Washington, September 16,1868.
    Notice is hereby given that the Commissioner of Internal Revenue has adopted and prescribed for use in distilleries the spirit-meter invented by Mr. Isaac P. Tice, of New York, being the same that was adopted and prescribed by the honorable Secretary of the Treasury on the 19th of April, 1867, under section 15 of the act of March 2,1867, and subsequently recommended for use by the commission appointed under the joint resolution of Congress approved February 3, 1868.
    Section 3 of the act of July 20, 1868, provides that whenever the Commissioner of Internal Revenue shall adopt and prescribe for use any meter, every owner, agent, or superintendent of a distillery must furnish and attach, at his own expense, such meter for use at his distillery, and.furnish all pipes, materials, labor, and facilities necessary to complete such attachment in accordance with the regulations of the Commissioner of Internal Revenue, who is also authorized to order and require such changes of or additions to the distilling-apparatus, connecting-pipes, pumps, or cisterns, or any machinery connected with or used in or on the distillery premises, and prescribe such fastenings, locks, and seals, as he may deem necessary.
    The system which has been adopted involves the use of two meters; the first with double counters at the end of the worm through which the entire product of the still will pass, the quantity of high wines being indicated upon one set of registers and the quantity of low wines upon another. The second meter will be placed upon the doubler in such positiou as to register the quantity of low wines carried back to the doubler for redistillation. If the still is provided with such attachments that no low wines are discharged, and the distiller is prepared to report as taxable the entire product of the still, the second meter will not be required.
    These meters are constructed of six different sizes, the prices and capacities being as follows:
    Sample-meter A.'. $200
    Sample-meter B.. •... 250
    Meter No. 1. — Single counter. 450
    Double counter. 500
    Capacity, one and a half gallons per minute.
    Meter E o. 2. — Single counter. 600
    Double counter. 650
    Capacity, three gallons per minute.
    Meter Bo. 3. — Single counter..... 800
    . Double counter. 850
    
      Capacity, six gallons per minute.
    Meter No. 4. — Single counter. $1, 000
    Double counter. 1,050
    Capacity, eighteen gallons per minute.
    The small meters, A and B, are intended more especially for application to small copper stills, and the capacity above given must be understood to be the maximum capacity per minute of each of the meters.
    The meter adopted, being the invention of Mr. Tice, and secured to him by letters-patent, can ouly be made by him or under his license; and, in order to guard against an unreasonable price being demanded of those who are bound by law to purchase it, the prices of the several sizes, under an arrangement made between Mr. Tice and the Government, have been determined by a committee, consisting of William T. Duvall, of Georgetown, D. O.; William P. Trowbridge, of New York ; and S. J. Knowles, of Massachusetts, all practical and skillful machinists, two of whom were designated by the Government and one by Mr. Tice, and the sums hereinbefore named are the prices agreed upon by them for the meters delivered at the place of manufacture, as stated in the report of that committee.
    Mr. Tice reports that he has now on hand, finished and ready for delivery, one hundred and seventeen meters, with thirty-six others in an advanced state, which will soon be ready for delivery, and has no doubt that he will be able to deliver meters as fast as they may be ordered, aud as fast as distillers shall become authorized to run under the new law.
    Under the provisions of section 3 distillers are required to procure and attach such meters, and in making their applications therefor they must state the capacity of the still in cubic feet, and its utmost possible produciug-capacity per minute; that is, the greatest possible quantity of spirits that will pass from the. worm in that time.
    ,The produciug-capacity here referred to must not be confined to high wines merely, but must show the entire quantity of spirits, whether high or low wines, which can pass from the worm in the time specified. The attention of distillers is especially called to this point, as the discharge from the worm is not uniform, and if the meter is not of sufficient capacity to measure and pass the largest quantity which the worm can discharge it will be flooded, and its operations thereby stopped, until the meter is opened and again placed in working-order.
    
      The application must also show the cubic contents of the doubler, the outside diameter of the worm at its lower extremity, the height and diameter of the tank in which it is placed, and the material of which the still, doubler, and tank are constructed. The diameter of the main pipe leading from the still to the doubler, as well as of the charging and discharging and blow-off pipes, including the pipe used for discharging the doubler, must also be given. There is also required a description of the foundations upon which the still, doubler, and condenser are respectively supported. If the still is provided with collapse-valves, their number and diameter must also be stated.
    This application will be made on Form 7 as heretofore prescribed, which will be furnished by the collectors of the several districts. At the time of making the application the applicant will furnish to the collector of his district a certificate of deposit in a United States depository for the amount of the price of the meter or meters, payable to the order of Mr. Tice, and the collector will certify upon such application that he' has received such certificate, and forward the application to this office for transmission to Mr. Tice. And the applicant should also state the means of access to the distillery, whether by railroad, steamboat, or canal, and with what points the distillery is connected by either of these modes of communication. If there is any person carrying on the trade of coppersmith in the immediate vicinity the collector, will state the fact; and if not, he will state the distance to the nearest point at which the services of such artisan can be procured. Upon the delivery of the meter to the distiller, the collector will at once transmit the certificate of deposit to Mr. Tice, at his address, 314 Third avenue, Few York City.
    Meters will be attached under the joint supervision of the manufacturer, or his agent, and of an assistant assessor, who will be specially detailed for that purpose by the assessor of the district, who will report the name of such assistant to this office.
    The expenses of transportation and attachment of the meters, and of any changes required to be made in the distillery, are to be paid by the distiller.
    So long as meters are ready for delivery distillers must procure and attach them. Should any distiller refuse to procure arid attach a meter, it will be the duty of the collector to close the distillery, arid forthwith institute the proper proceedings for its condemnation and the enforcement of the penalties as provided by law.
    Immediately upon the receipt of these instructions, collectors will report to this office the number and location of all the distilleries in operation in their respective districts, with the names of the owners; and thereafter, when any distiller shall commence business, the fact will be immediately reported to this office..
    Distillers of apples, peaches, and grapes, exclusively, will not be required to furnish and attach meters to their distilleries.
    E. A. ROLLINS,
    
      Commissioner.
    
    33.
    Office of Internal Revenue,
    Washington, September 16,1868.
    Sir : Having decided to adopt and prescribe the meter invented by you for use in distilleries, you are hereby directed to proceed with their construction, provided you are willing to do so upon the following conditions:
    First. Samples of the meters A. and B, and of the single and double counter meter, will be kept, and such set of meters will be tested and compared with the sample, by an officer detailed for that purpose, before being removed from the factory, and again after being finally attached to the distillery; and if any meter, upon being so attached, shall prove to be defective in any respect, the defective part shall be replaced or a new meter furnished without additional expense to the distiller.
    Second. Public notice will be immediately given of the adoption of the meter, and distillers will be required to procure and attach them to their distilleries as fast as they can be delivered and attached, until all are supplied.
    ' Third. The one hundred and seventeen (117) meters now finished will be immediately made ready for delivery, and the thirty-six (36) now in process of manufacture will be completed as soon as possible. The manufacture of others, to the number of five hundred' (500) in all, is to be proceeded with as rapidly as possible, and thereafter not more than twenty sets are to be in process of construction at one time, unless a greater number is directed by the Commissioner of Internal Revenue.
    
      Fourth. The Commissioner reserves to himself or his successor in office the right at anytime to adopt any improvement of the meter or system, or to revoke the order adopting the meter, and to direct on the part of the Government a discontinuance of its manufacture.
    Fifth. You are to furnish the meters in good order and condition ready for transportation, at the prices fixed by the committee, which are as follows :
    The cost of transportation, and expense of attaching the same, to be paid by the distiller.
    Sixth. The attachment of the meters is to be made under your direction, and also under the supervision of the officer to be detailed under the regulations, and after the final attachment and closing of the meter the working of the overflow-valve is to be tested by flooding the meter.
    Seventh. You are to report to this office at the end of each week the number of meters that have been delivered, and to whom the same were shipped, and the number on hand ready for delivery.
    Yery respectfully,
    E. A. ROLLINS,
    
      Commissioner.
    
    Isaac P. Tice, Esq.,
    
      New York, N. Y.
    
    C.
    Oeeice oe Internal Revenue,
    
      m Washington, January 8, 1869.
    Sir : You will forward no certificates of deposit in payment for meters delivered until the meters are attached to the distilleries, and in future you will take the certificate of deposit in your own name, changing those which have been already taken, if you can do so.
    Please report, in detail, amount of certificates already sent.
    Yery respectfully,
    E. A. ROLLINS,
    
      Commissioner.
    
    This letter was addressed and sent to the collectors of all internal-revenue districts.
    
