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.