herewith is the 'collector's notice for legacy | competent authority of the question of his
and succession taxes' and the proper form liability. As soon as it was determined ad-
upon which to make a return of all the leg-versely to him he paid the taxes through the
acies and distributive shares arising from officer to whom the matter was referred by
personal property, etc., being in your charge the Secretary, and not to Sanborn, of whom
and trust as executor as aforesaid. Please he had no knowledge.
make a return to me at your earliest conven-
ience of all such legacies and distributive
shares or successions, and all other facts and
information as required by law to be made
by you as executor." In that letter he en-
closed a collector's notice for legacy and
succession taxes and the proper blank upon
which to make the required return.

It is stated in the finding that about one month after the death of Mrs. Wool the defendant called on Hawley "for aid in the matter of collecting the tax due from the estate of said John E. Wool."

In view of the findings, which, upon this writ of error, we must assume to be true, it is clear that the representation of the defendant to the Secretary of the Treasury, in his letter of August 31, 1873, that the executor of Wool had paid to him the sum of $14,668, for taxes due the government on legacies and successions, was not in accordance with the facts. The draft covering the taxes was delivered by the exccutor of Wool to Hawley, a supervisor of internal revenue, who, instead of sending it directly to the Secretary of the Treasury, as he might properly have done, and as, perhaps, he ought to have done, delivered it to Sanborn, who-so far as the record shows-performed no services in this business, except to call upon Hawley about [280] one month after the death of Mrs. Wool and ask his aid in the matter of collecting the taxes claimed from Wool's estate.

The suggestion that Sanborn was entitled to fifty per cent of all collections from the persons named in his contract, by whomsoever, or in whatever mode, such collections were made, is wholly inadmissible. The contract, upon its face, contemplated, as a condition of his receiving compensation, that he should do something of a substantial character in collecting the taxes alleged to be withheld.

We are of opinion that the payment of the $7,334 to the defendant was due to a misapprehension, upon the part of the Secretary of the Treasury, as to the nature of his serv ices-a misapprehension resulting from his representations to that officer-and that the amount so paid ought, in equity and good conscience, to be returned to the United States.

But we are of opinion that the court be-
low erred in allowing interest for any time
prior to the institution of this action. More
than ten years elapsed after the payment to
Sanborn before his right to retain the money
was questioned by suit or otherwise. When
the facts disclosed by the evidence were first
discovered by the officers of the government
whose duty it was to institute legal proceed-
ings against the defendant, does not appear.
It is entirely consistent with the record that
the long delay which occurred is without
excuse. In Redfield v. Ystalyfera Iron Co.,
110 U. 8. 174 [28: 109], the question was
whether the plaintiff was entitled, under the
It is, however, contended that the court circumstances of that case, to recover interest,
below erred in excluding certain evidence the action being against a collector' to re-
offered by the defendant, which would have cover damages for an illegal exaction of cus-
disclosed more fully the nature of the serv-toms dues. The court, after observing that
ices rendered. It is only necessary to say
upon this point that the evidence so offered
and excluded relates to efforts made by Haw-
ley and his employés to secure the payment
of the taxes claimed from Wool's estate.
That evidence, if admitted, would have
strengthened the case for the government, for
it tended to show that what Hawley did was
done under his own responsibility and duty
as an officer, and not in aid of Sanborn under
his contract for the collection of taxes from
Wool's estate. The defendant, it is true,
communicated to the Secretary of the Treas-
ury, in October, 1872, the fact that the gov-
ernment had a claim against that estate for
taxes. But that fact was known long before
that time to the collector of the district in
which the testator resided at his death, who
intended to enforce the rights of the govern-
ment when the widow died. The defendant
is not shown to have performed any services
whatever in the matter, except to request
the aid of Supervisor Hawley. That, how
ever, did not justify him in representing to
the Secretary of the Treasury that he had
collected those taxes from Wool's estate.
In fact, there was no effort upon the part of
the executor to evade payment of them. He
brought the matter himself to the attention
of the Secretary, and sought a decision by

interest is recoverable as of right, when re-
served expressly in the contract, or when
implied by the nature of the promise, said:
"But where interest is recoverable not as a
part of the contract, but by way of damages,
if the plaintiff has been guilty of laches in
unreasonably delaying the prosecution of his
claim, it may be properly withheld." We
think that the same rule should be applied
against the government when in a case like
the present one it has long delayed an asser-
tion of its rights, without showing some
reason or excuse for the delay, especially
when it does not appear that the defendant
has earned interest upon the money improp.
erly received by him.

