¶1I concur in the result but not for the reason stated. When the act under which we are asked to affirm the judgment was passed in '1791, to drink tobacco was a common phrase. It was used in that sense by the best authors, like Spenser, Dryden, Pope and rare Ben. Johnson. Webster says, to drink is “to absorb” “to take in”. Do you not often meet *202men who have absorbed and taken in so much tobacco that you can scent them as far as the hound can the fox ? According to these definitions they drink it. He says “ to smoke as tobacco” is now obsolete, but I do not think it was when the act in question was passed, and in construing a statute have we not the right to use the words thereof in the same sense in which they were used at the time of its enactment. I think we have. Iii 1620 George Wither wrote a poem on the weed, the refrain of which was
¶2“Thus thinke then drinke tobacco.”
¶3Erorn the discovery of the plant until this century the word was used in this sense.
¶4Joaquin Miller says: “I drink the winds as drinking wine.” If a man can drink wind I think he can drink tobacco smoke, vile and disgusting as it is. A man is compelled to drink it, by having it puffed in his face, on all occasions and in all places, from the cradle to the grave. It is a drink, and I would set aside the verdict for that reason.