delivered the opinion of the court:
Iu this case, which was heard on demurrer, two distinct claims are made. The first is for leakages in a bonded warehouse ; and for these a majority of the court are of opinion there can be no recovery, for the reasons stated in the case of Sylvester Thayer et al. v. The United States, recently decided, see ante.
The second claim is for leakages of spirits removed for sale to a wholesale market in 1863, but not stated to be under bond for exportation or under permit from one district to another. And the petition sets forth that the claim was rejected by the Commissioner because, in 1863, there was no regulation for allowance for leakages, except of spirits transported under bond or permit.
The act of 1862 contemplates and provides for the transportation of spirits, before the payment of duty, in no other way *176than under permit or bond; and the proviso of the 12th section of the act of 1863, chapter 74, did not require or authorize the Commissioner to make rides for allowance of leakages, except of spirits so transported. The petition, therefore, does not state a case which called for a rule or an allowance.
A majority of the court are of opinion the demurrer should be sustained.
Casey, Ch. J., dissented.