Nevin v. Ladue

3 Denio 43 | N.Y. Sup. Ct. | 1846

By the Court, Jewett, J.

This case involves a question upon the true construction of the statute. (1 R. S. 680, § 15.) It is in these words, “ Whoever shall sell any strong or spirituous liquors, or any wines, in any quantity less than five gallons at a time, without having a license therefor, granted as herein directed, shall forfeit twenty-five dollars.” If ale or strong beer answers the description of strong or spirituous liquors, the action was well sustained. I am unable to entertain a doubt but that both come within the definition of strong or spirituous liquors. Beer is defined by Webster to be “ a spirituous liquor made from any farinaceous grain, but generally from barley, which is first malted and ground, and its fermentable substance extracted by hot water. This extract or infusion is evaporated by boiling in caldrons, and hops or some other plant of an agreeable bitterness added. The liquor is then suffered to ferment in vats.” Ale is a liquor made from an infusion of malt by fermentation; it chiefly differs from beer, in having a smaller proportion of hops—and both are intoxicating liquors. The manufacture of beer and its use as an intoxicating drink, are of very high antiquity. Herodotus tells us, that owing to the want of wine, the Egyptians drank a liquor fermented from barley. (Lib. 2, chap. 77.) Ale or beer was in common use, in Germany, in the time of Tacitus. “ All the nations,” says Pliny, “ who inhabit the west of Europe, have a liquor with which they intoxicate, themselves, made of corn and water. The manufacture of ale was early introduced into England. It is mentioned in the laws of Ina, king of Wessex; and is particularly specified among the liquors provided for a royal banquet in the reign of Edward the Confessor, (McCulloch’s Com. Dic., vol. 1, p. 9.) That the legislature intended to prohibit the sale, under the regulations mentioned in the 15th section, of all intoxicating liquors, I think is strongly indicated by the provision of the 29th section of the same statute. It enacts that “ No person shall be subject to be prosecuted by virtue of the provisions of this title, for selling metheglin, currant wine, cherry wine, or cider.” This operates as an exception to the prohibition which I think is manifestly contained in the former section. Each is strong liquor, intoxicating in its nature. It is urged by the counsel for the defendant that the legislature, by the use of the words “ strong or spirituous,” meant to include only such liquors as are produced by distillation. It is quite pertinent to ask why, if this were so, it was necessary to insert the 29th section, as neither of the kinds of liquor there specified are thus produced. I think this a plain case, and that the judgment should be affirmed.

Judgment affirmed.