      D.
    Office of Internal Retenue, .
    
      Washington, January 20, 1869.
    Sir : In the adoption of the meter it was intended that some person should lie stationed at the manufactory, or should have it in charge, to test every meter before it was sent out. Hitherto all attempts to have certain persons designated for that purpose have failed, and I now desire that you will take it upon, yourself to thoroughly test every meter before it leaves the manufactory of Mr. Tice, and that none shall be sent unless you are satisfied with its completeness under such test as you may subject it to. I desire that you will enter upon' this employment immediately, and from time to time report the results to this office.
    "Very respectfully,
    E. A. ROLLIUS,
    
      Commissioner.
    
    Wm. Wheaton, Esq.,
    
      Care Collector Field, New YorJc.
    
    E.
    (Special No. 6D.)
    Office of Internal Revenue,
    
      Washington, February 5, 1869.
    The attention of collectors of internal revenue, and of distillers, is called to the provisions of the law Ünd.the regulations in relation to the procurement and attachment of meters.
    Examination in many cases has shown that the meters applied for by distillers are too small in capacity for the distillery. In Circular Ho. 69, distillers, in making their application, are directed to state the utmost possible producing capacity of the still per minute, “that is, the greatest possible quantity of spirits that will pass from the worm in that time. The attention of distillers is especially called to this point, as the discharge from the worm is not uniform, and if the meter is not of sufficient capacity to measure aud pass the largest quantity which the worm will discharge, it will be flooded, and its operation thereby stopped until the meter is opened, and the valve again placed in working order.”
    Distillers should be at once required to revise their applications for meters, and where the meters are too small, or only one is applied for when two are required, the applications should be at once corrected. If not so done, it will be understood that the distillers propose to stand upon their applications as made, and that they will take the entire responsibility as to the meters ordered by them being of sufficient capacity; and, where only one meter is applied for, that they assent to being taxed for the low as well as the high wines. All revenue officers will govern themselves accordingly. The manufacturer of the meters will be instructed to forward the meters of the sizes applied for, and to attach the same; and if any trouble arises on this account, the distiller, having been furnished with the precise size he asked for, will have no reason to complain of any one but himself.
    A daily report must be made by the storekeeper in charge of each distillery to the assessor of the district, setting forth the indications shown by the meter at the hour of twelve meridian. And each assistant assessor who has a distillery in his division will examine each meter whenever he visits the distillery, and report to his assessor the indications of the meter as above directed. And assessors, in making their monthly computation on Form 89, will use the information thus given in determining the required production. Where but one meter is attached, they will charge the distiller with the full product of the worm, making no deduction for low wines returned to the still or doubler.
    Where meters had been delivered prior to the receipt of the instructions of January 8, collectors will promptly forward to Mr. Tice the certificates of deposit therefor, and measures will be taken to have them attached.
    Where collectors deposit their collections in a depository bank, the meter deposits will be made in such bank; but where they are required to deposit collections with an assistant treasurer or designated depositary, the meter deposits will be made in some responsible bank.
    E. A. ROLLINS,
    ' Commissioner.
    
    
      F.
    (Series 4, No. 5.)
    Office of Internal Revenue,
    Yiashington, March 30, 1809.
    I. — AS TO PROCURING AND ATTACHING METERS.
    On. the 16th of September, 1868, the Commissioner of Internal Revenue adopted and prescribed for use in distilleries the spirit-meter invented by Mr. Isaac P. Tice, of New York, being the same that was adopted and prescribed by the Hon. Secretary of the Treasury on the 19th of April, 1867, under section 15 of the act of March 2,1867, and subsequently recommended for use by the commission appointed under the joint resolution of Congress approved February 3, 1868.
    Section 3 of the act of July 20, 1868, provides that whenever the Commissioner of Internal Revenue shall adopt and prescribe for use any meter, every owner, agent, or superintendent of a distillery must furnish and attach, at his own expense, such meter for use at his distillery; and furnish all pipes, materials, labor, and facilities necessary to. complete such attachment in accordance with the regulations of the Commissioner of Internal Revenue, who is also authorized to order and require such changes of or additions to the distilling-apparatus, connecting-pipes, pumps, or cisterns, or any machinery connected with or used in or on the distillery premises, and prescribe such fastenings, locks, and seals as he may deem necessary.
    The system which has been adopted involves the use of two meters. The first will be attached to the end of the worm and will register the entire product of the still; the second will be placed upon the doubler in such position as to register the quantity of low wines carried back to the doubler for redistillation. If the still is provided with such attachments that no low wines are discharged, and the distiller is prepared to report as taxable the entire product of the still, the second meter will not be required.
    These meters are constructed of six different sizes, the prices and capacities being as follows:
    
      The meter adopted being the invention of Mr. Tice, and secured to him by letters-patent, cau only be made by him or under his license; and in order to guard against an unreasonable price being demanded of those who are bound by law to purchase it, prices of the several sizes, under an arrangement made between -Mr. Tice and the Government, were determined by a committee, consisting of Wm.T. Duvall, of Georgetown, D. 0.; Wm. P. Trowbridge, of Dew York, and S. J. Knowles, of Massachusetts, all practical and skillful machinists, two of whom were designated by the Government and one by Mr. Tice, and the sums hereinbefore named are the prices agreed upon by them for the meters delivered at the place of manufacture, as stated in the report of that committee.
    Under the provisions of section 3 of the act July 20, 1868, distillers are required to procure and attach such meters, and in making their applications therefor they must state the capacity of the still in cubic feet, and its utmost possible producing-capacity per minute; that is, the greatest possible quantity of spirits that will pass from the worm in that time. The producing-capacity here referred to must not be confined to high wines merely, but must show the entire quantity of spirits, whether high or low wines, which can or will pass from the worm in the time specified. The attention of distillers is especially called to this point, as the discharge from the worm is not uniform, and if the meter is not of sufficient capacity to measure and pass the largest quantity which the worm will discharge it will be flooded, and its operation thereby stopped, until the meter is opened and the valve again placed in working order.
    The application must also show the cubic contents of the doubler, the outside diameter of the worm at its lower extremity, the height and diameter of the tank in which it is placed, and the material of which the still, doubler, and tank are constructed.
    This application will be made on Form 7, as heretofore prescribed, which will be furnished by the collectors of the several districts. At the time of making the application the applicant will furnish to the collector of his district a certificate of deposit in a United States depository for the amount of the price of the meter or meters, payable to the order of Mr. Tice, and the collector will certify upon such application that he has received such certificate, and forward the application to this office for transmission to Mr. Tice. And the applicant should also state the means of access to the distillery, whether by railroad, steamboat, or canal, and with what points the distillery is connected by either of these modes of communication. If there is any person carrying on the trade of coppersmith in the immediate vicinity the collector will state the fact; and, if not, he will state the distance to the nearest point at which the services of such artisan can be procured. Upon the receipt of the bill of lading the collector will at once transmit the certificate of deposit to Mr. Tice, at his address, 314 Third avenue, Hew York Oity.
    The expenses of transportation and attachment of the meters, and of any changes required to be made in the distillery, are to be paid by the distiller.
    The distillers must furnish all lumber and other materials necessary for the attachment of the meter, and such workmen and assistants as may be required. The attachment will be made in such manner as to interfere as little as possible with the operation of the distillery; but in case the distiller neglects promptly to provide the materials and assistance required, or in any way attempts to delay or defeat the attachment, it will be the duty of the collector of the district to close the distillery until the meters are attached.
    Where meters are being attached to several neighboring distilleries at the same time, the expenses incurred by Mr. Tice and his employés will be apportioned among the several distilleries according to the time employed in each/
    Distillers should be at once required to revise their applica tions for meters, and where the meters are too small, or only one is applied for when two are required, the applications should be at once corrected. If not so done, it will be understood that the distillers propose to stand upon their applications as made, and that they will take the entire responsibility as to the meters ordered by them being of sufficient capacity j and, where only one meter is applied for, that they assent to being taxed for the low as well as the high wines. All revenue-officers will govern themselves accordingly. The manufacturer of the meters Will be instructed to forward the meters of the sizes applied for, and to attach the same; and, if any trouble arises on this account, the distiller, having been furnished with the precise size he asked for, will have no reason to complain of any one but himself.
    Meters will now be delivered as fast as the corrected applications are received, and the manufacturer will proceed with their attachment as fast as possible. Collectors should at once notify all distillers who have not made application to do so immediately, and will report to the Commissioner the names of such as refuse or neglect to make such application. Whenever a certificate of deposit is forwarded to Mr. Tice, the collector will report the fact to this office, giving the amount, and name of the distiller who made the deposit.
    Where collectors deposit their collections in a depository bank, the meter-deposits will be made in such bank; but where they are required to deposit collections with an assistant treasurer or designated depositary, the meter-deposits will be made in some responsible bank.
    A daily report must be made by the storekeeper in charge of each distillery to the assessor of the district, setting forth the indications shown by the meter at the hour of 12 midnight, or at the time when the distillery ceases to operate for the day. And each assistant assessor who has a distillery in his division will examine each meter whenever he visits the distillery, and report to his assessor the indications of the meter as above directed$ and assessors, in making their mpnthly computation on Form No. 89, will use the information thus given in determining the production. Where but one meter is attached, they will charge the distiller with the full product of the worm, making no deduction for low wines returned to the still or doubler.
    Under the provisions of the law the distiller is required to furnish and attach meters at his own expense, and also to furnish all pipes, materials, labor, and facilities necessary to complete such attachment. The first duty of a distiller is, of course, to procure a meter. The manufacturer is not required to furnish the meters on credit, and ought not to be expected to do so. When' he ships a meter to a distiller, in accordance with the application, the manufacturers entitled to thepayfor it. The law does not require the manufacturer to attach it, but, on the contrary, requires the distiller to attach at his own expense. Wherever changes are required in a distillery to facilitate tho attachment, such changes must be made by the distiller. In order that the attachment may be made correctly and the meters properly adjusted, the manufacturer or some of his own workmen are required to superintend the attachment. When the distiller is notified by the manufacturer or his agents what changes are necessary, and what materials or assistance are required, he should furnish them promptly. It will be the duty of collectors to see that they do so, and in case of any unreasonable delay to close the distilleries until the attachment is completed.
    Wherever it is practicable an officer detailed by the Commissioner will supervise the attachment, and when no such detail is made the assessor will detail one of his assistants for that purpose. When the attachment of a meter is completed, it must be promptly reported to this office by such officer or assistant assessor. The presence of such officer, however, will not be understood as relieving either the collector or assessor of the district from the responsibility properly belonging to them.
    A strict compliance with these instructions will be required of all officers of internal revenue. Whenever the manufacturer or his agents commence the attachment of meters in any district, the officers of such district are required to afford them every aid in their power, in order that the work may be completed as soon as possible. If there is any delay on the part of the distiller, or if any obstacles are interposed by him, or the manufacturer or his workmen fail to do their duty, prompt report must be made to this office.
    • All must understand that the requirements of the law in relation to meters and their attachment will be rigidly enforced.
    II. — Computation op quantity op proop-spirits.
    III. — Testing meters when attached to a distillery. ’
    The officer should see to the measurement personally, as well as to obtaining the average proof of each run.
    0. DEIAJ5T0,
    
