The inquiry is in regard to the knowledge of the collector and deputy collector of the cause for seizure more than thirty days before this seizure was made. Knowledge of the cause for seizure means knowledge on the part of the officer of facts tending to establish a cause for seizure prescribed in the statute. Mere vagué rumor or suspicion, or loose assertions of irresponsible persons, are not sufficient. It must consist of. or be founded upon, such facts communicated to or ascertained by the officer from reliable sources, as prima facie to establish a fraud upon the law.
The facts relied on in support of this information, and substantially upon which the verdict was rendered, were known to the collector and deputy collector, and to Inspector Burpee, who is the informer, in the fall of the year 1866, a year before this seizure was made. The evidence upon the subject of the statute limitation was submitted to the jury, together with all the evidence in the cause, with instructions upon the law of the case. The jury were charged that claimant can take advantage of the statute of limitation; and that the law requires *1091prompt action on the part of revenue officers. [Claimant moved the court, to set aside the verdict against him, and for a new trial, upon the ground that it is against the law and the evidence.]4
After much reflection I should not feel justified in disturbing the verdict upon the merits. Finding the verdict upon the evidence, mostly circumstantial, was no abuse of the prerogative of the jury. The evidence was sufficient to bring the mind to the conclusion that the alleged cause of forfeiture was well founded. The impeached witnesses were sufficiently sustained and corroborated to authorize the jury in finding the verdict in part on their testimony. The means taken by claimant to procure counter-affidavits from those witnesses no doubt prejudiced his case with the jury.
I will confine this investigation to the subject of limitation allowed to be raised at the trial upon the pleadings. The answer is in the nature of a. plea of the general issue.' It is a general denial of the facts alleged in the information. In cases of seizure this mode of pleading is allowable. Conk. Prac. •390. 5 Special pleadings in actions for penalties and forfeitures, or in criminal prosecutions, are almost entirely disused. A demurrer to an indictment is occasionally interposed. The' general practice is either a motion to quash, or a motion in arrest, after •a verdict of guilty. In criminal prosecutions, although a defendant may plead to the .jurisdiction of the court, there are but few instances in which he is obliged to have recourse to such a plea. He may take advantage of the matter under the general is:sue. Archb. Cr. Pl. 80. In a case under the statute of 31 Eliz., which provides that all actions for any forfeiture upon any penal ■statute shall be brought within two years, the court held that the defendant may take ■advantage of the statute on the general issue, and need not plead it. Bull. N. P. 195. In Johnson v. U. S. [Case No. 7,418], the court did not permit the party indicted to take advantage upon habeas corpus of the limitation of indictments, where the objection had not been, made of record by plea. In U. S. v. Ballard [Id. 14,507], the question •of limitation was raised upon the date mentioned in the indictment, upon which the alleged perjury had been committed, and the •act was held to bar the prosecution. In U. S. v. Mayo [Id. 15,755], there was a plea of the statute of limitation. But in Parsons v. Hunter [Id. 10,778], the same court declares in the opinion, that in suits on penal statutes, the statute of limitation need not be pleaded; but may be taken advantage of under the general issue. By section 32 of the crimes act of 1790 (1 Stat. 119) it is enacted, “that no person shall be prosecuted, tried, or punished for treason or other capital offense, willful murder and forgery excepted, unless the indictment for the same shall be found-by a grand jury within three years next after the treason or capital offense shall be committed; nor shall any person be prosecuted, tried, or punished for any offense not capital, unless the indictment for the same shall be found within two years from time of committing the offense; provided, that nothing herein contained shall extend to any person or persons fleeing from justice.” By acts of congress, the period of limitation for the prosecution of any.crime arising under the revenue law, and suits for fines and forfeitures; is five years.
