to adopt from the local law any other requirement as to the possession than the length of time for which it must be maintained. Otherwise, in view of the Spanish and American law before July 1, 1902, no rights could be acquired and the section would be empty words, whereas, as we have said before, another section of the act, § 16, still further shows the intention of Congress to respect native occupation of public lands.

Again it is urged that the section of itself confers no right other than to apply for a patent. But a right to an instrument that will confer a title in a thing is a right to have the thing. That is to say, it is a right of the kind that equity specifically enforces. It may or may not be true that if the objection had been taken at the outset the plaintiffs would have been turned over to another remedy and left to apply for a patent, but after a trial on the merits the objection comes too late. See Perego v. Dodge, 163 U. S. 160, 164; Reynes v. Dumont, 130 U. S. 354, 395.

Some objections were taken to the exclusion of evidence. But apart from the fact that they do not appear to have been saved in the exceptions taken to the Supreme Court, and irrespective of its admissibility, the evidence offered could not have affected the result. An inquiry of Fianza, whether he claimed the mines mentioned in the suit or those measured by the surveyor who made the plan to which we have referred, was met by the allowance of an amendment claiming according to the plan. A question to another of the plaintiffs, whether she saw any Iggorrots working for Reavis, would have brought out nothing not admitted by the bill, that Reavis did for a time intrude upon the mines in suit. Upon the whole case we are of opinion that no sufficient ground is shown for reversing the decree, and it is affirmed.

Decree affirmed.

Statement of the Case.

215 U.S.

UNITED STATES v. MESCALL.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF NEW YORK.

No. 278. Argued October 14, 1909.-Decided November 8, 1909.

The rule of ejusdem generis, that where the particular words of description are followed by general terms the latter will be regarded as referring to things of a like class with those particularly described, is only a rule of construction to aid in arriving at the real legislative intent and does not override all other rules. When the particular words exhaust the genus the general words must refer to words outside of those particularized.

Under 9 of the Customs Administrative Act of June 10, 1890, c. 407, 26 Stat. 131, 135, providing punishment for making and aiding in false entries, the words "owner, importer, consignee, agent or other person" include a weigher representing the Government, and his acts come within the letter and purpose of the statute.

SECTION 9, chapter 407, Laws of June 10, 1890, 26 Stat. 130-135, known as the Customs Administrative Act, under which defendant was indicted, reads as follows:

"That if any owner, importer, consignee, agent, or other person shall make or attempt to make any entry of imported merchandise by means of any fraudulent or false invoice, affidavit, letter, paper, or by means of any false statement, written or verbal, or by means of any false or fraudulent practice or appliance whatsoever, or shall be guilty of any wilful act or omission by means whereof the United States shall be deprived of the lawful duties, or any portion thereof, accruing upon the merchandise, or any portion thereof, embraced or referred to in such invoice, affidavit, letter, paper, or statement, or affected by such act or omission, such merchandise, or the value thereof, to be recovered from the person making the entry, shall be forfeited, which forfeiture

shall only apply to the whole of the merchandise or the value thereof in the case or package containing the particular article or articles of merchandise to which such fraud or false paper or statement relates; and such person shall, upon conviction, be fined for each offense a sum not exceeding five thousand dollars, or be imprisoned for a time not exceeding two years, or both, in the discretion of the court."

The indictment in the first count alleges that the steamship Alice arrived at the port of New York on November 2, 1907, from Greece, having on board eighty cases of cheese, consigned to one Stamatopoulos; that the said cheese was unloaded and an invoice and entry thereof filed with the collector of customs of the port of New York by the said Stamatopoulos; that the defendant was at the time an assistant weigher of the United States in the customs service at the port of New York and engaged in the performance of his duties as such assistant weigher; that it was his duty to weigh accurately the said cheese and make return thereof to the collector of customs, and upon the weight so returned the said entry was to be liquidated; that the said defendant "did knowingly, wilfully and unlawfully make and attempt to make an entry of imported merchandise, to wit, the said eighty cases of cheese, by means of a false and fraudulent practice, by means whereof the United States was to be deprived of the lawful duties or a portion thereof accruing upon the said merchandise;" that he did knowingly, wilfully and unlawfully return the net weight of said cheese as 13,358 pounds, whereas the true weight thereof and the weight upon which the entry should have been liquidated and the duties paid was 17,577 pounds. The second and third counts contain the same statement of facts, but it is averred in the one that the defendant was "guilty of a wilful act and omission, by means whereof the United States was to be deprived of the lawful duties," or a portion thereof, and in the other that he unlawfully made and attempted to make the entry "by means of a false written statement." To this indictment a

Argument for the United States.