      Commissioner.
    
    
      G.
    OEEICE OF INTERNAD REVENUE,
    
      Washington, April 6,1869.
    Sir : You are hereby detailed for the purpose of testing spirit-meters at the manufactory of Mr. Tice, previous to their delivery, and at such other places as you may be directed by this office.
    You will, from time to time, make reports of your action to this office; and, in examining or testing any meters in Hew York or Brooklyn, you will act under the advice aud direction of the supervisor in the absence of any definite instructions from this office.
    'í'ery respectfully,
    O. DELANO,
    
      Commissioner.
    
    Henry Hill, Esq.,
    
      Care of Supervisor Dataller, Sew Torlc City.
    
    H.
    (Series 5, No. 5.)
    Office of Internal Revenue,
    
      Washington, Jume 7,1870.
    Experience having shown that the automatic meters heretofore in use at distilleries are unnecessarily expensive, and do not so well answer the purpose for which they were designed as the cheaper and better sample-meters, or automatic meters adapted for use as sample-meters, and that the use of the second or “credit” meter may be beneficially dispensed with, it is hereby ordered that hereafter the use of all meters except said sample-meters, or automatic meters adapted for use as sample-meters, be, and is, discontinued ; and that hereafter one meter only shall be required for each distillery, which shall be attached in such way as that all the spirits produced at such distillery, after the manufacture thereof is complete, shall pass through such meter; and every owner, agent, or superintendent of a distillery is hereby required, within ninety days, to remove from his distillery the meters the use of which is hereby discontinued.
    
      The meters known as sample-meters, and the automatic meters adapted for use as sample-meters, invented by Isaac P. Tice, are hereby adopted and prescribed for use at distilleries ; and every owner, agent, or superintendent of a distillery is required, within ninety days, to furnish and attach, at his own expense, such meters, of proper size, construction, and capacity, for use at his distillery, and to furnish all the pipes, materials, labor, and facilities necessary to complete such attachment in accordance with these regulations.
    In order to adapt automatic meters 2, 3, 4, and 5 for use as sample-meters, it will be necessary for the distillers to have the tipping cans hung anew, and a sample-receiver provided in the bottom of the meter-box, the same as in the sample-meters “A” and “B;” or to have a cylindrical vessel of copper, large enough to hold the reserves of a ten days’ running period, inclosed in a wooden case, attached to the side of the meter-box in close connection, for the purpose of receiving samples. This vessel will be constructed and attached in accordance with directions and a drawing to be supplied to collectors from this office. The outlet, for drawing off the sample-reserves for subsequent use in the ascertainment of temperature and average strength, must also be, as in “A” and “B,” by faucet and lock.
    Until this attachment is made, when only high wines are passed through the meter, the average strength of spirits for the meter-report will be ascertained by the hydrometer and the thermometer from the spirits in the cistern each time of drawing off.
    The meters hereby discontinued, being the property of the distillers, may be by them sold, to be adapted for use as sample-meters. On removing the pipes connecting the “credit” meter (now discontinued) at the doubler with the “debit” meter at the worm, all openings must be effectually closed, as provided in section 16 of the act of July 20, 1868.
    Any meter hereafter adopted and prescribed by the Commissioner of Internal Revenue for attachment and use in distilleries, as well as the sample-meters and automatic meters adapted for use as sample-meters hereby prescribed, must be attached and adjusted under the supervision of officers detailed by the Commissioner ; the understanding being that neither the Government of the United States, nor any Department or officer thereof, incurs any liability for or on aecouut of said meters, or the attachment, adjustment, or repair thereof.
    Whenever any owner, agent, or superintendent of a distillery shall have procured a meter for use at his distillery, and shall be prepared to have the same attached for use, he shall notify the collector of the district thereof; and shall, in such notice, also state the capacity of each still in his distillery in cubic feet, and the utmost possible produoing-capacity thereof per minute; that is, the greatest possible quantity of spirits that can pass from the worm in that time.
    The distiller, in applying to the manufacturer or other person for a meter, should show the cubic contents of the doubler, the outside diameter of the worm at its lower extremity, the height and diameter of the tank in which it is placed, and the material of which the still, doubler, and tank are constructed. The diameter of the main pipe leading from the still to the doubler, as well as of the charging and discharging and blow-off pipes, including the pipe used for discharging the doubler, must also be given, together with a description of the foundations upon which the still, doubler, and condenser are respectively supported. If the still is provided with collapse-valves, their, number and diameter must also be stated.
    Each meter must be attached to the tail-pipe of the worm. When a separation of high and low wines is made, a separator must be placed between the worm and the meter, the high wines" only passing through the meter, the low wines being carried directly to the low-wine receiver or the doubler. Wheu, by the process of distillation, no high wines are produced, no separator is required, and the entire quantity of the singlings will pass through the meter for registering weight of volume and depositing a sample for strength.
    A daily report must be made by the storekeeper in charge of each distillery to the assessor of the district, setting forth the indications shown by the meter at the hour when the distillery ceases to operate for the day. He must, at the time of taking the meter-indications, draw off the entire contents of the sample-receiver, when attached, and ascertain and report the true per cent, thereof. And each assistant assessor who has a distillery in his division will examine each meter whenever he visits the distillery, and report to his assessor the indications of tit© meter, as above directed. And assessors, in making their monthly computation on Form So. 89, will nse the information thus obtained in determining the quantity produced.
    The storekeeper will also ascertain and report to the assessor the average strength of the spirit's in the receiving-cisterns at each time of drawing off. This information will be embodied in his meter report.
    The following form will be used in making reports of the indications of meters. The names, dates, and figures must be filled in with the pen.
    The formula for the computations is as given below:
    Meter report.
    Directions eor testing- meters when attached to a DISTILLERY.
    The officer detailed should see to the measurement personally, as well as to obtaining the average proof of each run.
    These rules, regulations, and orders supersede all former regulations and instructions upon the same subject, aud will be enforced until changed by competent authority.
    O. DELANO,
    
      Commissioner.
    
