dating it back to a time within the limitation. To make a nunc pro tunc order effectual for such purposes, it must appear that the delay was the act of the court and not of the parties, and that injustice will not be done.

A slight examination of the facts in this case will be sufficient to show that the failure to take this appeal in time is attributable entirely to the parties. They knew, more than twenty days previous to the entry of the decree, that there was a conflict of interest between them and a large majority of the bondholders, and that the trustee had been asked to have a decree entered such as those opposed to them desired. Instead of seeking to be made parties to the suit at that time, or during the first eleven days of the term and before the decree was entered, they contented themselves with a notice to the trustee and a demand upon it to procure such a decree as they required, and, if that could not be done, to appeal. This, too, when they knew that they had only $200,000 out of $3,700,000 of the secured bonds. After the decree was entered, they delayed any application to the court for leave to intervene for the protection of their own interest until after an adjournment to a remote day had taken place. Then delaying, until near the expiration of the sixty days, they caused the trustee to apply for leave to appeal, so far as their interests were affected, when it must have been apparent that such an order could not have been made. Even then they filed no application to be made parties so that they might appeal for themselves, but delayed all action in that behalf until long after the time when a supersedeas could be had as a matter of right. All this was the act of the parties, and not of the court.

It is claimed, however, that the motion filed by the appellants Jan. 13, to set aside the decree, operated to suspend the decree, and that under the authority of Brockett v. Brockett, 2 How. 238, they had until sixty days after their motion was denied to perfect an appeal and obtain a supersedeas. But there is an essential difference between that case and this. In that, the motion was made by parties to the suit. The motion was one that could be made without leave, and it was entertained. The cause was referred to a master upon this motion. Under such circumstances, the court held that the decree did

not become final until the motion for rehearing was decided. Here, however, the movers were not parties to the suit. They had no right to intervene, except upon leave; and this was refused. Under such circumstances, it is clear that the decree was not suspended in whole or in part by their motion. The appellants were permitted to intervene, but only for the purpose of an appeal. It would have been within the power of the court to set aside the old decree and enter it over again; but this was refused. Leave only was granted to appeal from the decree as originally rendered.

No supersedeas can follow from the appeal allowed by Mr. Justice Miller, because that clearly took effect after the expiration of the sixty days from the date of the decree. Neither can the order of the same justice have the effect of the allowance of a supersedeas on the original appeal, because, as has already been shown, that appeal was not taken in time.

From this it follows that the motion to vacate the supersedeas must be granted.

2. As to the appeal.

The appellants, by the order of Jan. 14, became parties to the suit for the purposes of an appeal. This order, having been made at the same term in which the decree was entered, was within the power of the court; and although it does not appear whether they were admitted as plaintiffs or defendants, it was sufficient to enable them to prosecute an appeal for the protection of their interests. Under this authority their appeal has been allowed and perfected. Whether this brings up the whole of the case, or only a part, it is not necessary now to consider. It is clear that these parties have been allowed their appeal; and that the case is here to the extent that is necessary for the protection of their interests. It is their separate appeal within the rule as to the form in which a severance may be obtained, which is laid down in Masterson v. Herndon, 10 Wall. 416. The motion to dismiss the appeal is, therefore, denied.

Both the appellants and the appellees ask to have the cause advanced for a hearing, but, as only private interests are involved we see no reason why it should have preference over other suits upon the docket. This motion also is denied.

MR. JUSTICE MILLER, with whom concurred MR. JUSTICE FIELD, dissenting.

I dissent from this opinion.

I think the Circuit Court, under the circumstances of the case, had a right to treat the application of appellants for appeal as having been made when they asked liberty to use the name of their trustee for that purpose; and it was rightfully allowed by the Circuit Court as of that date. If this be so, it is not denied that the bond approved by me would operate as a supersedeas.

DEBARY v. ARTHUR, COLLECTOR.

The act of Congress of July 14, 1870 (16 Stat. 262), imposed on champagne wine a duty of six dollars per dozen bottles (quarts), and three dollars per dozen bottles (pints), and upon each bottle containing it an additional duty of three

cents.

ERROR to the Circuit Court of the United States for the Southern District of New York.

Mr. Stephen G. Clarke for the plaintiff in error.
Mr. Assistant Attorney-General Smith, contra.