The writ of error on behalf of the govern
ment presents a question of costs that must
be determined. After judgment was ordered
in the court below for the United States,
its attorney submitted a bill of costs, which
included, among other items, duly certified,
the sums paid for the actual and necessary
expenses of four clerks, two in the War De-
partment and two in the internal revenue
office at Washington, in going to and return.
ing from Boston, and in attending the court
there, by direction of the government, as wit.
nesses in its behalf. These sums amounted
to $212.20. The defendant objected to any

[281)

[282]

[283]

"Sec. 850. When any clerk or other officer of the United States is sent away from his place of business as a witness for the government, his necessary penses, stated in items and sworn to, in going, returning and attendance on the court, shall be audited and paid; but no milage or other compensation in addition to his salary shall in any case be allowed."

"Sec. 855. In cases where the United States are parties, the marshal shall, on the order of the court, to be entered on its minutes, pay to the jurors and witnesses all fees to which they appear by such order to be entitled, which sum shall be allowed him at the treasury in his accounts."

"Sec. 983. The bill of fees of the clerk, marshal and attorney, and the amount paid printers and witnesses, and lawful fees for exemplifications and copies of papers necessarily obtained for use on trials in cases where by law costs are recoverable in favor of the prevailing party, shall be taxed by a judge or clerk of the court, and be included in and form a portion of a judgment or decree against the losing party. Such taxed bills shall be filed with the papers in the cause."

allowance whatever in the taxation for costs
for the traveling or other expenses of wit-
nessc in the employment of the United
States. The question having been submitted
to the court, this objection was sustained.
United States v. Sanborn, 28 Fed. Rep. 299.
The whole subject of fees in the courts of
the United States is regulated by chapter 16,
title Judiciary, of the Revised Statutes. By
section 823 it is provided that the fees al-
lowed in that chapter and no other "compen-
sation" shall be taxed and allowed in the
courts of the United States, to the officers
therein named and to witnesses, except in
cases otherwise expressly provided by law;
leaving attorneys, solicitors and proctors to
charge and receive from their clients, other
than the government, such reasonable com-
pensation for their services, in addition to
the taxable costs, as may be in accordance
with general usage in their respective States,
or as may be agreed upon between the two
parties. Sections 824 to 827, inclusive, re-
late to the fees of attorneys, solicitors and
proctors, and section 828 to the fees of clerks.
Section 829 allows a marshal two per centum
"for disbursing money to jurors and wit-
nesses and for other expenses," and provides
that "in all cases where milage is allowed Upon full consideration of all the provis [284
to the marshal he may elect to receive the ions of the Statute, and in view of the settled
same or his actual traveling expenses to be practice in different circuits, we are all of
proved on his oath to the satisfaction of the opinion that the court below erred in holding
court." Section 846 provides: "The accounts that the word "audit" in section 850 means
of the district attorneys, clerks, marshals that the necessary expenses of the witnesses,
and commissioners of circuit courts shall be therein provided, are to be audited by the
examined and certified by the district judge proper executive department or officer, and
of the district for which they are appointed that nothing was to be taxed for the travel
before they are presented to the accounting or attendance of the clerks named in the
officers of the Treasury Department for set-government's bill of costs. The word
tlement. They shall then be subject to re-
vision upon their merits by said accounting
officers, as in case of other public accounts:
Provided, That no accounts of fees or costs
paid to any witness or juror, upon the order
of any judge or commissioner, shall be so
re-examined as to charge any marshal for an
erroneous taxation of such fees or costs.
Other sections of the Statute bearing more or
less upon the question before us are as fol-
lows, under the head of Witnesses' Fees:

"Sec. 848. For every day's attendance in court, or before any officer pursuant to law, one dollar and fifty cents and five cents a mile for going from his place of residence to the place of trial or hearing, and five cents a mile for returning. When a witness is subpenaed in more than one cause between the same parties, at the same court, only one travel fee and one per diem compensation shall be allowed for attendance. Both shall be taxed in the case first disposed of, after which the per diem attendance fee alone shall be taxed in the other cases in the order in which they are disposed of. When a witness is detained in prison for want of security for his appearance, he shall be entitled, in addition to his subsistence, to a compensation of one dollar a day.

"Sec. 849. No other officer of the United States courts, in any State or Territory, or in the District of Columbia, shall be entitled to witness fees for attending before any court or commissioner where he is officiating.

