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ta the 69th section of the Act of 1799. 2 Laws from the moment they are seized, as liable for U. S. 163; Act of 4th Aug. 1790. "To pro forfeiture, up to that when they are adjudged vide more effectually for the collection of du- to be forfeited or restored ? Had the law ties.”

meant that the custody should be changed durDid the first clause of the 4th section of the ing this interval, would it not have been so Act of 1792 repeal this 49th section of the Act stated in this section! It provides for their of the 4th August, 1790? Would Congress have custody until "proceedings are had to ascer80 legislated, intentionally, as to have repealed tain whether they are forfeited, and if they that section by this clause by implication, and are adjudged not to be forfeited,” they are to be then have repealed this clause by implication given up. Is it possible to construe the senby the re-enactment of that? Was the marshal tence otherwise than as a saying that the judg. to have the custody before process? If the 69th ment of the court is the proceeding by which section of the Act of 1799 is to be construed as the forfeiture is to be ascertained ! If the law a repeal of the first clause of the 4th section of of 1792 were not in existence, could anyone the Act of 1792, who, between that time and doubt for an instant that this would be ad. the present, has had the right to the "custody" mitted without question? If so, it ought now of "vessels" seized !

to be admitted, for this is a subsequent statIf it were necessary to avoid this inconvenutory provision, to be ascertained from its ex. iept construction, would not the court be jus. press language; not by reference to a previous tifind in saying that, quoad the prosecution, law, which cannot control or affect it. the marshal is the "other person" appointed But the construction contended for is not only by the collector to take the custody of the contrary to the language of the 69th section; property? The collector is the prosecutor. It it is contrary to the whole scope of the law of is, by the 89th section of this act, made his 1799. That law embraces all proceedings rela. duty to prosecute "without delay;" while the tive to imported goods. It provides for all 69th section gives the custody of the property cases that occur from the time of their arrival to him, “or such other person as he shall ap- to the time of their final disposition, whether point for that purpose.” If, then, the course that be by their delivery to the importer or by of the “proceedings requires that the marshal their sale as forfeited. The duties of the colshall have the "custody” of the property by lector, of the various revenue officers, and of virtue of process, does he not, by the act of the court are particularly set forth. ls it prosecution, quoad hoc, make him that “other possible the custody of goods seized and waitperson ?"

Burke v. Trevitt, 1 Mason's Rep. ing adjudication should not be explicitly pro96–100. Is it policy, further than is necessary, vided for! Yet the only provision is that to continue property seized in this summary which gives it to the collector. Is it possible manner, in the hands, possession, and custody the law intended to give it to the marshal, of a party in interest? The collector is such a when there is no provision to that effect! The party, he being entitled to a share of the pro- duties of the collector in making seizure and ceeds if the property is forfeited.

instituting proceedings are minutely stated; Mr. Gilpin, in reply:

the whole of these proceedings, whether by The argument against this motion does not the court, the clerk, the claimant, deny the legal right of the collector to the cus- *are prescribed; the sale, if the goods (*287 tody of goods seized, but confines it to the cus- are condemned, is, by the express words of the 288") tody *merely incident to the seizure, law, to be made by the marshal. There is no and makes it expire with the commencement of omission to assign explicitly specific duties to proceedings for the condemnation.

the several officers, in every successive stage, Such a construction is contrary to the plain from the moment the goods are imported; or to language of the 69th section of the Act of provide for each contingency that may occur 1799. That act is the latest; subsequent to all in regard to them. The law of 1799 is elabothers cited; its provisions are the actual law, orately drawn for these purposes. Would it no matter whether or not they conflict with not, then, be a total violation of its whole any that are previous. If they are so clear as scope, so to construe the 69th section as, in the to leave no doubt, there is an end of the case. first place, to prevent it from embracing, as When the whole section is read together, there its plain tenor would do, the custody of the seems no room for doubt. "All goods, wares, goods up to the time of judgment; and then, and merchandise, which shall be seized by vir having done this, to confer that custody on an tue of this act, shall be put into and remain in officer to whom it is never given in the same the custody of the collector, or such other per law, although that law was evidently intended son as he shall appoint for that purpose, until to provide for and assign the specific duties of such proceedings shall be had as by this act every officer? Yet to this result the opposite are required to ascertain whether the same are argument necessarily leads. forfeited or not; and if it shall be adjudged Nor is the construction contended for more that they are not forfeited, they shall be forth. opposed to the express language and general with restored to the owner or owners, claimant scope of these statutory provisions than it is or claimants thereof; and if any person or to the whole spirit of the revenue system of persons shall conceal or buy any goods, wares the United States, as regards imported goods or merchandise, knowing them to be liable to subject to impost duties. The leading and disseizure by this act, such person or persons tinct feature of that system is to leave all shall, on conviction thereof, 'forfeit and pay a goods subject to duty, in the actual custody of sum double the amount or value of the goods, the collector, until the duties are paid or sewares, or merchandise, 80 concealed or pur cured. Up to that time the government, chased." Is it not evident that this section is through its revenue officer, keeps its lienmeant to provide for the custody of the goods holds its possession. The moment a vessel ar