    I.
    (Circular No. 96.)
    Treasury Department,
    Oeeice op Internal Revenue,
    Washington, June 8,1871.
    Under authority conferred by sections 2 and 3 of the act of July 20, 1808, the Commissioner of Internal Revenue, in Circular No. 69, dated September 16, 1868, and, again, in regulations, “Series 6, No. 5,” dated June 7, 1870, adopted and prescribed for use in distilleries spirit-meters invented by Mr. Isaac Tice, the same having been adopted and prescribed by the Hon. Secretary of the Treasury on the.19th day of April, 1807, and subsequently recommended for úse by the commission appointed under the joint resolution of Congress approved February 3,1868.
    It having been ascertained by experience that these meters, as a class, do not fully answer the purpose for which they were intended, their use is hereby discontinued, and all existing orders prescribing the same are hereby revoked. All meters attached to distilleries may be detached.
    The meters being the property of distillers, they will be permitted to dispose of them as they may desire.
    A. PLEASONTOU,
    
      Commissioner.
    
    At the request of the claimants the following letters, circulars,, and documents are added to the findings:
    K.
    (Issued, before tho passage of the act of July 20, 1868, oh. 186, under act of March 2, 1867.)
    TheasuRY Department,
    Office of Internal Revenue,
    Washington, April 17,1867.
    Sir: The Secretary of the Treasury, having decided to adopt the meter invented by you, and to prescribe the same for use in distilleries, you are hereby directed to proceed with their construction, provided you are willing so to do, upon the following conditions:
    First. Each set of meters will be tested by an officer detailed for the purpose before being removed from the factory, and again after being finally connected with the distillery, and no meter will be accepted which is not found to work satisfactorily when subjected to these tests.
    Second. Public notice will beimmediately given of theadoption of this meter, and distillers will be required to make application to the collector as required by the statute, and to furnish adequate security for payment for such meter in the event of its being supplied, and as soon as the number thus making application can be ascertained you shall be advised.
    Third. You will proceed immediately with the construction of the first set of meters, which shall be of such dimensions as to be suitable for use in a distillery of the medium capacity, for which it is intended to provide, and as soon as the same shall be completed and inspected, which shall be attached to a distillery to be designated by this office, and which shall be as near the place of manufacture as can be conveniently selected, and if at the end of one month from the time it is attached to the distillery there shall not have appeared sufficient reason for the Government to decline the farther use of the meter or system, the meter will be accepted, and the distiller will be required to pay for the same. Pending this trial, you will.be at liberty to proceed with the construction of other meters, provided it is clearly understood that in the event of the failure of the experiment above required with the first meter, you shall not be entitled to any pay, or to any claim upon the Government, for any expenses which you may have incurred.
    Fourth. The Secretary of the Treasury holds himself at liberty at any time to adopt any improvement or modification o'f the meter or system, or at any time to revoke the order adopting the meter and to discontinue their manufacture on behalf of the Government. If the first meter shall prove successful when subjected to the tests above set forth, and the Government shall subsequently revoke the adoption of the meter and order a discontinuance of proceedings, you will be paid such sum as may be determined upon in the manner hereinafter stated for all instruments which you may have completed or have in process of completion at the time of such revocation, provided that at no time shall you have more than twenty sets in process of manufacture at any one time unless direction shall be given hereafter for the manufacture of a larger number.
    Fifth. Three competent persons shall be selected, one by the Secretary of the Treasury, one by the Commissioner of Internal Revenue, and one by yourself, who shall together examine into the actual cost of the construction of the meter, including interest oh necessary outlay and the cost of attaching the same to a distillery; and who shall also determine what amount shall be added to such cost in order to furnish a proper remuneration for the invention and manufacture of the meter. When the price of the first meter is thus determined, it shall form the basis for a price of other meters of similar capacity until such time as a reexamination shall be made, which may be done at any time at theinstance either of theGovernmentorof yourself. Itisunder-stood that in every case the expense of transportation and of attaching and of superintending the attachment of the meter will be added to the price fixed upon, as at the place of manufacture.
    Sixth. If any distiller who has made application for a meter shall fail to put his distillery in operation immediately after the meter is attached, so that it will be impossible to test the meter in actual operation, or shall decline to have it affixed upon completion, he will be required to pay for the meter precisely as if it had been tested and found to work successfully. The meter will then be tested whenever the distillery commences operations, and if not found to work satisfactorily the distiller will be compelled to suspend .operations until the defect is cured, at his expense.
    Yery respectfully,
    B. A. ROLLINS,
    
      Commissioner.
    
    Isaac P. Tice, Esq., ,
    
      New Yorlc City.
    
    Approved.
    H. McOULLOOH,
    
      Secretary of Treasury.
    
    APRIL 18, 1807.
    L.
    The printed form referred to in findings 2 and 3, and the same specified in Form 7 of the regulations, as follows, is inserted at the request of both parties :
    UNITED STATES INTERNAL REVENUE.
    EORM OE APPLICATION BY DISTILLERS EOR A METER.
    -, 186 — .
    Application is hereby made by-for a meter to be attached to-distillery at-, county of-, and State of-; and — he — hereby declare — that the following statement relative to-distillery is accurate in every particular, viz: That the still is made of-; that the doubler is made of-; that the still has-chambers; that the greatest capacity for production during 24 hours is —;-gallons ; that the greatest discharge of gallons per minute, when working with greatest rapidity, is-gallons; that the material used for distillation is-; that the exact outside diameter of the worm at its lower extremity is -7-inches; that the diameter of the main pipe from still to doubler is-inches; that the diameter of charging-pipe is -inches; that the diameter of the discharging or blow-off pipe is-inches; that the diameter of the pipe used for discharging the doubler is-inches j that the dimensions of the still are --feet-inches by-feet-inches; that the dimensions of the doubler are-feet-inches by-feet-inches; that the height of the worm tank is-feet-inches, and the inside mean diameter is-feet -inches ; that the stills are supported by a -foundation ; that the number of collapse-valves is-; and that the diameter of each is-.
    (Signed) -. To ----,
    Collector-district of-.
    Noth. — Any misstatement in regard to any of the above points may lead to-extra expenses and delay at the time of the attachment of the meter, therefore extreme caution is indispensable.
    When it is possible, state the street and number of the distillery.
    M.
    (Special No. 54. — Issued under the act of March 2, 1867.
    Treasury Department,
    Oeeioe oe Internal Revenue,
    
      Washington, D. 0., April 19,1867.
    Rotice is hereby given that the Secretary of the Treasury has adopted and prescribed for use in distilleries a meter invented by Mr. Isaac P. Tice, of Hew York, and that regulations for the use of such meter will be issued in a few days.
    Each collector will notify every distiller who applies to make payment of the special tax for the year ending May 1,1868, that he will not be allowed to continue in operation after the 15th day of May, unless he shall before that time have made application for a meter, and accompanied his application with adequate security for the payment of the necessary expense, which will probably vary, according to the size of the distillery, from $600 to $1,600.
    E. A. ROLLINS,
    
      Commissioner.
    
    N.
    (Circular No. 63.) — Issued under act oí March 2, 1867.
    
      Regulations for supplying distilleries with meters, and securing their proper attachment.
    
    Treasury Department,
    Oeeice or Internal Revende,
    
      Washington, April 26, 1867.
    Under the fifteenth section of the act approved March 2,1867, the Secretary of the Treasury is authorized to adopt, procure, and prescribe for use such meters or other means for ascertaining the strength and quantity of spirits subject to tax, or for the prevention or detection of frauds by distillers of spirits, as he may deem necessary; and under this authority the Secretary has adopted and prescribed for use the meter and system of attaching the same invented by Mr. Isaac P. Tice, of New York.
    The statute further provides that whenever the Secretary of the Treasury shall adopt and prescribe for use any meter or meters it shall be the duty of every owner, agent, or superintendent of a distillery to make application to the collector of his district for such meter or meters, to be used in his distillery ; and the same shall be furnished and attached to the distillery at the expense of the distiller, whose duty it shall be to furnish all the pipes, materials, labor, and facilities necessary to complete such attachment, in accordance with the regulations of the Commissioner of Internal Revenue, who is further authorized to order and require such changes of or additions to distilling-apparatus, connecting-pipes, pumps, or cisterns, or any machinery connected with or used in or on the distillery premises, or may require to be put on any of the stills, tubs, cisterns, pipes, or other vessels, such fastenings, locks, or seals, as he may deem necess'ary.
    The system which has been adopted involves the use of a double-meter at the end of the worm through which the entire product of tlie still will pass, the quantity of high wines being indicated upon one register and the quantity of low wines upon another. The second meter will be placed upon the doubler in such position as to register the quantity of low wines carried back to the doubler for redistillation. If the still is provided with such attachments that no low wines are produced, and the distiller is prepared to report as taxable the entire product of the still, the second meter will not be required.
    Meters will be constructed of different capacities, the smallest ones being suitable for use in distilleries where the most rapid flow of spirits cannot exceed four gallons per minute, and the largest which it is now proposed to construct having a capacity for measuring forty gallons per minute, and there will be two intermediate sizes.
    An arrangement has been made with the inventor, under which he undertakes to furnish the meters at prices to be determined by a committee of three persons, two of whom are to be designated by the Government and one by hi mself. It is believed that the price of the set of instruments, when completed at the factory in Hew York, will be not more than six hundred dollars for each pair of the smallest capacity, and eight hundred, ten hundred, and twelve hundred dollars for pairs of the other three sizes, respectively.
    Evoy o vner of a distillery, in making his application to the collector of his district for a meter, must state the capacity of his still in cubic feet, and the utmost possible producing-capacity per hour. The producing-capacity here referred to must not be confined to high wines merely, but must show the entire quantity of spirits, whether high or low, which can be produced from the still within the time specified. The application must further show the cubic content of the doubler, and the outside diameter of the worm at its lower extremity, the height and diameter of thé tank in which it is placed, and the material of which the still, doubler,, and tank are constructed. The diameter of the main pipe leading from the still to the doubler, as well as of the charging and discharging or blow-off pipes, including the pipe used for discharging the doubler, must also be given. There is also required a description of the foundations upon which the still, doubler, and condenser are respectively supported. If the still is provided with collápse-valves, their number and diameter must also be stated.
    