'audit," in that section, does not necessarily imply that these expenses must be audited, in the first instance, by an executive department or officer. The bill for such expenses is unlike the ordinary claim for per diem and milage. The Statute fixes the amount to be allowed for attendance and milage to witnesses entitled to claim therefor, and no auditing in respect to such claims is required; whereas, the items that enter into the account of a clerk or other officer, sent away from his place of business as a witness for the government, for his necessary expenses "in going, returning and attendance on the court," cannot well be known to the court or its clerk, and must be furnished by the witness himself. Those items are to be examined, looked over and adjusted; in other words, they must be audited The auditing contemplated by section 850 must be done, primarily, in the court in which the case is pending, and where it can be best determined what expenses have been necessarily incurred by the witness. This construction of the section is supported by section 983, which provides that the amount paid, that is, properly paid, to witnesses, shall be taxed by a judge or clerk of the court, and be included in and form a portion of the judgment or decree against the losing party; by section 855, providing that in cases where the United States are parties the marshal shall, on the order of the court, to be entered in its minutes, pay to the witnesses all fees to which

they appear by such order to be entitled,
which sum shall be allowed him at the
treasury in his accounts: and by section 846,
providing that the accounts of a marshal for
fees or costs paid to witnesses, upon the order
of any judge or commissioner, shall not be
so re-examined at the treasury as to charge
him for an erroneous taxation of such fees
or costs.

enter a judgment in favor of the United States
for the sum of $7,384, with interest at the rate
of six per cent per annum from October 15,
1883, the date of the commencement of this
action, and for its costs in the court below, as
indicated in this opinion.

UNITED STATES, Piff.,

0.

LESLIE G. CHASE.

(See S. C. Reporter's ed. 255-282.)

Mailing obscene letter-division in opinion.
The knowingly depositing in the mails of an ob-
scene letter, enclosed in an envelope or wrapper
upon which there is nothing but the name and
address of the person to whom the letter is writ-
ten,is not an offense within the Act of July 12, 1876,
chapter 186.

It is not disputed that the United States, [285] if successful in a suit, is entitled to have included in the judgment the statutory fees for per diem and milage for its witnesses, other than its officers, who may be sent away from their places of business to attend upon a court. And we cannot think it was intended by section 850 to deny to the govern-1. ment the right, when successful in a suit, to have even the necessary expenses of witnesses of the class described in that section included in the judgment for costs; or that the United States intended to remit to its defeated adversary not only witness fees for per diem and milage, but the necessary expenses of witnesses who happened to be in its employment, and whom it sent away from their places of business to testify in its Argued Mar.28,31,1890. Decided April 28,1390. behalf. As a person of that class receives,

[286]

2. The question whether an indictment charges the
defendant with any offense is too general to be
the subject of a certificate of division.
[No. 241.]

Na

while absent, his stipulated salary, and is ON a certificate of division in opinion be

tween the judges of the Circuit Court of
the United States for the District of Massachu-
setts, upon motion in arrest of judgment, after
plea of guilty and before sentence on an in-
dictment for mailing an obscene letter.

The facts are stated in the opinion.
Mr. Wm. A. Maury, Assistant Atty-Gen.,
for the United States:

paid, in that way, for his time, it is not
deemed just that he should also receive mil-
age and per diem. But, instead thereof, he
is allowed his necessary expenses, which be-
ing audited, by or under the direction of the
court upon which be attends as a witness,
he is entitled to have paid to him; and the
government, being under an obligation to
pay them, is entitled to have the amount so Upon the point whether an obscene writing,
audited included in its bill of costs, and in to come within the law, must be a publication
any judgment rendered in its favor. In other in the sense of a book or pamphlet, or may be
words, when the government is successful in private such as a writing contained in an en-
a suit, the "necessary expenses" of its wit-velope or wrapper on which is inscribed only
nesses, of the class described in section 850, the address, there is considerable conflict of
takes the place, in its bill of costs, of the opinion.
per diem and milage which, but for that sec-
tion, would have been taxed and allowed in
its favor, just as a marshal may elect to take
his actual traveling expenses, instead of mil-
age, where milage is allowed to him.