MR. JUSTICE HUNT delivered the opinion of the court. The firm of DeBary & Co. sued the collector of the port of New York to obtain the return of an amount of duties which they alleged had been illegally exacted from them. The Circuit Court, holding that the exaction of the duties complained of was legal, rendered judgment for the defendant. The plaintiffs appeal to this court.

The question arises upon the act of Congress of July 14, 1870 (16 Stat. 262).

By sect. 21 of that statute it is enacted as follows:

"There shall be levied, collected, and paid, the following duties," viz.:

"On all wines imported in casks, containing not more than twenty-two per centum of alcohol, and valued at not exceeding forty cents per gallon, twenty-five cents per gallon; valued at over forty cents, and not over one dollar per gallon, sixty cents per

gallon; valued at over one dollar per gallon, one dollar per gallon; and, in addition thereto, twenty-five per centum ad valorem.

"On wines of all kinds, imported in bottles, and not otherwise herein provided for, the same rate per gallon as wines imported in casks; but all bottles containing one quart, or less than one quart, and more than one pint, shall be held to contain one quart; and all bottles containing one pint or less shall be held to contain one pint, and shall pay, in addition, three cents for each bottle.

"On champagne, and all other sparkling wines, in bottles, six dollars per dozen bottles, containing each not more than one quart, and more than one pint; and three dollars per dozen bottles, containing not more than one pint each, and more than one-half pint; and one dollar and fifty cents per dozen bottles, containing one-half pint each, or less; and, in bottles containing more than one quart each, shall pay, in addition to six dollars per dozen bottles, at the rate of two dollars per gallon on the quantity in excess of one quart per bottle: Provided, that any liquors containing more than twentytwo per centum of alcohol, which shall be entered under the name of wine, shall be forfeited to the United States. And provided further, that wines, brandy, and other spirituous liquors, imported in bottles, shall be packed in packages containing not less than one dozen bottles in each package; and all such bottles shall pay an additional duty of three cents for each bottle."

The question presented by the record and arising under this statute is, What rate of duty is imposed upon "champagne in bottles"? More specifically, Is the duty of six dollars per dozen bottles imposed upon "champagne in bottles" in this act exhaustive and complete; or did Congress, while enacting a specific rate of duty by the dozen bottles for champagne in bottles, also impose a duty of thirty-six cents for each dozen bottles in addition to the six dollars per dozen specifically named?

The collector of the Port of New York, the defendant in this suit, answered the latter branch of this question in the affirmative. He collected upon the plaintiffs' champagne a duty of six dollars per dozen bottles (quarts), and also collected. an additional duty of three cents upon each of the bottles containing the champagne.

In this, we think, he complied with the statute, both in its terms and in its spirit.

1. The language of the statute seems to require this construction. It is proved and conceded that this champagne is wine. The statute imposes duties under three heads: 1. On all wines imported in casks, of the value specified, and containing not more than twenty-two per cent of alchohol. 2. On wines of all kinds imported in bottles, not otherwise herein provided for, the same rate as upon wines imported in casks, and the bottles to pay three cents each in addition. 3. On champagne and other sparkling wines, six dollars per dozen for quart bottles, and other sums specified for smaller bottles.

After making these subjects of taxation, the section puts forth two provisos: 1st, That any liquors entered under the name of wine, containing more than twenty-two per centum of alcohol, shall be forfeited to the United States. This follows immediately after what has been before recited, and applies to all that precedes it. Any liquor entered as wine, which contains more than twenty-two per centum of alcohol, whether it is entered as wine generally, or champagne or sparkling wine, is condemned to the use of the United States. The second proviso is, that packages of wines, brandies, or other spirituous liquors, shall contain not less than one dozen bottles in each package; and all such bottles shall pay an additional duty of three cents for each bottle. Both branches of this proviso include all the liquors that have before been referred to. If still wine, or sparkling wine, brandy, or other spirituous liquors, is imported in bottles, there shall be not less than one dozen bottles in each package. This seems too plain for discussion. The section adds, and in language also embracing every kind of wine, brandy, or other spirituous liquors, that "all such bottles shall pay an additional duty of three cents for each bottle."

2. The tax upon the bottles is not only within the language, but it is also within the spirit and meaning, of the statute. A tax of three cents upon the bottle may seem too trifling to have been intended, where a tax of fifty cents upon the contents has already been imposed. That this is not so is apparent from the effort here made to avoid the tax, as well as from the allegation of the complaint that $5,218.68 has been thus paid by this single firm within a period of three months, from December, 1872, to February, 1873.