      The collector receiving an application will, by himself or his deputy, make such examination as may be necessary to verify the correctness of the description given in the application, and will transmit the application to this office, together with his certificate of its correctness. The collector will at the same time state the means of access to the distillery, whether by railroad, steamboat, or eaual, and with what points the distillery is connected by either of these modes of communication. If there is any person carrying on the trade of coppersmith in the immediate vicinity, the collector will state the fact; and if not, he will state the distance to the nearest point at which the service of such artisan can be procured.
    Every owner of a distillery will be required, at the time of making application, to deposit with the collector a sum in money or in United States bonds equal to the price named above for the size of meter required, with an addition of twenty-five per centum thereto, as a guarantee of the good faith with which the application is made, and to secure the contractor prompt payment upon the completion of the work.
    Meters will be attached under the joint supervision of the manufacturer and of an officer who will be specially detailed for that purpose. The doubler and condenser will be required to be supported upon blocks of glass of not less than six inches in height, unless the vessels are of such capacity as to render it more feasible to suspend them from above. The pipe leading from the still to the doubler will be required to be fitted with a valve which will open with the pressure of the steam, so that it will close when the still is not in operation, and the discharge-pipe from the doubler will be fitted with another valve, so arranged as to open and close simultaneously with the valve upon the other pipe.
    But one opening can be allowed into the doubler or into the condenser, and in every case this opening must be closed with a cover or door, which must be locked, and the lock fitted with a seal to be inserted by the collector of the district, who will retain the key. The doubler and condenser, as well as any auxiliary vessels which may be used, must be so placed as to leave sufficient room on all sides to allow an officer to pass around and inspect the sides from time to time.
    The work of constructing the meters will be pushed forward as rapidly as possible, and it is believed that a sufficient number to supply all distilleries continuing in operation will be completed before the 1st day of November. In the mean time, every distiller who has made application for a meter, and who has complied with all other requirements of the statute, will be allowed to continue until such time as the Government is able to furnish a meter to be attached to his distillery 5 but no distiller will be allowed to continue after the loth day of May, 1867, unless he shall before that time have made application in the .manner prescribed. Should any distiller continue in operation after that date, without having complied with this requirement, it will be the duty of the collector to take immediate measures for a condemnation of the distillery and the enforcement of the penalties, as provided by section 23 of the act of March 2,1867.
    As fast as the meters are successively completed the distilleries to which they are to be attached will be designated by the Commissioner, and all necessary special instructions will be given.
    Distillers of apples, grapes, and peaches, exclusively, will be exempted from the requirements of this circular.
    E. A. EOLLINS,
    
      Commissioner.
    
    O.
    
      Letters with whioh the applications mentioned in findings 2 and 3 were transmitted to Mr. Tice.
    
    Treasury Department,
    Oeeice op Internal Eevenue,
    Washington, October 16, 1868.
    Sir: I inclose to you herewith meter-applications made under the act of July 20bh, 1833, by distillers, as follows:
    Joseph S. Finch, of the 22nd Penn.
    T0.1 will please furnish these distillers with meters, in accordance with their applications, as soon as practicable.
    Very respectfully,
    E. A. EOLLINS,
    
      Commissioner.
    
    Isaac P. Tice, Esq.,
    
      No. 314 3d Avenue, New Yorlc City.
    
    
      Treasury Department,
    Oeeice of Internal Revenue,
    
      Washington, March 25, 1869.
    Sir : I inclose to you herewith meter-applications as follows, funds to pay for the meters having been deposited:
    Joseph S. Finch & Co., 22nd Penn, district.
    Very respectfully,
    T. HARLAND,
    
      Deputy Commissioner.
    
    Isaac P. Tice, Esq.,
    314 3d Avenue, Hew Yorlc City.
    
    Conclusions of Law.
    On the facts found by this court the claimants are not entitled to recover, and their petition must be dismissed for the reasons stated in the opinion of the court.
    
      Mr. W. Penn Clarice and Mr. Lewis Abraham for the claimants:
    Claimants have a right to demand specific performance of the contract, because “ if a man has performed a valuable part of an agreement, and is in no default for not performing the residue, it is reasonable that he should have a specific execution on the other part of his contract, or at least should recover back whatever he has paid. ” (Story’s Eq. Jur,, § 772.) For so much of the negligence or breach that may be the fault of the Government’s officer let them look to his bond. They are well protected by statute. For so much that may be the fault of its contractor, presumably, it has protected itself so that recovery can be had by the ordinary remedy. Neither of these parties can be pursued by claimants. No right of action has accrued to them against either of them, and none ever can. There is no mutuality of contract between them. They are necessarily remanded to the principal, and rely on the opinion often expressed by this court, that “ the rule regarding the effect of contracts, when the United States are a party, is the same as between man and man.” (1 Nott & Huntingdon, 18; Broolcs’s Case, 2 C. Cls. R., 180; Smoot’s Case, 8 O. Cls. R., 96.)
    The United States has no prerogative to claim one thing on contracts as creditors and another as debtors. (Thorndike’s Jase, 2 Mason, 20.)
    
      The United States as a body-politic are bound by the acts of her agents acting within proper sphere. (United States v. Sille-gas, 3 Wall. O. 0., 70.) They are responsible even on contracts made by the head of a Department. (Gideon v. United States, 19 Law Rep., 89.)
    The meter being cia creation of Congress,” as shown, the Government must be looked to as sponsor.
    
      Mr. A. ID. BoMnson (with whom was the Assistant Attorney-General) relied on the brief used by the defendants in Saussefs Case, 11 O. Cls. R., 538.
   Richardson, J.,

delivered the opinion of the court:

The facts in this case, aside from the regulations, instructions, and circular-letters of the Commissioner of Internal Revenue relating to meters generally, are few and simple.

In the year 1868 and subsequently the claimants had two distilleries, numbered 1 and 4, in the twenty-second collection district of Pennsylvania. Upon printed blanks furnished by the Commissioner to all distillers thejr made applications through the collector of the district, on the 9th and 23d of October of that year, for meters for distillery No. l,and therewith made with the collector the deposit required by the regulations for the price of the same, $2,050; and on the 12th of March, 1869, for meters for distillery No. 4, with the required deposit for the price, $2,100. These applications were duly forwarded to che Commissioner, and by him transmitted to Mr. Cice, the manufacturer. The meters thus applied for were delivered at the distilleries, those for No. 1 December 19,1868, and those for No. 4 July 26,1869. The certificates of deposit for said sums of money issued upon ordering the meters were sent bythe collector to Mr. Tice and were received by him. The meters for distillery No: 1 were never set up, as the distillery ceased to run long before any person went there to make the attachment, and those for No. 4 were set up and attached about September 1,1869, hut never worked properly. It does not appear that the meters were tested before being shipped from the manufactory, or that ary officer was detailed to supervise their attachment or to test then after attachment, or that daily reports were made by the storekeeper to the assessor setting forth the indications as shown bj the meters at noon, or that meter-indications were considered by the assessor in making his monthly computation of the product of said distilleries.

The legal questions which arise relate to the duties, rights, and liabilities of the respective parties, under the statutes and the regulations, circulars, and instructions of the Commissioner of Internal Eevenue respecting distilleries and meters and the object and use of meters, in connection with these facts. It is necessary, therefore, to make a careful examination of those statutes and regulations.