U. 8. v. Gaylord, 17 Fed. Rep. 438; U. S.
v. Hanover, 17 Fed. Rep. 444; U. 8. v. Morris,
18 Fed. Rep. 900; U. S. v. Thomas, 27 Fed.
Rep. 682; U. S. v. Foote, 13 Blatchf. 418;
Thomas v. State, 103 Ind. 420; U. S. v. Wil-
inliams, 3 Fed. Rep. 484; U. S. v. Comerford,
25 Fed. Rep. 902; U. 8. v. Mathias, 36 Fed.
Rep. 892; Ú. S. v. Hartwell, 73 U. S. 6 Wall.
396, 396 (18: 832).

These views find additional support section 851, which allows the court, subject to certain restrictions, to fix the compensation to be allowed to a seaman or other person sent to this country by a United States minister, chargé d'affaires, consul, captain or commander, to give testimony in a criminal case pending in a court of the United States. This section, as well as section 850, is brought forward from the third section of an Act passed in 1853 to regulate "fees and costs" in the circuit and district courts of the United States, in which Act both sections appear under the head of Witnesses' Fees. 10 Stat. 167, 168, chap. 80. As the court was to fix the compensation to be allowed to witnesses under section 851, it is a reasonable interpretation of section 850 to hold that the auditing therein provided for was also to be, primarily, under its direction.

For the reasons stated, we are of opinion that the court below erred in disallowing the item in the bill of costs of $212.20.

The judgment is reversed with directions to

The records of a court of justice are not to be used for spreading obscenity before the public.

U. S. v. Foote, 13 Blatchf. 419; U. S. v.
Bennett, 16 Blatchf. 339; Wh. Cr. Pl. and Pr.
(9th ed.) § 177.

But see, contra, State v. Hayward,83 Mo. 299.
Mr. Warren O. Kyle, for defendant:
The questions should not be answered be-
cause there is a fatal defect in the indictment.

U. 8. v. Buzzo, 85 U. S. 18 Wall. 125
(21:812); U. S. v. Britton, 108 U. S. 207
(27: 701); Com. v. Boynton, 12 Cush. 499, 500,
and cases cited; Com. v. Harris, 13 Allen, 539;
Com. v. Collins, 2 Cush. 558; U. S. v. Carll,
105 U. S. 611 (26: 1135), and cases cited; Com.
v. Reily, 9 Gray, 2; U. 8. v. Corbin, 11 Fed.
Rep. 238; U. S. v. Reed, 1 Lowell, 232; Com.
v. Dean, 110 Mass. 64; Com. v. Bean, 11 Cush.
414; Com. v. Lindsay, 11 Cush. 415.

[255]

256]

A letter is not within the inhibition of the | be non-mailable matter by section one (1) of an
Act of Congress of July 12, 1876, § 1, unless Act of Congress approved on the twelfth day
there is written or printed upon the envelope of July, A. D. 1876, or by any law of the
thereof "indecent, lewd, obscene or lascivious United States.
delineations, epithets, terms or language."
The adjudicated cases on this point are
divided, those sustaining indictments in cases
similar to the one at bar being:

U. S. v. Gaylord, 17 Fed. Rep. 438; U. S. v.
Hanover, 17 Fed. Rep. 444; U. S. v. Britton,
17 Fed. Rep. 731; U. 8. v. Morris, 18 Fed.
Rep. 900; U. S. v. Thomas, 27 Fed. Rep. 682.
The cases against indictments in similar cases

are:

U. S. v. Williams, 3 Fed. Rep. 484; U. 8. v.
Loftis, 12 Fed. Rep. 671; U. S. v. Comerford,
25 Fed. Rep. 902; U. S. v. Mathias, 36 Fed.
Rep. 892; U. 8. v. Huggett, 40 Fed. Rep. 636.

Mr. Justice Lamar delivered the opinion of

the court:

"5. The indictment does not charge the defendant with any offense."

At the hearing in the circuit court upon the motion in arrest of judgment, the following questions arose upon which the judges by whom the court was held were divided in opinion, viz.:

"First. Is the knowingly depositing in the mails of an obscene letter, inclosed in an envelope or wrapper upon which there is nothing but the name and address of the person to whom the letter is written, an offense within the Act of July 12, 1876, chapter 186?

66

Thereupon, at the request of the counsel for the United States, it is ordered that these questions be stated as aforesaid and be certified under the seal of this court to the Supreme Court of the United States at its next session."

Objection is taken to the consideration of the questions presented by this certificate of division, for several reasons, none of which are deemed sufficient to preclude our taking jurisdiction of the case; and we shall therefore proceed to consider the questions certified in the order they are arranged in the certificate.