rives within the waters of the United States., that as notice must be given by the court of the collector, or his subordinate officer, takes the seizure of the goods, such seizure must be possession of the goods; he ascertains the im- one made under process of the court; the very post duties on them; he examines whether words of the law cited to sustain this constructhey are liable to forfeiture; he provides ware- tion seem to controvert it, for they speak of houses for their safe keeping; if they are the seizure of which notice is to be given as seized for forfeiture, he has legal proceedings anterior to the libel when it is admitted that instituted; if delivered to the claimant on the only seizure on the process of the court bond, he sees that additional bonds for the must be subsequent to the libel; for on the al. duties are taken; he sells them if the duties legations of the libel all its process is founded. are not paid or secured within nine months; Nor is it possible to sustain this distinction his permit is necessary for their delivery. To by reference to the words of the statute; it allow the marshal to take them from the pub speaks constantly of seizure for forfeiture, but lic warehouse, pendente lite, is at direct vari. in every instance treats it as an act of the col. ance with this whole system, and for no cor: lector, never of the marshal. Besides, the disresponding benefit. It deprives the government tinction is unnecessary to secure the rights of of its security for the duties; it substitutes an any persons for whose benefit the notice is to officer having no connection with the revenue be given. Again, it is said that before judg. for him who is expressly charged with that ment the court may direct the delivery of the duty, and with the preservation of the goods on bond, or their sale if perishable; and best security-the goods themselves—until that either of these acts ends the collector's that

is paid.

The omission of custody. It is not apparent how either of this law to give to the collector the custody of these acts of the court conflict with that custovessels, as well as goods, confirms this view. It dy, either to the injury of the collector, or of does not direct him to retain the custody of the security of the government; because in the vessels seized, for they are not liable to im- first instance the act is expressly authorized post duties; they are not articles affording a and it is provided that full security both for revenue; they do not come within the scope the value of the goods and the amount of du. of the revenue system. It is true they are ties shall be previously given; in the other subject to the payments for tonnage, called there is certainly no authority given to the duties; but these are in fact mere port charges, court by any law, but if it were exercised, in no way resembling impost duties, or requir- doubtless it would be attended with the same ing the same regulations. The very omission, disposition of the proceeds of the sale. If, therefore, to include vessels in the provisions therefore, these acts do terminate the collectof the act giving the custody of goods to the or's custody, before judgment, it is only by collector, would seem to show that those provi. the substitution of a security or other propsions were made with reference to the revenue erty equal in value, and as much under his system. If so, they can only be consistent control; this is not the case if the custody with it, by construing them in the manner con- *be taken from him by the preliminary (*289 tended for by the collector.