By the Act July 20, 1863, (16 Stat. L., 125, chap. 186,) which was passed by Congress before the transactions set forth in the findings occurred, it was provided, among other things, in section 1, that there shall be levied and collected on all distilled spirits on which the tax prescribed by law has not been paid a tax of 50 cents on each and every proof-gallon, to be paid by the distiller, owner, or person having possession thereof, before removal from distillery warehouse,” and in section 2 “that proof-spirits shall be held and taken to be that alcoholic liquor which contains one-half its volume of alcohol of a specific gravity of seven thousand nine hundred and thirty-nine ten-thousandths (.7939) at sixty degrees Fahrenheit.”

In order to primarily determine the quantity of spirits produced at any distillery liable to be taxed, the following requirements were made, some for precautionary purposes and some for direct application :

By section 15 it was enacted “ that every distiller shall provide, at his own expense, a warehouse, to be situated on and to constitute a part of the distillery premises, to be used only for the storage of distilled spirits of his own manufacture, * * * and such warehouse, when approved, * * * is hereby declared to be a bonded warehouse of the United States.” * *
By section 16, “The owner, agent, or superintendent of any distillery, established as hereinbefore provided, shall erect, in a room or building to be provided and used for that purpose and for no other, * * two or more receiving-cisterns, each to be at least of sufficient capacity to hold all the spirits distilled during the day of twenty-four hours, into which shall be conveyed all the spirits produced in said distillery, * * * and on the third day after the spirits are conveyed into such cisterns, [or, on application to the assessor, at any time previous to the third day,] the same shall be drawn, off into casks under the supervision of such gauger in the presence of the storekeeper, and be removed directly to the distillery warehouse.”
By section 23, All distilled spirits shall be drawn from the receiving-cisterns iuto casks, * * and shall thereupon be gauged, proved, and marked by an internal-revenue gauger, * * * and shall be immediately removed into the distillery warehouse.” * *

By section 19 the distiller was required, on the 1st, 11th, and 21st of each month, to render to the assistant assessor an account, taken from his books, of the quantity and kind of materials used for the production of spirits each day, and the number of wine-gallons and of proof-gallons produced and placed in warehouse; and this return was to be under oath, and any false entry subjected the distiller to penalties. By section 53 the gauger was required to make a daily return to the assessor as well as collector of all articles gauged and proved or inspected by him, and for whom, and the number and kind of stamps used by Mm. The storekeeper in charge of the warehouse (§ 21) was to record in a book a daily account of all the meal and vegetable productions or other substances brought into the distillery or on the premises, to be used for the purpose of producing spirits, and of all spirits drawn from the receiving-cistern, and some other items. By the regulations he, too, reported all these facts from his books to the assessor monthly.

Upon the receipt of the returns from the distiller, three times a month, the assistant assessor was, by the instructions, to make a personal examination of the books and premises, and of the accuracy of the entries, and then transmit the returns to the assessor.

Up to this point in the proceedings the distiller had become liable to the tax on all spirits that had been reported as gauged by the gauger, and included in his own sworn return of the quantity produced, and no more, his return being regarded as conclusive unless some error or fraud should be detected.*

The next step was provided for by section 20. On the receipt of the distiller’s first return in each month the assessor shall inquire and determine whether said distiller has accounted in Ms returns for the preceding month for all the spirits produced by him; and to determine the quantity of spirits thus to be accounted for the whole quantity of materials used for the production of spirits shall be ascertained, and forty-ñve gallons of mash or beer brewed or fermented from grain shall represent not less than one bushel of grain, and seven gallons of mash or beer brewed or fermented from molasses shall represent not less than one gallon of molasses. In case the return of the distiller shall have been less than the quantity thus ascertained, the distiller or other person liable shall be assessed for such deficiency.” * * *

We omit any reference to the manner of paying the tax as not material to the issues here raised.

Thus the quantity to be taxed was primarily determined by gauging the spirits as they were transferred from the cisterns to the casks. But as the spirits might remain till the third day in the cisterns, it was possible for the distiller, by fraud, to withdraw portions therefrom before gauging and so avoid the tax to a greater or less extent, or they might be under-measured by the gauger; and the principal method relied upon to detect such fraud was by the calculations of the assessor, under the twentieth section, and his comparison of the quantity accounted for by the distiller with the capacity of the distillery and the quantity of materials used.

But in the act of 1868 there was inserted, in section 2, (15 Stat. L., 125,) a further provision, intended to afford additional protection to the G-overnmént and to enable frauds to be more readily detected, as there was in the previous act of 1867. (14 Stat. L., 481, chap. 169, § 15.) It was in these words: “And the Commissioner of Internal Revenue, for the prevention and detection of frauds by distillers of spirits, is hereby authorized to adopt and prescribe for use such hydrometers, saccharometers, weighing and gauging instruments, meters, or other means for ascertaining the quantity, gravity, and producing capacity of any mash, malt, or beer used or to be used in the production of distilled spirits, and the strength and quantity of spirits subject to tax, as he may deem necessary.” * * * And by section 3 it was enacted “ that whenever the Commissioner of Internal Revenue shall adopt and prescribe for use any meter, meters, or meter-safes, it shall be the duty of every owner, agent, or superintendent of a distillery to furnish and attach, at his own expense, such meter, meters, or meter-safes as may have been prescribed for use at his distillery, and to furnish all the pipes, materials, labor, and facilities necessary to complete such attachment, in accordance with the regulations of the Commissioner.” * * *

On the 16th of September, 1868, the Commissioner issued a circular, of which the parts material to the present consideration were as follows:

“ Notice is hereby given that the Commissioner of Internal. Revenue has adopted and prescribed for use in distilleries the spirit-meter invented by Mr. Isaac P. Tice, of New York.”
“The meter adopted being the invention of Mr. Tice, and secured to him by letters patent, can only be made by^him or under his license; and in order to guard against an unreasonable price being demanded of those who are bound by law to purchase it, the prices of the several sizes, under an arrangement made between Mr. Tice and the Government, have been determined by a committee consisting of * * * all practical and skilled machinists, two of whom were designated by the Government and one by Mr. Tice, and the sums hereinbefore named are the prices agreed upon by them for the meters delivered at the place of manufacture.” * * *
“ Under the provisions of section 3, distillers are required to procure and attach meters, and in making their applications therefor they must state the capacity of the still in cubic feet, and its utmost possible producing-capacity per minute.” * * *
“ This application will be made on Form 7, as heretofore prescribed, which will be furnished by the collectors of the several districts. At the time of making the application the applicant will furnish to the collector of his district a certificate of deposit in a United States depository for the amount of the price of the meter or meters, payable to the order of Mr. Tice, and the collector will certify upon such application that he has received such certificate, and forward the application to this office for transmission to Sir. Tice.”
“ Upon the delivery of the meter to the distiller, the collector will at once transmit the certificate of deposit to Mr. Tice at his address, 314 Third avenue, New York City.”
“ Meters will be attached under the joint supervision of the manufacturer, or his agent, and of an assistant assessor, who will be specially detailed for that purpose by the assessor of the district, who will report the name of such assistant to this office.”
“The expenses of transportation and attachment of the meters, and of any changes required to be made in the distillery, are to be paid for by the distiller.”
“ So long as meters are ready for delivery, distillers must procure and attach them. Should any distiller refuse to procure and attach a meter, it will be the duty of the collector to close the distillery, and forthwith institute the proper proceedings for its condemnation and the enforcement of the penalties as provided' by law.” .

On the same day the Commissioner addressed a letter to Mr. Tice, notifying him of the adoption of his meter and directing him to proceed with the construction, provided he was willing to do so upon the conditions therein set forth, and among them were the following:

“ First. Samples of the meters A and B, and of the. single and double counter-meter, will be kept, and each set of meters will be tested and compared with the sample by an officer detailed for that purpose before being removed from the factory, and again after being finally attached to the distillery; and if any meter, upon being so attached, shall prove to be defective in any respect, the defective part shall be replaced or a new meter furnished without additional expense to the distiller.”
“ Fifth. You are to furnish the meters in good order and condition, ready for transportation, at the prices fixed by the committee, which are as follows:

One meter was required to be attached to the tail of the worm of the still, and, in case of the manufacture of high wines, another was attached to the doubler, so as to register all the spirits which came in a manufactured state from the still; and if correctly kept, and the proper calculations made, they would give the exact quantity of spirit which passed in the' cistern. The storekeeper, a different officer from the ganger, who, as we have seen, measured the spirit as it passed from the cistern into the casks, was required by the regulations to make a daily report to the assessor of the indication of the meter at 12 o’clock meridian, and the assistant assessor was required to render a like report whenever he visited the distillery. And the instructions were that the assessors “in making their monthly computation [under section 20, above cited] will use the information thus given in determining the production;” that is, in determining whether or not the distiller had accounted in his returns for all the spirits produced.