215 U. S.

demurrer was filed and sustained, the court, after discussing several matters, saying:

"But it is apparent from the allegations of the indictment that the defendant is not in fact any of the persons within the contemplation of section 9 with relation to these particular importations, and cannot be considered either an owner, importer, consignee, agent or other person.

"The defendant Mescall was not making or attempting to make an entry of these goods. According to the charge he was, contrary to his duty, rendering assistance to the importer, who was the 'person' making the entry."

The case is here under the act of March 2, 1907, 34 Stat. 1246, which authorizes a writ of error "direct to the Supreme Court of the United States" in a criminal case wherein there has been a decision or judgment sustaining a demurrer to an indictment, when such decision or judgment is based upon the invalidity or construction of a statute upon which the indictment is founded.

Mr. Assistant Attorney General Fowler for the United States: An entry of goods within the meaning of § 9 of the act of July 24, 1897, embraces the entire transaction from the time the vessel enters port until the importer obtains an entrance of the goods into the body of merchandise in the United States; United States v. Baker, 24 Fed. Cas. 953; United States v. Cargo of Sugar, 25 Fed. Cas. 288; United States v. Legge, 105 Fed. Rep. 930; and every person performing any material act in accomplishing that purpose and violating the statute in any particular is liable to prosecution therefor.

One who is not an importer is not excluded from prosecution because under the rule of ejusdem generis the words "other person" exclude those not of the class of importer. 2 Lewis' Suth. Stat. Const., 2d ed., p. 833; 26 Cyc. 610; State v. Corkins, 123 Missouri, 56, 67; Bank v. Ripley, 161 Missouri, 126, 131; Willis v. Mabon, 48 Minnesota, 140, 156; Winters v. Duluth, 82 Minnesota, 127; Foster v. Blount, 18 Alabama, 687;

215 U.S.

Argument for Defendant in Error.

Misch v. Russell, 136 Illinois, 22, 25; Webber v. Chicago, 148 Illinois, 313; Maxwell v. People, 158 Illinois, 248, 253; Gillock v. People, 171 Illinois, 307; Matthews v. Kimball, 70 Arkansas, 451, 463; State v. Woodman, 26 Montana, 348, 353; Randolph v. State, 9 Texas, 521; State v. Solomon, 33 Indiana, 450; Matter of La Société Française, 123 California, 525, 530; State v. Holman, 3 McCord (So. Car.), 306; State v. Williams, 2 Strob. (So. Car.) 427; Tisdell v. Combe, 7 A. & E. 788, 792, 796; Young v. Grattridge, 4 Q. B. Cases, 166; Reg. v. Doubleday, 3 E. & E. 500.

Mr. George F. Hickey for defendant in error:

Section 9 of the Customs Administrative Act is a penal statute and should be construed strictly. United States v. Seventy-five Bales of Tobacco, 147 Fed. Rep. 127; Andrews v. United States, 2 Story, 202; United States v. Wiltberger, 5 Wheat. 76; United States v. Eighty-four Boxes of Sugar, 7 Pet. 453; Sutherland on Stat. Const., § 353.

In expounding a penal statute the court will not extend it beyond the plain meaning of its words. United States v. Morris, 14 Pet. 464.

Such a statute should be construed according to the manifest import of the words.

If the statute is ambiguous, the construction adopted should be that most favorable to the accused. The Schooner Enterprise, 1 Paine, 32.

Under § 9 indictments may not be brought against others than owners, importers, consignees, agents or other persons of the same class.

The entry contemplated undoubtedly is the entry originally made by the importer, or some one on his behalf, as required by the rules and regulations of the customs service. This was the entry alluded to in the act of June 22, 1874, § 21, 18 Stat. 190, and it was the entry provided for, regulated and defined by §§ 2785-2790, Rev. Stat. United States v. Seidenberg, 17 Fed. Rep. 227.