process of the marshal's attachment. Nor does 288*] *The argument in support of the op- the provision of the law, which directs the sale posite construction, and which goes to limit the after condemnation to be made by the marshal, custody of the collector to the mere possession seem to conflict with the construction conincident to the seizure, does not controvert any tended for by the collector; on the contrary, of these grounds. It relies solely on an en the express designation of the marshal, in this deavor to show that other provisions of the Act instance, and of the collector in the other, of 1799 are inconsistent with the custody would seem to sanction his construction. But the collector after the institution of legal pro- the sale is an executive act of the court, and ceedings. One point of the opposite argument properly done by its executive officer, who is is that the suit is to be "prosecuted to effect;" bound to make his return immediately; this is and that this cannot be done without surren in no respect similar to the custody of the dering the goods to the custody of an officer goods before condemnation. the court; and that the collector is not an of One point of the opposite argument remains ficer of the court, or bound to obey its order. to be noticed. It is said that if the Act of 1799 To this it may be answered, in the first place, is construed as a repeal of that of 1792, it will that the custody of an officer of the court is not leave no provision for the custody of vessels; necessary to the effectual prosecution of the and also that the latter act must have been proceedings for forfeiture; those proceedings equally a repeal of those of 1789 and 1790 consist in the ascertainment of certain facts in which would remove all provisions for the dependent entirely of the custody of the goods custody of goods before process-a construcuntil their restoration or sale is decreed by a tion, it is alleged, so inconvenient that it would judgment, when the law provides the officer justify the court, if necessary, in order to oband the mode of effectuating that judgment, viate it, to consider the marshal as one of the which ever it may be; in the mean time it is "other persons” to whom the collector might sufficient if the law provides that the goods are himself confide the custody. To this argument safely kept by any person to answer to the the answer is, that the Act of 1799 is not a rejudgment; but in the second place, the collector peal of the Act of 1792, nor was the latter a reis an officer of the court, and so constituted by peal of those of 1789 and 1790. The Act of this very law, so long as the proceedings are 1792 is an act generally explaining the duties depending. In the words of the Circuit Court and regulating the fees of the marshal, the of Massachusetts in Burke v. Trevitt, 1 Mason, others are acts elaborately arranging the reve100, the collector “is the mere official keeper of nue system; the clause in the Act of 1792 is the court.” Another point of the argument is, I subsidiary to the others; it refers to such cus.

tody of goods as it may be necessary for the edly declared by this court that it will not, by marshal to have as an executive officer of the mandamus, direct a judge what judgment to court, but not in conflict with the revenue sy8. enter in a suit; but only will require him to tem or arrangements. But even if the Act of proceed to render judgment. The case of The 1799 were a repeal of that of 1792, it would Life and Fire Insurance Co. of New York v. not, as is contended, leave no provision for Adams, in 8 Peters's Rep. 291; and 9 Peters's the custody of vessels, because they are not in Rep. 573, is directly in point. cluded among the articles placed by the for But, as there appears to have been some di. mer act in charge of the collector, and there. versity of construction in the different disfore as to them the Act of 1792 remains un tricts of the United States or the laws on this repealed and gives the custody to the marshal. subject, and as it is a matter of general con

cern throughout all the commercial districts, Mr. Justice Story delivered the opinion of and applicable to the daily practice of the the court:

courts, and the point has been fully argued, we This is the case of a motion made by the think it right to say that we are of opinion collector of New York for a mandamus to be that the construction of the law of the United directed to the district judge of the Southern States, maintained by the district judge in his District of New York, under the following opinion, is the correct one, to wit, that by the circumstances. The collector, on the 28th of 69th section of the Collection Act of 1799, ch. December last, made a motion in a certain 128, the goods, wares, and merchandise seized cause of seizure then depending before the under that act are to be put into and remain said judge, that the clause of the common in the custody of the collector, or such other monition, issued in that cause, by which (ac- persons as he shall appoint for that purpose, cording to the common practice in such cases) no longer than until the proper proceedings are the marshal is directed to detain the goods at had under the 89th section of the same act to tached by virtue of the said monition in his ascertain whether they are forfeited or not; custody, until the further order of the court and that as soon as the marshal seizes the be quashed and stricken out; on the ground same goods under the proper process of the that the said clause is repugnant to the 69th court, the marshal is entitled to the sole and section of the Act of 1799, ch. 128, entitled, exclusive custody thereof, subject to the future "An Act to regulate the collection of duties on orders of the court. imports and tonnage;" or that the said moni The motion for mandamus is denied. tion be so reformed and amended that the said

*Mr. Justice Baldwin concurred with [*291 goods remain in the custody of the said. col: the court, in the opinion that this is not a case lector, or such person as he shall appoint for

for a mandamus. 290*j *that purpose, until the proceedings the case is coram non judice. Any opinion

The result of this is that commenced for the forfeiture of the said goods which may

be given on other points in the case shall be determined, and it be judicially as

cannot be binding in any case. He was not certained whether the same have been forfeited or not, as required by the said 69th willing to decide a question when it was not section of the act. The district judge after a

properly before the court. full hearing pronounced an elaborate opinion, reviewing the whole series of laws on the subject, and refused to grant the motion. The

*EDWARD HARDY present motion is for a mandamus to compel

[*292 him to vacate the order denying the original motion of the collector.

