leged liability, for' negligence in the administration of the affairs of the bank, and proposes to appropriate all that can be realized from the individual liability of the stockholders, and leaves nothing in any direc. tion to which this complainant, can look. that this case ought to bean exception. ,The answer is that all these proceedings of the receiver are in strict conformity with the statute, which was in force at the time this lease was made, and which this complainant was bound to recognize. And, having failed to provide against the contingency that has arisen, he is not entitled to the relief which he seeks by this bill of complaint. The demurrer, therefore, will be sustained, and the bill dismissed.
(JirlJuit Oourt, E. D. :t1rkall,a,. June 80, 1888.)
EVIDENCE-JUDICIAL NOTtCE-WORDS OF THE ENGLISH LANGUAGE.
Courts are bound to take notice of the meaning of words in the EngliSh language, and of such matters of common knowledge and science as are or may be known to all men of ordinary understanding and intelligence.
Cider is an alcoholic beverage, ,obtained by the fermentation of the juice of apple's. and cannot lawfully be sold in a state whose statutes prohibit the sale of" alcohol, or any spirituous, ardent, vinous, malt. or fermented liquors... <SVUabm bt/tlu Oourj,)
2. INToxICATING LIQUORS-WHAT
A.t Law. A.ction by the Eureka Vinegar Company .against the Gazette Printing Company for publishing the statement that the plaintiff, as the vendor of Old Orchard cider, was amenable to the prohibition laws of the state. Frank M, Estes, F. T. Vaughan, and W. J. Terry, for plaintiff. John McOlure and Sandera & Watkins, for defendant. CALDWELL, J. The substance of the plaintiff's complaint is that it manufactured for sale, from pure apple juice, a cider known as "Old Orchard Cider;" that this cider could be lawfully sold as a beverage in the prohibition districts in this state, and lawfully sold elsewhere in the state without the payment of the license fee required by law for the sale of liquor; that this cider was introduced into this state and became popular, and that the plaintiff was selling great quantities of it to·dealers at a large profit, when the defendant destroyed or very much lessened the .trade, and the prodts derived froniit, by maliciously publishing in its paper the false statement that persons selling the cider were amenable to the liquor laws of the state, and could nllt lawfully sell such beverage in the prohibition districts at all, nor elsewhere in the state without paying the license fee required of dealers in liquors; that this malicious and false publication deterred its patrons from making further purchases of the cider, and prevented plaintiff from gaining any new customers, and
EUREKA VINEGAR . CO. 11. GAZETTE. PRINTING CO.
hroke up, or greatly diminished, the sale of the 'Cider in this state. whereby the plaintiff was greatly damaged, etc. We wiUput aside, for the present, any discussion of the questions whether, this .action, on. the face of the complaint, is one for libel on the plaintiff in its trade and business, or is an action for damages resulting to the plaintiff from a false statement of the defendant as to the quality and constituents of the cider manufactured' by the plaintiff, or both, and, if the latter, whether the plaintiff must allege special damages, and set the same out with particularity. . Thestatement in the Gazette that the vendors of Old Orchard cider were amenable to the laws of the state regulating the liquor traffic is the marrow of the plaintiff's case. If that statement is true, the plaintiff confessedly has no cause of action. In view of this fact, it is useless to take up the further time of the court with this case. Courts are bound to take notice of the meaning of words in the English language, and of such matters of science as are well known to all men of common understanding and intelligence. Brown v. Piper, 91 U. S. 42; Teth'1Jh!.6 v. Phillip8, 99 U. S. 592; King v. Gallun, 109U. S. 99, 3 Sup. Ct. Rep. 85; Ah Kow v. Nunan, 5 Sawy. 560; Waller 38 Ark. 656; 1 Whar.t. Ev. §§ 282, 335. The meaning of the word "cider," its method of production, and its general constituents, are matters of common knowledge, and upon which all books of accepted authority agree. No court would be justified in affecting ignorance of these facts, or in closing its eyes to them, in a case requiring their application. In a popular sense, the term "cider" includes expressed juice of apples, either fermented or unfermented, and hence the