Notwithstanding the requirements of the Commissioner, the meters generally did not prove a complete success, either because of the trouble and expense they caused to the distillers, the additional trouble to the storekeeper, assessor, and other officers, the reductiqn of the tax on spirits from $2 to 50 cents a gallon, thereby lessening the object and the attempts to commit fraud, or for other causes, and on the 8th of June, 1871, the then Commissioner issued a circular in these terms: “ It having been ascertained by experience that these meters, as a class, do not fully answer the purpose for which they were intended, their'' use is hereby discontinued, and all existing orders prescribing the same are revoked. All meters attached to distilleries may be detached. The meters being the property of distillers, they will be permitted to dispose of them as they desire.” And in June, 1872, so much of sections 2 and 3 of the act of 1868 as related to meters was repealed, and the further use of meters was finally abandoned by law. (17 Stat. L., 239.)

There were circulars and instructions from the Commissioner of Internal Kevenue of different dates, which we shall have occasion to refer to hereafter; but we have cited enough from the statutes and regulations to show distinctly the object of introducing the meter, for whose benefit it was to be used, and the respective duties of the distillers and the officers of the" United States in relation thereto. They may be thus recapitulated :

1. The meter was for the use and benefit of the defendants, to enable them to prevent and detect frauds by distillers, and for no other purpose, and its method of use was an additional means afforded the assessor of determining with more or less accuracy whether the distiller had accounted in his returns for all the spirits produced by him, or whether some had not been abstracted from the cistern before being gauged, or the gauger had fraudulently under-measured and under-registered the quantity. If not used by the officers, the defendants lost the benefit of one check upon the distillers, and that was all.

2. It was the duty and the obligation of the distiller to furnish and attach, at his own expense, the meter prescribed, and to furnish all tbe pipes, materials, and labor necessary to complete the attachment. To him it was an expense and a tax imposed by statute as a condition to his right to continue his business, and if he omitted to comply with the terms of the law a penalty might have been exacted of him under section 96, or the officers would close the distillery.

3. The duties of the public officers were :

First, those for the benefit of the defendants¡. — An officer was to be detailed to test the meters before removal from the manu-factory, and again after being finally attached, and some officer was to supervise the attachment. The storekeeper was to register the indications of the meter daily and report to the assessor ; the assistant assessor was also frequently to examine and report the indications of the meter, and the assessor was to use those reports, in his computations, to detect frauds.

Second, those for the benefit of the distillers. — The collector was to receive applications for meters, take a certificate of deposit in the name of Mr. Tice for the price at which the manufacturer had agreed to furnish them, to forward the applications to the Commissioner, by whom they were to be transmitted to Mr. Tice, and, upon the delivery of the meters to the distiller, the collector was required to “at once transmit the certificate of deposit to Mr. Tice, to his address in New York.” That was all the Commissioner undertook to do for the distiller, and was the only contract, express or implied, that was made with him by the defendants. And this was wholly gratuitous on the part of the Commissioner, and for the sole benefit of the distillers, to protect them from extortion by the manufacturer, who had a patent on his meter, and but for the precaution of the Commissioner in making an arrangement as to price might have compelled distillers to submit to unreasonable prices or great extortion. But this did not preclude distillers from purchasing from the manufacturer directly at any price, or from purchasing of other parties at second hand. Distillers were by law to furnish the meters, and the law would have been complied with, however they obtained them. The distillers did, however, incidentally gain another advantage by applying for meters through the collectors. When they made application to the collector, and made a deposit of the price, they complied with the regulations, and would not be proceeded against for not having otherwise furnished and attached the meters required by law. Until the meters arrived they would have all the benefits which would accrue to them from the instruments themselves without the expense of attaching them, and, so far as they were concerned, it would be to that extent more profitable that no meter should be delivered.

Upon these provisions of the statutes and regulations, principally, the claimants’ case must stand or fail.

The action is founded ou contract, and the breaches set forth in the petition are of two classes:

1. That no assistant assessor was ever officially detailed to supervise the attachment of meters at their distilleries; that no notification of any such appointment or detail ever reached them ; that no assistant assessor ever did superintend the attachment of said meters or the adjustment thereof; that no complete attachment or perfect adjustment of said meters was ever made; and, furthermore, that said meters were never used at their distilleries for the prevention of frauds,” or ascertaining the quantity of spirit subject to tax.

And the facts found substantially support these allegations. But every one of these acts which were omitted or neglected by the defendants’ officers were to be done for the benefit of the defendants and not for the claimants. The requirements of the regulations that the meters should be tested, their attachment and adjustment supervised, and the meters used for the prevention and detection of fraud by the distillers, were not contracts with the claimants, but were directions to the defendants’ officers, the neglect of which might work all the harm and loss to the Government which the statute authorizing the adoption of meters was intended to prevent, and could not injure the claimants. It was of no object to the claimants to have these things done. If the defendants’ officers had insisted upon the attachment of the meters, and supervised the same, the claimants would have been subjected to so much additional cost. The regulations specify that “ the expenses of transportation and attachment of the meters, and of any changes required to be made in the distillery, are to be paid by the distiller,” and “ distillers must furnish all lumber and other materials necessary for the attachment of the meter, and such workmen and assistants as may be required.” To that extent, then, the claimants were benefited by the acts complained of.

This court, as well as the Supreme Court, has repeatedly held that the United States was not liable for the wrongful acts of their officers, which are not breaches of contracts, even when those acts cause loss and damage to other parties; and it is a novel proposition to claim that the Government is liable for the neglect of duties by public officers when such neglect works, as in this case, not only no injury to the claimants, but in fact a pecuniary gain to them, while it may have subjected the defendants to great loss. The proposition really is, that the defendants shall beheld liable to others for injuries and losses inflicted on themselves by their own officers. And still more novel is the claim that the defendants are liable to a distiller because their officers did not use the meters to prevent and detect his frauds. If he were not committing frauds their use would be of no importance, and it he were committing frauds their detection would be the last thing he would desire. The claimants did not pay the money, now sought to be recovered, in consideration that the public officers would do their duty|to the defendants in the particulars named, and the defendants never contracted with them that those officers should perform their duty, -ijsuo» jou soop jo pounqdaioo sjou oqj op oj oiupuj eqj os pun tute a failure of consideration entitling the claimants to recover back the money paid.

2. The petition also sets forth allegations that the money for the meters was paid to the collector upon the implied contract that the United States would supply, through said collector, merchantable and perfect meters for use in and about the distillery premises, for the purposes set forth in the laws and regulations, and of value equal to the amount deposited; and they declare that the meters received by them were valueless and useless.

Yf e find n o such contract. The money was paid that the manufacturer should furnish the meters required for the claimants’ distilleries by the law's and regulations, in order that they might be permitted to carry on their business; for without them their distilleries might be closed and they subjected to penalties. The statute required distillers to furnish meters not for their own use, but for the use of the defendants. The defendants undertook no more than to have their officers receive the application for the meters, with a certificate of deposit in the name of Mr. Tice, the manufacturer, for the price, to transmit the application at once to the manufacturer, and to forward to him the certificate of deposit as soon as the meters were delivered at the distillery. As soon as the deposit was made the distillers were considered as having complied with the statute, and if they were not complained of or disturbed it was immaterial whether the meters ever arrived or not, and if they arrived it was equally immaterial to them whether or not they were perfect for the purpose intended — the prevention and detection of frauds by themselves. And it does not appear that the meters in this case were unmerchantable, valueless, or useless. They were never used, because the defendants’ officers neglected the duties they owed to the Government, and in 1871 all meters were abandoned by the Commissioner, because it had been ascertained by experience that they, as a class, did not fully answer the purpose for which they were intended; but this does not establish the fact that the meters delivered to the claimants were either unmerchantable, valueless, or useless, and we have no other facts on that subject.

The counsel for claimants in their brief maintain that the deposits made with the collector were unwarrantably forwarded to Mr. Tice,, the manufacturer, too soon, and that the collector was bound to retain them until the meters were attached to the distilleries and tested, and that the defendants, through their officers, have had the claimants’ money and have misapplied it.

• In our opinion these propositions are not supported by the facts.