JESSE HOYT. We are of opinion that this is, in no just Silk stockings exempt from duty. sense, & case for a writ of mandamus. This court has authority given to it by the 13th sec

Stockings and half-stockings, made entirely of

silk, imported from Liverpool,' in October, 1838, tion of the Judiciary Act of 1789, ch. 20, to were exempted from the payment of duty by the issue writs of mandamus in cases warranted by Acc of Congress, passed March 2, 1833, entitled the principles and usages of law to any courts "An Act of modify the Act of the i4th July, 1832,

and all other acts imposing duties on imports." appointed under the authority of the United States. The application not war: Na certificate of division of opinion from law. It is neither more nor less than an ap- the Southern District of New York. plication for an order to reverse the solemn This cause came before the court on a certiojudgment of the district judge, in a matter rari to the Superior Court of the City of New clearly within the jurisdiction of the court, and York the action being in assumpsit to recover to substitute another judgment in its stead. from the defendant the sum of $148.29, reNow, a writ of mandamus is not a proper proc-ceived by him as collector of the port of New ess to correct an erroneous judgment or decree York, for duties on an importation of silk hose rendered in an inferior court. That is properly The duty was levied at the rate of twenty-five matter which is examinable upon a writ of per centum ad valorem, as "hosiery," under error or an appeal (as the case may require) the 2d article of the 2d section of the Act of to the proper appellate tribunal. Neither can Congress approved July 14th, 1832, entitled this court issue the writ upon the ground that “An Act to alter and amend the several acts it is necessary for the exercise of its own ap- imposing duties on imports.” The plea of non pellate jurisdiction; for the proper appellate assumpsit was pleaded by the defendant in bar jurisdiction, if any, in this case, is direct and of the action. immediate to the Circuit Court for the South It being proved that the articles imported em District of New York. It has been repeat- I were stockings and half-stockings, made en.



At the

tirely of silk, and were imported from Liver. *JOHN P. VAN NESS, Appellant,, (294 pool, in England, in the ship St. Andrew, in the month of October, in the year one thousand ALPHEUS HYATT et al., Appellees. eight hundred and thirty-eight, which port of Liverpool is a port this side of the Cape of

What may be taken on execution. Good Hope; the following point was presented, during the progress of the trial, for the opinion

The principle of tbe common law undoubtedly is of the judges, on which the judges were op- that no property but that in which the debtor bas posed in opinion, viz.:

a legal title is llable to be taken in execution ; and, Whether the said silk hose was subject to the that an eguitable interest is not liable to execution.

accordingly, it is well settled in the English courts payment of the duty imposed on hosiery by the In the United States, different plews have been 2d clause of the 2d section of the Act of July taken of this question in the courts of the several 14th, 1832, entitled, “An Act to alter and

States. Except as against the mortgagee, the mort

gageor is regarded as the real owner of the propamend the several acts imposing duties on erty mortgaged ; and this rule has very extensively imports."

prevailed In the States of the United States, that Or whether, as manufactures of silk, noterty on an execution, and that it is also charge

an equity of redemption 18 vendible as real propbeing sewing silk, they were exempted from able with the dower of the wife of the mortgageor. the payment of duty by the 4th section of the The equity of redemption of a mortgageor of land Act of March 2d, 1833, entitled, “An Act to

in that part of the District of Columbia, ceded by

the State of Maryland to the United States, cannot modify the Act of the fourteenth of July, one be taken in execution under a fieri facias. thousand eight hundred and thirty-two, and all time of the cession to the United States, the rule

of the common law was the law of Maryland. other acts imposing duties on imports," which It is not necessary to refer to authorities to susdeclares that all manufactures of silk, or of tain a proposition that a chose in action is not which silk is the component material of chief liable to be levied on by a fieri facias. value, coming from this side of the Cape of Good Hope, except sewing silk, shall be free.