terms "sweet cider" and "hard cider" are in popular use to distinguish between the juice of the apple before and after fermentation. In strictness, the juice of the apple before fermentation is simply apple juice, and it is only by fermentation that it becomes cider; and, when the word "cider" alone is qsed in law or commerce, it is understood to mean the fermented juice of apples. But there is· no pretense that the plaintiff's cider is sweet or unfermented apple juice. The plaintiff's counsel concede that it is what it is stated to be in the circular of the plaintiff appearing in the complaint, viz., "Old Orchard hard cider." What, then, is cider? In the Encyc1opredia Britannica, (9th Ed.) tit. "Cider," it is thus defined: "Cider, an alcoholic beverage obtained by the fermentation of the juice of apples." The following are the definitions of other standard authorities: ".A: fermented liquor made from the juice of apples," (Brande's Encyslopredia of Science, Literature, and Art, tit. "Cider;") "a fermented liquor made from the juice of apples,-formerly used for all kinds of strong liquors except wine," (Worcest. Dict. tit. "Cider.") Mr. Worcester, in his definition of cider, gives its supposed Greek equivalent, and translates it" strong drink;" and in Wyckliffe'stninslation of the New Testament the passage in Luke i. 15, which in. the authorized version reads, "He shall drink neither wine nor strong drink," is translated, "Hel8hall not drink wine nor cider." . are the constituentsof this "fermented liquor?" Alcohol is one. Alcohol ill a volatile organic body, constantly formed during the fermen-
tlltion of the. iregetable juices, containhig sugllr in solution. In populllr it is the intoxiclltingprinciple of fermented liquor. It is exclusively, produced by the process of fermentation. Ferment, the substance ,which is necessary to the process of fer/llentation, is naturally present· in the juice of the Ilpple; Ilnd in temperate or warm climates fer_ mentation takes place, Ilnd alcohol is generated, until the saccharille matter in the juice is consumed, without the addition ohny ferment or other substance. In the process of fermentation forty-five pounds of sugar are resolved into twenty-three of alcohol, and twenty-two of carbonic Ilcid. The equivalent ofone pound of Illcohol in fluid measure is one pint and About three fluid ounces. Encyclopredia Britannica, tit. "Alcohol and Ferment;" Brande's Encyclopredia of Science, Literature and Art;, American Cyclopredia, tit. "Alcohol." The fermentation which generatesalcohoI from vegetable juices is cRilledl'vinous" or "alcoholic;"
. "The liqUids which have undergone it are called - vinous liquors,' and are of various kinds. Thus the fermented juice of the grape is called - wine:' of the apple, -,cider;' and the fermented infusion of malt. beer. * * * Alcohol. being the product of the vinous fermentation. necessarily exists in aU vinous liquills. and may be obtained from them by distillation." U. S. DISpensatory, (l5th Ed.) 140.
The quantity of alcohol in vinous or fermented liquors is variable, but the average per cent. is common knowledge.
"The following is the list of these vinous liquors. together with the percentage of alcohol which they contain. as ascertained by Mr. Brande: Cider, 5.21 to 9.87; Edinbul'gh ale. 6.20: brown stout. 6.80: London porter. 4.20: small beer. 1.28. Dr. H. Bence Jones gives the following p!:lrcentage of alcohol in the under-named liquors: Cider. from 5,4 to 7.5; bitter ale, from 6.6 to 12.3; porter, from 6.5 to 7; brown stout,cfrom 6.5 to 7.9." U.S. Dispensatory, 1530.
. The following;is an extractfromMr. Brande's table showing the quantity of alcohol in all the liquors known to commerce:
"Cider, highest average, 9.87, lowest, 5.21; Perry, average of four samples, 7;26: mead. 7,32: ale. Burton. 8.88: ale. Edinburgh, 6.20: ale, Dorcester. 5.56; brown stout, 6.80: London porter, average. 4.20; small beer, 1.28!" Brande's EncyclopOOdia of Science, Literature, and Art, tit. "Wine." .
e, . . ' ,
According to Wagner's Handbook of Chemical Technology, lager-beet contains from 3.3 to 5 per cent of alcohol.! It is useless to multiply ci.
1 The following table shOWing the pEltcentage of alcohol in the liquors naIried, wasprepared and pUblished by Dr. John B.·Bond, M. D., and late profellsor of chemistry iu the Arkansas Medical College:
Whisky :.: ··········· Brandy , .. American wines ..·········· European wines . Officinal white wine U. S.'P.. Officinal red wine·V. S. P .. Cider , , . Beer:' Getluan lager.·..;· .
