
    WASHINGTON COUNTY,
    October Term, 1796.
    
    United States v. Jacob Wolf.
    
      INDEBITATUS assumsit for 96 dollars and 12 cents, being arrearages of duties on two stills owned and used for the distillation of whiskey, in the year commencing with the 1st July, 1793, and ending with the 30th June, 1794, and, in consideration of this, laying a promise on 28th November, 1794, to pay those arrearages.
    The duty imposed on stills by the act of congress was not paid in these counties, and the attempts to enforce its payment here, having excited the insurrection, and been rendered effectual, by the expedition of 1794, the secretary of the treasury, on the 17th November, 1794, considering the hardship of enforcing the payment of all the arrears of duty in these counties, from 30th June, 1791, instructed the collectors to receive entries of stills, for the year beginning with the 1st July, 1794, and ending with the 30th June, 1795, without exacting the payment of any arrears of duty except for the year immediately preceding, that is, from the 30th June, 1793, to 1st July, 1794, ascertaining those arrears by the capacity of the stills.
    In consequence of this, the collectors, though the time of entry was past, did receive entries of stills, and, at the same time, took express written promises to pay-the arrears of the preceding year. And, in consideration of entry and promise, past penalties and forfeitures were waved.
    But, afterwards, some distillers in Washington county fancied, and many were told, that, if there was no office of inspection in that county in the month of June, 1793, they were not liable to the duty for the year from 30th June, 1793, to 1st July, 1793 and, if they were not liable, their promise to pay did not bind them.
    Many distillers, therefore, who, in November, 1794, had entered their stills for the current year, and pro-
    1 U.S.L. 319
    2 U.S.L. 95.
    1 U.S.L. 321.
    2 U.S.L. 98.
    3 U.S.L. 90-1.
    2 U.S.L. 95.
    
      mised payment for the preceding, refused to comply with this promise; and, on this refusal, suits were brought against them.
    Among these was Jacob Wolf; and, at the trial of this action, the preceding circumstances were proved as to him; and proof was also made of the capacity of his stills; that they were worked in the spring of 1794, and were in the furnace in August, 1794; that there was an inspection office opened in Washington county in June, 1794, and continued in other counties of this survey; and that a demand of the arrears was made of Jacob Wolf. A loose piece of paper containing various numbers of gallons of whiskey distilled, but without dates, was offered in evidence for the defendant, but rejected, as not being a book within the meaning of the act of congress.
    
      Brackenridge and Young for the defendant.
    There is no evidence of an inspection office in Washington county in 1793, therefore no arrears are demandable for the year 1793-4. If there were a promise, it is without consideration, obtained by misrepresentation, and by taking undue advantage of the defendant’s situation.—There was no demand made at the dwelling-house of the defendant. No laws passed after May, 1794, are to be taken into view in this action. No advantage can be taken of the penalty or forfeiture of the law of June, 1794, but for the purpose of enforcing the payment of duties under existing laws.
    
      Ross and Campbell, for the United States.
    
    In November, 1794, the defendant was liable to all past duties, penalties, and forfeitures. If no election be made, the duty is payable on the capacity of the still. The act of 1794, requires an entry of stills, if there be an office within the survey; and makes a personal demand sufficient. This applies to all future demands of past duties. There is a distinction between duties and penalties.—The duties arise from working the stills, or having them erected in stone, brick, or some other manner, whereby they shall be in a condition to be worked. The duties are a debt, though the stills were never entered. The penalties cannot be demanded for not entering, unless an office existed within the legal bounds; but the duty is notwithstanding a debt and payable. And, as the defendant has shewn no regular book, that debt must be ascertained by the capacity of the still. The distillers have been greatly favoured. The duty for three years might have been exacted, and demand is made for the duty of only one of those three years; and all penalties and forfeitures are waved. Surely here is a valuable consideration for a promise.
    
      
      1 U.S.L. 319.
    1 U.S.L. 319-20.
    
    2 U.S.L. 95.
    1 U.S.L. 319.
    3 U.S.L. 93-95.
    1 U.S.L. 319.
    
      1 U.S.L. 320.
   President,

I will consider this case,

1. As if no express promise to pay had been made on the 28th November, 1794;

2. As on this promise.

1. I am clearly of opinion, that, on the 28th November, 1794, all duties on stills, not paid, were then due, and might be exacted for three years, from the 30th June, 1791, to the 1st July, 1794, whether an inspection-office existed in the county or not. The existence or non-existence of an inspection office, only comes in question, when the penalty for not entering is demanded. Both penalty and duty may be exacted. The penalty is “the more effectually to prevent the evasion of the duty;” and, therefore, as it may be less than the duty, cannot be instead of it. If on a demand, a regular book had been exhibited, the defendant might have elected to pay according to the quantity of the spirits distilled. But as no book has been shewn, the duty, according to the capacity of the stills, might be demanded and recovered, whether the defendant promised or not; for, if due, the law implies a promise. Of this duty a sufficient demand has been proved; and the defendant, must pay it.

2. To understand the express promise, we must take into view, the president’s instructions with regard to the country in general, and the instructions of the secretary of the treasury to the collectors, and consider this promise as an execution of these, on the part of the defendant. It is a reasonable, and for him an advantageous execution. The United States might have exacted from the defendant the penalty for not entering his stills in June, 1794, and might have exacted all past duties, penalties, and forfeitures. Waving these is a good consideration, and the promise is binding.

In either way, there must be a verdict for the United States.

The jury found for the United States the sum demanded.  