United States has happened, under the direction of the judges ton, in the District of Columbia. of the said court, at the request of the counsel In November, 1836, the appellant filed a bill for the parties in the cause, was ordered to be in the Circuit Court against Alpheus Hyatt and certified unto the Supreme Court of the United others. The following were the important States at the next session.

facts in the case, as sustained by the evidence: The case was submitted to the court, on the In December, 1818, William Cocklin leased argument in the case of Bend v. Hoyt, by Mr. to James Shields a lot of ground in the city of Raymond for the plaintiff, and Mr. Grundy, Washington for ten years from January 1st, Attorney-General, for the United States. 1819, for the rent of thirty-five dollars per 293*]

The lessee covenanted to erect and *Mr. Justice Story delivered the opinion of the court:

build, within twelve months, a two-story brick This case involves the second point only, house upon the lot; and the parties agreed that which has been just decided in the case of Bend if at or before the expiration of the lease, the v. Hoyt, and, therefore, it is only necessary to lessee should pay to the lessor the sum of three say that it will be certified to the Circuit Court hundred and seventy-five dollars, the rent for the Southern District of New York, that should cease, and so if a portion or part of the the silk stockings and half-stockings mentioned sum of three hundred and seventy five dollars in the case were exempted from duty on their should be paid within the time, the rent should importation, under the Act of the 28 of March, be diminished according to the sum or sums 1833, ch. 384.

paid. On the payment of the whole of the

sum, William Cocklin was to make to the lesThis cause on to be heard on the see a good and sufficient title in fee-simple to transcript of the record from the Circuit Court the lot. of the United States for the Southern District James Shields, on the 23d of September, of New York, on the points and questions on 1823, mortgaged the lot and improvements which the judges of the said Circuit Court upon it to John Franks, to secure a debt of were opposed in opinion, and which were cer- $1,127; and on the 7th day of May, 1825, the tified to this court for its opinion, agreeably to mortgagee assigned all his right and title under the act of Congress in such case made and pro- the mortgage to Alpheus Hyatt, one of the apvided, and was argued by counsel; on consider-pellees; and on the 9th day of may, 1825, James ation whereof, this court is of opinion that the Shields released all his interest in the lot to silk hose, as manufactures of silk, not being Alpheus Hyatt, for the consideration of two sewing silk, were exempted from the payment hundred dollars. Subsequently, in May, 1826, of duty, by the 4th section of the Act of the 2d Alpheus Hyatt, having paid to the heirs and of March, 1833, entitled, "An Act to modify representatives of William Cocklin the whole the Act of the 14th of July, 1832, and all other sum of three hundred and seventy-five dollars acts imposing duties on imports,” which de and the intermediate rent, they released to him clares that all manufactures of silk, or of which the premises, and conveyed to him in fee-simsilk is the component material of chief value, ple all their right, title, and property in the coming from this side of the Cape of Good same. Hope, except sewing silk, shall be free of duty. On the eighth day of November, 1823, John Whereupon, it is ordered and adjudged by this P. Van Ness, the 'appellant, obtained, [*295 court that it be so certified to the said Circuit before a magistrate of the County of Washing. Court, and that this cause he remanded to the ton, a judgment for thirty dollars and twenty. said court, that further proceedings may be five cents, against James Shields, and he caused had therein according to law.


a fieri facias to be issued on the judgment, on


the 10th of June, 1824, under which a levy was made under the fieri facias issued under the made by the constable having the process, on judgment. This is the consequence of the prothe right, title, interest, estate, and claim of vision of the act of Congress against a lien. James Shields, in and to the lot originally held There is no record of judgments before magisby him, under the lease and agreement with trates, and therefore no notice of them. The William Cocklin. The property levied upon same may be said as to the sale by the consta. was sold by the constable, under the process ble, and until the deed of August, 1825, was for the sum of fifty-four dollars, on the 10th of recorded in January, 1826, nothing could be July, 1824; and John P. VanNess, the appel known of the proceedings by which a bona fide lant, became the purchaser thereof on the 19th purchaser might protect himself. day of August, 1825; the constable conveyed Shields had no property which could be made the premises sold by him, to the appellant, by the subject of a levy. In May previous to the & deed of indenture, which was recorded on proceeding he had mortgaged the lot to Franks, the 9th of January, 1826.

who subsequently, before the constable's sale, The appellant having filed his bill stating all conveyed the mortgaged interest to Alpheus the facts, and alleging the conveyances made Hyatt. On the oth of May, 1825, Shields reby Shields and Franks, and the heirs and repleased all his interest in the premises to Mr. resentatives of William Cocklin to have been Hyatt. erroneous and fraudulent, and averring his full But Shields had no interest upon which a readiness to pay the heirs and representatives levy could be made under the lease from Cockof William Cocklin, or to the representatives of lin; or if he had an interest under the lease, it Franks, all that Shields was bound to pay to expired on the 1st of January, 1826. The apthem; prayed a decree that the property should pellant applied in 1836 to the heirs of the lessor, be assigned to him, and that he should be to redeem in 1836, when all the interest under quieted in the possession of the same, and for the lease was sure. general relief.