"Second. Does this indictment allege that
the defendant deposited, or caused to be de-
posited, for mailing or delivery, anything de-
This was an indictment on the Act of Con-clared to be non-mailable matter by that Act
gress of July 12, 1876, chapter 186, found and or by any law of the United States?
returned in the district court, and remitted, "Third. Does this indictment charge the de-
pursuant to section 1087 of the Revised Stat- fendant with any offense?
utes, to the court below, charging that on the
twenty-fifth day of January, 1876, at North
Attleborough, in the District of Massachusetts,
"Leslie G. Chase did unlawfully and know-
ingly deposit and cause to be deposited in the
mails of the said United States, then and there
for mailing and delivery, a certain obscene,
lewd and lascivious letter, which said letter
was then and there non-mailable matter, as de-
clared by section one of an Act of Congress
approved on the twelfth day of July, in the
year of our Lord one thousand eight hundred
and seventy-six, and which said letter is and
then and there was so grossly obscene, lewd
and lascivious that the same would be offensive
to the court here, and is unfit and improper to
appear upon the records thereof, wherefore the
jurors aforesaid do not set forth the same in
this indictment, which said letter was then and
there inclosed in a certain paper wrapper,
which said wrapper was then and there ad-
dressed and directed as follows, that is to say,
'Watchweer Print, Providence, R. I.,' against
the peace and dignity of the said United States,
and contrary to the form of the statute in such
case made and provided."

Sec. 1 of the Act July 12, 1876 (19 Stat. 90), on which this indictment is founded, is as follows:

"Every obscene, lewd or lascivious book, pamphlet, picture, paper, writing, print or other publication of an indecent character, and every article or thing designed or intended for the prevention of conception or procuring of abortion, and every article or thing intended or adapted for any indecent or immoral use, and every written or printed card, circular. book, pamphlet, advertisement or notice of any kind giving information, directly or indi rectly, where or how, or of whom, or by what

After a plea of guilty had been entered and
before sentence, a motion in arrest of judg-means, any of the herein before mentioned
ment was made, on the following grounds:

"1. The indictment does not set forth the contents of the letter which is alleged to be obscene, lewd, lascivious and non-mailable, nor does it describe said letter or any part thereof, nor does it in any way identify said letter.

"2. The indictment does not allege that the defendant knew the contents of said letter at the time of the alleged deposit thereof in the mails of the said United States.

3. The indictment does not allege that the defendant deposited said letter in the mails of the said United States for the purpose of circulating and disposing of, or of aiding in the circulation or disposition of, anything declared to be non-mailable matter by any law of the United States.

"4. The indictment does not allege that the defendant deposited, or caused to be deposited, for mailing or delivery, anything declared to

matters, articles or things may be obtained or
made, and every letter upon the envelope of
which, or postal card upon which, indecent,
lewd, obscene or lascivious delineations, epithets,
terms or language may be written or printed,
are hereby declared to be non-mailable matter.
and shall not be conveyed in the mails, nor de
livered from any postoffice nor by any letter-
carrier; and any person who shall knowingly
deposit, or cause to be deposited, for mailing
or delivery, anything declared by this section
to be non-mailable matter, and any person who
shall knowingly take the same, or cause the
same to be taken, from the mails, for the pur-
pose of circulating or disposing of, or of aid-
ing in the circulation or disposition of, the
same, shall be guilty of a misdemeanor, and
shall for each and every offense be fined not
less than one hundred dollars nor more than
five thousand dollars, or imprisoned at hard