The regulation of September Id, 1868, provided that “at the time of making the application [for meters] the applicant will furnish to the collector of his district a certificate of deposit in a United States depository for the amount of the price of' the meter, payable to the order of Mr. Tice.” * * “Upon the delivery of the meter to the distiller the collector will at once transmit the certificate of deposit to Mr. Tice, at his address, 314 Third avenue, New York City.” In the regulation of March 30,1869, these provisions were again promulgated in exactly the same language as before, except that the certificate of deposit wras required to be forwarded to Mr, Tice “ upon the receipt of the bill of lading.” Among the regulations of that date are the following instructions:

“ Under the provisions of the law the distiller is required to furnish and attach meters at his own expense, and also to-furnish all pipes, materials, labor, and facilities necessary to complete such attachment. The first duty of a distiller is, of course, to procure a meter. The manufacturer is not required to furnish the meters on credit, and ought not to be expected to do so. When he ships a meter to a distiller, in accordance with the application, the manufacturer is entitled to the pay for it. The law does not require the manufacturer to attach it, but on the contrary requires the distiller to attach at his own expense.”

If, then, the regulations and instructions were obeyed, .the defendants’ officers had no money of the claimants, but they held certificates of deposit payable to Mr. Tice, and these they were required to forward to Mr. Tice as soon as the meters or the bills of lading were delivered.

Under the former law and regulations of 1867 distillers were required to deposit with the collector money or bonds as a guarantee of good faith and to secure the contractor prompt payment upon completion of the work. This plan was abandoned under the law of 1868, and the system adopted which we have pointed out.

The claimants admit in their petition that the meters for the payment of which their deposit was made arrived for their respective distilleries in December, 1868, and July, 1869, and the facts found show that those for distillery No'. 1 were delivered December 19,1868, and .those for No. 4, July 26,1869. That being the case, it was the duty of the collector at once to transmit the certificates of deposit to Mr. Tice, without waiting to have the meters attached and tested, and this he did.

• Our attention has been drawn to the circular-letter of January 8, 1869, from the Commissioner to the collectors, as follows:

“ Sm: You will forward no certificates of deposit in payment for meters delivered until the meters are attached to the distilleries, and in future you will take the certificate of deposit in your own name, changing those which have been already taken, if you can do so.”

This letter has no material application to the claimants’ case. Before it was issued the meters for distillery No. 1 had been delivered, and Mr. Tice had received or had become entitled to the certificate of deposit therefor. A month later, February 5, 1869, the Commissioner, in a circular of that date, revoked that direction to collectors, as to meters previously delivered, in these words: “ Where meters had been delivered prior to the receipt of the'instructions of January 8, collectors will promptly forward to Mr. 'Tice the certificates of deposit therefor, and measures will be taken to have them attached.” And by the regulations of March 30,1869, the whole letter was superseded and the former rules re-established with more stringent directions, as we have quoted them. So, in July, 1869, when the meters for distillery No. 4 were delivered, the instruction of January 8,1869, not being in force, the collector was right in transmitting the deposit-certificate to Mr. Tice, according to the regulations then in force. The only application which the, letter of January 8 could have to the claimants’ deposits was that it required the certificate for the price of meters for distillery No. 4, applied for March 12, 1869, to be taken in the name of the collector, but that is not material, since the collector transmitted the certificate, as required by regulations and instructions, to Mr. Tice.

In the case of Sausser v. The United States, (9 C. Cls. R., 338,) the claimant’s assignor, one McGehan, in making application for a meter for his distillery, deposited with the collector money as security for payment thereof, as he was required to do under the statutes and regulations of 1867-, then in force, and took a receipt therefor. This receipt passed to his vendee and successor in the distillery. The collector misappropriated and did not account for the money, and went out of office. Subsequently, when the meter arrived, the then collector demanded payment, and refused to recognize the receipt given by his predecessor, and the claimant was compelled to pay for the meter again or have his distillery closed. The court held that the United States was liable to refund the money thus misappropriated by the first collector. But that is not this case. Here there has been no misappropriation, the claimants have received the meters applied for, they have not been compelled to procure other meters in order to carry on their business as distillers, and their distilleries have not been interfered with.

There is another fatal‘ defect in the claimants’ case. They received the meters in 1868 and 1869, and have never returned them or offered to return them, and have them now, unless they have sold them, as they might have done at any time after delivery. We cannot presume that these meters were of no merchantable value if they were perfect, and if not perfect the purchasers should have returned them to the manufacturer, or notified him to remedy any defects. For two years or thereabout after their delivery such meters were required at all the distilleries in the United States, and therefore may have had a commercial value. And whether they were of any value to the claimants or not, they chose to keep them and not to return them-to the manufacturer.

It is one of the most familiar elementary principles of law that the purchaser of personal chattels who underbakes to rescind the purchase altogether, and seeks to recover back the whole consideration paid, as in this case, must return, or offer to return, the articles received by him. He cannot both keep the chattels and have his money refunded.

In the case of Sausser v. The United States, (11 C. Cls. R., 538,) we considered some of the questions which arise in this case, and now, after a full and careful reconsideration of the whole subject, we adhere to the views expressed in the opinion therein; and in this case, as we held in that, we hold that the claimants have no cause of action, and that their petition must be dismissed.

Peck, J.,

dissenting:

In this case, I think, the rules and regulations established by the appropriate Department in relation to distillers and the Tice meter were purposely so expressed as to lead the distillers to suppose that they were to be, and should be, protected by the United States in the expenditure of their money for- the meters, against all defects in the meters, and against any imposition of the constructor, or of the officers acting for the United States. The business of distilling was prohibited, the capital employed in that business was lost and useless to the owner, unless he should first purchase a Tice meter. He was in fact under “ duress” of the strongest character which did not extend to life or limb to deposit his money for the payment of the meter, and the Government promised that if he should do so they would undertake to protect him, and take care that the instrument which it — not he — demanded should be of benefit and useful to both; and until such instrument, to be previously examined and inspected by the defendants, was furnished and tested, they agreed to keep his money for him, or, in other words, not to pay it over. The meter could not be attached to the distillery except through or by the agents of the United States. The claimant could not help or protect himself in the' least. He was not permitted to participate in any way in the purchase of the meter, or to. judge of its quality, or fitness, or adaptation to the use for which it was designed; in plain language, it was a command to him which he was powerless to resist. It was a modified change from the language of the highwayman, “Your money or your life f in this case, it was your money for the meter, or a waste of your capital and an abandonment of your business and its pursuits. If the business was against public policy or good morals it should have been forbidden, but not tolerated or perhaps encouraged, provided it should be prosecuted under the forms of law and the protection and shield of a Tice meter.

It is plain that the meters were useless as detectors of fraud, and for this reason they were everywhere abandoned and condemned'. In this particular case only one of the meters, which proved to be defective, was ever applied to the distilleries of the claimants. The other meter was never even delivered in the manner required by or within the direction and meaning of the rules and regulations of the Department.

The defendants undertook and promised that they would, through the instrumentality of their officers, hold the money of the claimants for their security and benefit until certain obligations which the defendants assumed and declared were for their benefit, as well as for the benefit of the claimants, should be complied with by a third party; and, without this, that the money of the claimants should be kept for them. If this was not to be so, what other meaning can be connected with the transaction? If the interests of the Government were not such as to warrant the employment of its officers in the character of stake-holders, why did it interfere with the business of a citizen and not permit him to bargain for himself, at the peril of having his business stopped, compelling him to pay his money without choice or discretion of his own? Why not compel him to purchase all his machinery and material for carrying on his distillery 'of some particular individual ? This would have neen another way of discovering frauds quite as effectual at least as a Tice meter.

To say that the condemned meters were left at the disposal of the claimants, who might sell them and so get an equivalent for their money, is to feed them with stones instead of bread, is to offer them a taunt rather than a reason, tendering a sarcasm in lieu of dollars, compelling them to take as a compensation for the protection offered them useless and condemned instruments which are without value save what they may bring as wasted and useless material.

All the transactions between the Government and its citizens should have not only the appearance of fairness, but should be marked by the reality of it; all semblance of'speculation or cunning should be avoided and condemned. An attempt to shirk responsibility, if it fairly attaches to the Government, is not to be commended; honesty, as a policy merely, is more important in the conduct of public than of private affairs, and should always be regarded, and is best enforced by the example of shining marks. The citizen should not be taught by the highest power in the land, when he deals with it, that he is to encounter artifice and deception, and is to overcome these, if at all, by a resort to the same degrading expedients. An unfair government begets unfairness in the citizen, an immoral contagion is spread, until both, suffering from the taint, travel on the downward road, forgetting that “corruption wins not more than honesty,” but ruins all. Dollars, when placed in the scale against integrity and fair dealing, are certain to weaken the confidence of the people in the good faith of their Government, and they will be willing to see it destroyed. An offence against good morals can never be outweighed by pecuniary gains.

I say, without feeling any compunction for the utterance, that I do not discover in this matter between the claimants and defendants anything in the likeness of paternal or benevolent or even j ust treatment of the citizen by the Government, since it refuses to return the money of these claimants which they were compelled to trust to its keeping, which it has misappropriated, and which is now lost to them.  