Shields had nothing but an equity of reThere was no evidence to support the allega- demption on the property; and this in the tions of fraud stated in the bill, nor was there District of Columbia, which is regulated by the any proof given of notice to the appellees of the law of Maryland prevailing when the territory same. The answers, as far as they were re- was ceded to the United States, could not be sponsive to the bill, and the several exhibits levied upon. 8 East, 484; 2 Saunders, 11; with the bill and the answers, were the only Act of Maryland of 1810, ch. 130; 9 Cranch, proofs in the cause.

496; 2 Harris & M'Henry, 355; 6 Harris & The Circuit Court, after a hearing of the Johns. 316. parties by their counsel, dismissed the bill with costs, and the complainant prosecuted this ap- Mr. Justice Barbour delivered the opinion peal.

of the court: The case was argued by Mr. Hoban and Mr. This is an appeal from the Circuit Court for Coze for the appellant, and by Mr. Key for the the County of Washington, in a suit in equity appellees.

brought by the appellant in that court, in For the appellant, it was contended that the which a decree was made, dismissing the bill Circuit Court erred in refusing the prayer con with costs. tained in the bill.

The case was this: On the 31st day of De. That the sale of the constable conveyed the cember, 1818, an agreement was entered into estate of Shields at the time to Van Ness. between William Cocklin and James Shields,

That there is no proof of any other incum- by which Cocklin leased to Shields part of a lot brance on the property than the purchase in the city of Washington for ten years from money and rent, when VanNess purchased. the 1st of January, 1819, for the yearly rent of

Mr. Hoban considered the interest of Shields I thirty-five dollars. The lessee was to build a in the lot, at the time of the sale by the consta- two-story brick house on the lot, within twelve ble, as one liable to execution. The mortgageor months from the date of the lease. And it was in possession is the owner of the property, and agreed between the parties that if, at the expi. his interest may be levied upon and sold. Cited, ration of the lease, Shields should pay to CockM'Call v. Lenox, 9 Serg. & Rawle, 230; 2 lin three hundred and seventy-five dollars, then Greenleaf's Rep. 132; 16 Mass. Rep. 305; 4 the rent should cease to be paid; or if all, or Johns. Rep. 41; 10 Johns. Rep. 481 ; 12 Johns. any part of the three hundred and seventy-five Rep. 521; 1 Barn. & Ald. 230; 3 Paige's Rep. dollars were paid before the expiration of the 219; 9 Cranch's Rep. 153.

lease, then such part of the rent of (*297 Mr. Coxe, also for the appellant, contended thirty-five dollars should cease, as should bear that the interest of Shields in the land was such an equal proportion to the money so paid. And as was the subject of an execution, and that on the receipt of the whole of the purchase 296*] *the deed from the constable to the ap: money, and not before, Cocklin should make pellant conveyed that interest. It was recorded to Shields a good and sufficient title in fee-simwithin the time required by law, and was a ple to the lot of ground described in the lease. valid and efficient deed. The mortgageor is the On the 23d of September, 1823, Shields, the owner of the property mortgaged against all lessee, mortgaged the premises to a certain the world, the mortgagee excepted.

John Franks, to secure a debt of $1,127.18. On Mr. Key, for the appellees :

7th May, 1825, Franks assigned all his right The appellant acquired no lien on the prop- and title to the appellee; who also, on the 9th erty of Shields by the judgment obtained be of May, 1825, procured from Shields a release fore a magistrate. This is prohibited by the of his interest, and from the representatives of Act of Congress of March, 1823. Birch's Di. Cocklin a conveyance of all their title, on the gest, 311. Nor was any acquired by the levy 16th of April, 1826,

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