[25

[2

labor not less than one year nor more than ten | Rep. 636, 641, makes the tollowing apt and,
years, or both, at the discretion of the court." to our minds, conclusive remarks: I have
taken the trouble to examine with care the
The contention on the part of the United legislation concerning our postal affairs, and
States is, that the term writing," as used in do not find a single instance where Congress
this Statute, is comprehensive enough to in- bas ever used any other word to include 'let-
clude, and does include, the term "letter," as ters' than that word itself, except such expres-
used in the indictment; and it is insisted, sions as the mail,' 'mail-matter,' bag or
therefore, that the offense charged is that of mail of letters,' etc. Whenever the legis
unlawfully and knowingly depositing in the lation in hand requires specific classification or
mails of the United States an obscene, lewd enumeration, I find no word ever substituted
and lascivious "writing," etc., etc.
for 'letters' to express that which is commonly
We do not concur in this construction of the known as letters in relation to the postal serv
Statute. The word "writing" when not used ice. We have letter and newspaper envel-
in connection with analogous words of more opes.' letter correspondence,' registered let-
special meaning, is an extensive term, and ters,' 'unclaimed letters,' 'dead letters,' 're-
may be construed to denote a letter from one quest letters,' 'non-delivered letters,' 'all let-
person to another. But such is not its ordi- ters and other mail matter,' 'foreign letters,'
nary and usual acceptation. Neither in legis-letters or packets,' 'letters and packets,'
lative enactments nor in common intercourse
are the two terms "letter" and "writing"
equivalent expressions. When in ordinary in-
tercourse men speak of mailing a "letter" or
receiving by mail a "let er," they do not say
mail a writing" or receive by mail a "writ-
ing." In law the term "writing" is much
more frequently used to denote legal instru-
ments-such as deeds, agreements, memoranda,
bonds and notes, etc. In the Statute of
Frauds the word occurs in that sense in nearly
every section. And in the many discussions
to which this Statute has given rise, these in-
struments are referred to as "the writing" or
"some writing." But in its most frequent and
most familiar sense the term "writing" is ap-
plied to books, pamphlets and the literary and
scientific productions of authors. As for in-
stance, in that clause in the United States Con-
stitution which provides that Congress shall
have power "to promote the progress of science
and useful arts, by securing for limited times
to authors and inventors the exclusive right to
their respective writings and discoveries."

In the Statute under consideration, the word "writing" is used as one of a group or class of [259] words-book, pamphlet, picture, paper, writing, print-each of which is ordinarily and prima facie understood to be a publication; and the enumeration concludes with the gen eral phrase “or other publication," which applies to all the articles enumerated, and marks each with the common quality indicated.

It must therefore, according to a well-defined rule of construction, be a published writing which is contemplated by the Statute, and not a private letter, on the outside of which there is nothing but the name and address of the person to whom it is written.

We do not think it a reasonable construction of the Statute to say that the vast mass of postal matter known as "letters" was intended by Congress to be expressed in a term so general and vague as the word "writing," when it would have been just as easy, and also in strict accordance with all its other postal laws and regulations, to say "letters" when letters were meant; and the very fact that the word "letters" is not specifically mentioned among the enumerated articles in this clause is itself conclusive that Congress intended to exclude private letters from its operations.

Upon this point Judge Hammond, in his opinion in United States v. Huggitt, 40 Fed.

letter postage,' letter mail,' letter and other mail matter, and such like, almost innumerably; and these I have taken quite at random from the Revised Statutes. Can it be possible that Congress, then, wishing to include 'letters' in any particular and accurate enumeration, shall drop that word so imbedded in our Postal Laws and that of our ancestors beyond the sea, and adopt some unfamiliar, inferior and in every sense ambiguous term to express the idea ?"

A further argument in support of the view
we have asserted is found in the fact that the
Statute, after it has declared by enumeration,
in the clause under consideration, what articles
shall be non mailable, adds a separate and dis-
tinct clause declaring that every letter upon
the envelope of which indecent, lewd, ob-
scene or lascivious delineations, epithets, terms
or language may be written or printed,
shall not be conveyed in the mails," and the
person knowingly or willfully depositing the
same in the mails "shall be deemed guilty of
a misdemeanor," etc. This distinctly addi
tional clause, specifically designating and de-
scribing the particular class of letters which
shall be non-mailable, clearly limits the inhibi-
tions of the Statute to that class of letters alone,
whose indecent matter is exposed on the en-
velope. It is an old and familiar rule that,
"where there is, in the same statute, a particu-
lar enactment, and also a general one, which,
in its most comprehensive sense, would include
what is embraced in the former, the particular
enactment must be operative, and the general
enactment must be taken to affect only suck
cases within its general language as are no
within the provisions of the particular enact-
ment." Pretty v. Solly, 26 Beav. 610, per
Romilly, M. R.; State v. Comr. of Railroad
Taxation, 37 N. J. L. 228. This rule applies
wherever an Act contains general provisions
and also special ones upon a subject, which,
standing alone, the general provisions would
include. Endlich on the Interpretation of Stat-
utes, 560.

The decisions of the circuit courts upon the
question presented to us by this certificate have
been conflicting. Those sustaining indictments
in cases similar to this hold that the term "writ-
ing" comprehends "letters," and insist that
even if the general phrase "other publication
is allowed to apply to the word, the sending or
mailing a letter by one person to another is a

[260]

[261]