Per cent. of alcohol by , weight;
87 to 47 8 to 20
Remarks. Scotch and Irish 42; American, rarely, 50. Pute grape, 46. White Concord 8; best California sherry 21}' Champagne, 9.5; best sherry, 18.5. Should not vary from these limits. Stiould not vary from these limits, "Hard Cider" is still stronger in alcohoL Wirtzburg 4; Munioh 4.8; Vienna 4.1.
44 to 50
9.5 to 18.5 10 to 12 10 to 12 5.2 to 9.9 8.3 to 5.1
EUREKA VINEGAR· CO. tI. GAZETTE PRINTING CO.
tations. It is enough to say that the percentage of alcohol in cider, in round numbers, ranges from 5 to 10 per cent., which is a considerable percentage more than is contained in most ale and beer, and some wines. It is not questioned that ale, porter, stout, lager-beer, etc., are within the statutes of the state regulating the liquor traffic, /lnd why should an alcoholic, vinous, or fermented liquor, containing more alcohol than any of these beverages, be exempt? It is not. It is within the very letter of the statute. How completely and effectually the statutes cover cider will appear by reference to theirlangllage. In section 1878, Mansf. Dig., prohibiting the sale of liquor to minors, the language is: "Any ardent, vinous, malt, or fermented liquor;" in the license act, section 4507, "Alcoholorany spirituous, ardent, vinous, malt, or fermented liquors;" and in the county local option act, section 4513, "Vinous, ardent, malt, or fermented liquors." There is a wide difterence between the language of the early statutes, which imposed a tax on the liquor traffic for revenue only, and the present statutes of this state, which have for their chief object the total or partial suppresEtion of the evils resulting from the sale of all beverages containing alcohol in an appreciable quantity. Statutes designed to raise revenue only, are usually limited in their operation to those liquors which enter most largely into commerce, and of which the consumption is the greatest. Such statutes do not commonly embrace those domestic fermented liquors, which are produced in limited quantities, and have little commercial value. as long as all other kinds of liquor are to be had in the market. The federal license tax, which is imposed for revenue only, is limited to distilled spirits, wine, Ilnd malt liquors; and some of the earlier revenue statutes of the states were restricted in their operation to "brandy, whisky, or other distilled spirits," or "brandy, whisky ,or other intoxicating liquor;" It was contended, and sometimes llo decided, that malt, vinous, and fermented liquors, such as beer, cider, and wine, were not within the purview of these statutes. But the statutes oftbis state leave no room for such contention. Their enactment was largely inspired by moral considerations, and they are designed to lluppress or diminish the.vices and evils flowing from the sale of any and all kinds of alcoholic beverages. It was foreseen that the prohibition and high license statutes of the state would be fruitful of schemes apd devices of all kinds to evade them. See, on this subject, .u. S. v. Stafford, 20 Fed. Rep. 720. It was obvious that, if a single beverage containing alcohol was omitted frQm the statutes, that that beverage, however sparingly produced or little considered, while other and better or stronger liquors could be had, would speedily take the place of the banished liquors, and result in a practical re-establishment of the liquor traffic. To prevent this, the legislature, by a comprehensive and all-embracing provision, brought within the statutes "alcohol, or any spirituous, ardent, vinous, malt, or fermented liquors." Every beverage of which alcohol is a constituent part necessarily falls under one of these heads. All the processl;ls fol' the productio,Q.c of all kinds of liquors are enumerated; and all the products of these processes are within tIle statutes, without r17
gard to the quimtity of; alcohol they contain, or ·fue names they bear. H any one of theM products is 'toib'eexcepted from the operation of the statut it must be done by the ,legislature. Thus far the only S, tion. made by the legislature is a qualified one in favor of wine; the courts cannot add . I have looked with some care· through a great many special· acts of prohibition, and' have not found one under which an alcoholic, vinous, fermented, or intoxicating liquor can be lawfully sold as a beverage. The result is that there is not a spot in the state where this cider can enjoy immunity ftom the operation.ofthe liquor laws. All the acts include alcoholic, vinous, and fermented liquor j and cider falls under all of these heads. It is also an intoxicating liquor, for it is common knowledge that a fermented beverage which contains from 5 tolO per cent. of al. cohol, which is freely drunk by the glassful, will produce intoxication. This is'a fact of daily observation in communities where such beverages are sold, Whisky