Cases arising under the act limiting prosecutions have been presented to the consideration of courts under different forms of pleading. In U. S. v. Slacum [Case No. 16,311], the limitation was specially, pleaded. In TJ. S. v. Porter [Id. 16,072], the limitation was not pleaded. In U. S. v. Watkins [Id. 16,649], the question was raised by demurrer. In U. S.,v. White [Id. 16,676], it is decided that limitation may be given in evidence by the defendant under the general issue in a criminal cause, and the United States may give in evidence the fact that defendant fled from justice, and therefore was not entitled to the benefit of the limitation. In the opinion on page 82, the court remarks: “The court is bound to take notice that the defendant, upon the plea of riot guilty, had a right to avail himself of the- limitation of time, If he was entitled to it; and that the United States had a right to show that he was not entitled to its benefits. If, from accident or ignorance of his rights, the defendant should have been prevented from asserting or using his right, it might be ground of a motion for a new trial.” In the case of Lee v. Clarke, 2 East, 333, 336. an action of debt for a penalty given by the game laws, upon the plea of nil debet, the verdict was for the plaintiff. Lord Ellen-borough, during the argument, said: “That notwithstanding the allegation that the offense was committed within six calendar months, yet if it were not computed within the time prescribed by the statute, the plaintiff must have been nonsuited.” Lawrence, J., remarked: “The time having elapsed would have been evidence for the defendant on the plea of nil debet.” See, also, 1 Chit. Cr. Law, 471, 475, 626; Esp. Pen. St. 78.
The statute limitation seems to require. that evidence of the time the officer obtained knowledge of the cause of forfeiture should be received under the general issue. It is an appropriate inquiry upon the trial of the cause. Proof on the subject might involve a more extended range than if the seizure were prohibited after or between certain dates. Seizure is an open and notorious *1092act on the part of the officer, known to the party in possession; but on what day or time the cause of seizure came to the knowledge of the officer may have to be ascertained from proof of several facts.
Fronl this examination of the subject I am satisfied that the evidence was properly admitted, and that the verdict, • under the instructions of the court upon this subject, should have been for claimant.
A question arises,—What effect the repeal of section G8 has on this case, if any? The information charges the offenses against the act to have been committed between September 3, 1SG4, and March 1, 1866. And the seizure is alleged to have been made on October 11, 1867, under and in pursuance of the act of June 30, 1864, and the acts amenda-tory thereof and supplementary thereto.
It is an established rule, that where an action for the recovery of a penalty, or a proceeding to enforce a forfeiture prescribed in a legislative act, is pending at the time of the repeal of the act, or instituted after the repeal, such repeal is a bar to the action or proceeding, in the absence of a saving clause in the repealing act. A clause of the repealing act provides that the repeal shall take effect on September 1, 1866. The act of March 3, 1865 (13 Stat. 472), continues in force section CS of the act of 1864. These two last acts were in force at the time of claimant’s operations in the distillery, and for six months thereafter. The act of July, 1S0G, repealing- section GS, provides, in section 70, “that all the provisions of former acts repealed shall be in force for collecting all taxes, duties and licenses- properly assessed, or liable to be assessed, or accruing under the provisions of acts, the right to which has already accrued, or which may hereafter accrue under said acts, and for maintaining and continuing liens, fines, penalties and forfeitures incurred under and by virtue thereof, and for carrying out and completing all proceedings which have been already commenced, or that may be commenced to enforce such fines, penalties, and forfeitures under said acts!” It is, therefore, apparent that section 68 of the act of 1864 remains in force as to this case, including the proviso of limitation, notwithstanding the repeal. The distillery apparatus was subject to seizure as forfeited for offenses propounded in the information before the repeal affected the section in any manner; and the above provision of the repealing act reserves to the government the right to institute and prosecute these proceedings to enforce the forfeiture.
The court being satisfied that the seizure upon which this information is founded was not made within thirty days after the cause for the same had come to the knowledge of the collector and deputy collector, it is therefore ordered that the verdict be set aside and the information dismissed.
[From 8 Int. Rev. Rec. 9.]
[See Case No. 16,562.]