contains from 40 to 50 per cent. of alcohol, and cider contains one-fifth as much alcoho1'l:ts whisky, so that drinking a pint of cider is equivalent to drinking one-fifth of a pint of whisky. But to bring it under the operation of the liquor laws of the state it is not essential that it should be an intoxicating liquor. It is enough that it is a "vinous 'or fermented liquor." In Waller v. State, 38 Ark. 656, the indictment charged the defendant with "the sale of one pint of beer, malt and fermented liquor." On the trial the state did not prove that beer was a malt or fermented liquor, or that it waS intoxicating. The defendant was convicted, and the supreme affil'Iiled the conviotion, saying: "It was not proved that the lagerbeel'soJd to the minor was malt and fermented liquor; but the court U'ested this as matter of common knowledge." The question whether was intoxicating, was not:alluded to, because by the statute (sedimf 1878, Mansf. Dig.) the offense was complete by the sale of malt or fermented liquor without regard to its intoxicating properties. The tables show thatthe;average percentage of aloohol contained in cider is about double that contained in lager-beer. In about two-thirds of the state, under the operation of local option laws and special acts of prohibition, the sale of liquor is prohibited. The statement is made in the plaintiff's circular, appearing in the complaint, that, "We sell it (Old Orchard cider) in all the prohibition country." It seems incredible that such an open and palpable violation of the laws of the state should have gone on unchallenged for a single day. That the plaintiff was able to make any sales is probably due to the seductive and apparently innocent name of the beverage. If it had been labeled what in law and in fact it is, an alcoholic, vinous, fermented, and intoxicating liquor, it isnot likely that a single barrel could have been sold. It is nottme that there is nothing in a name; there is often much in,it that is misleading. The sale of this cider, in prohibition districts, was in violation of law, and inflicted the evils of the liquor traffic all communities against their expressed will. Its sale outside of the limits of such districts, by un-
UNITED STATES 11. CLAPOX.
licensed dMlers, was in violation of law, and an evasion of the large license tax imposed on liquor dealers, varying from $600 to $1,000, and was an injustiee to those liquor dealers who honestly paid their license These facts would have justified the use by the defendant of much more vigorous and earnest language than any that is found in the articles oomplahied of. It is the duty of the press to fearlessly expose a traffic in violation of law, or prejudicial to the public morals, or which seeks to evade the revenue laws of the state. The plaintiff suffered a nonsuit.
(DiBtrict Oowrt, D. Oregon. July 18, 1888J
to, mDJA1'I'B-UHATILLA 011' Pm!lsIDlIll'l'T. " The is by the treaty of June 9, 18&5, (12 St. 948,) and the Revised Statutes. (sections 441, 463, 46.5,) to make rules for the government of the Indians on the Umatilla reservation, including the establishment of an Indian court and police, and the definition of"Indian oJfeneee" and the meas· lJre therefor. 2. 8AltE-MiSDEMEAl'I'ORs-ADULTERY. The terlll "misdemeanor." as used in No.9 of the rules promulged by the secretary of tbe interior On December 2, 188.2. for the lovernment of the In· , diansol). the Umatilla and, other reservations, includes adultery.a. REso-q:m"':'REV. ST. U. S. 5401. " . woman, arrested by the Indian police on the Umatilla reserva· tion, on a charge of adultery committed thereon. was committed to the Indian jail for trial before the "court of Indian offenses." and, while so committed, was rescued and set at liberty by the defendants. Held, that tbey thereby committed the crime of rescue, as defined by eection5401 of the Revised StatIltes, by forcibly setting a eerson at liberty who was committed for "a crime against the United States
lItl. tM (Jourt,)
Information for a Rescue. Lewis L. McArthur, for plaintiff. John J. 'Balleray, for defendants.
DEADY, J. The defendants are accused by this information of a violation of section 5401 of the Revised Statutes, which provides: ..Every person who by force sets at liberty or rescues any person who, befote conviction, stands committed for any capital crime against the United States, or who :by force sets. at lioerty or rescues any person committed for or convicted.of a,nr offense other than capital. shall be fined not more than $500, and more than one year." It is alleged in the information that on March 27, 1888, the defendants were Indians residing on the Umatilla Indian reservation, and under the charge of a United States Indian agent; that one Minnie was then an Indiall married to an lndian, both of whom then resided on said reservation, and were under the charge of said agent; to