he did, make himself personally responsible for its payment? It seems to us that there can be but one answer to this question, and that is that he did. There is nothing on the face of the note to show that there is any principal back of the defendant. He signed his own name, and wholly failed to indicate, if he had a principal, who or what the principal was. The word | President," which he added to his name, must therefore be regarded as a mere descriptio persona. Cal. Sup. Ct., May 19, 1888. Hobson v. Hussett. Opinion by Belcher, C. C. TELEGRAPH-LIABILITY FOR NEGLIGENCE-FAILURE TO DELIVER MESSAGE.-A condition in a telegraph blank relieving the company from liability for mistakes or delays in the transmission or delivery of unrepeated messages, does not reasonably extend to failure to deliver after transmission. Hibbard v. Telegraph Co., 33 Wis. 564; Telegraph Co. v. Graham, 1 Colo. 182; Telegraph Co. v. Fenton, 52 Ind. 5, 6; True v. Telegraph Co., 60 Me. 18; Birney v. Telegraph Co., 18 Md. 341; Bartlett v. Telegraph Co., 62 Me. 217; Telegraph Co. v. Blanchard, 68 Ga. 309; Berry v. Cooper, 28 id. 543; Telegraph Co. v. Fontaine, 58 id, 433; Clarke v. Meixsell, 29 Md. 222; Sweatland v. Telegraph Co., 27 Iowa, 433. That such condition or stipulation, in so far as it undertakes to exempt the company from liability for negligence of servants and employees is void, is too well settled to require discussion here. Tex. Sup. Ct., Feb. 14, 1888. Gulf, C. & S. F. R. Co. v. Miller. Opinion by Acker, J. FAILURE TO DELIVER MESSAGE-DAMAGES. wood lauds are adjusted to give the greatest value to the farm in its present condition, a conversion of one kind into another may be in itself a waste committed; while here the clearing of the forest growth and fitting the virgin soil which it covers for cultivation, is ordinarily an improvement most valuable to the property, and is not, nor can it be, injurious to the succeeding estate in fee. To the full and clear exposition of the law, as applied to limited cases (and the cases decided are mostly cases of dower) held in this State, in general, we give our approval, as warranted by previous adjudications, in adjusting the relative rights subsisting between the tenant for life and the tenant in remainder or reversion. In an early case, Ballentine v. Poyuer, 2 Hayw. 110, Haywood, J., says: "I would define waste thus: An unnecessary cutting down and disposing of timber, or destruction thereof upon wood lands, where there is already sufficient cleared land for the widow to cultivate, and over aud above what is necessary to be used for fuel, fences, plantation utensils, and the like;" adding however that if the lands are covered with trees, such as juniper swamps, and can be put to no other use, and have value only in the growth upon them, then the "widow shall not be liable for waste for using such timber according to the ordinary use made of the same in that part of the country." To which it may be proper to fix a limit to the denudation, that it do not exceed the annual increase from natural growth which replaces that portion of the trees removed. In Ward v. Sheppard, id. 283 (461), Johnston, J., says: "That waste in this country is not to be defined by the rules of the English law in all respects; for cutting timber trees for the purpose of clearing the lands was not waste here, though it was so in England;" but if the trees were out for sale, this would be waste; and that "what shall be deemed waste must be, in a consider able degree, in the discretion of the jury, upon evi In an action against a telegraph company for failing to deliver a message announcing a death, held, that damages cannot be recovered by the plaintiff solely for the mental anguish occasioned by the non-delivery of the message. Where mental suffering is an element of physical pain, or is a necessary consequence of physical pain, or is the natural and proximate result of the phy-dence." In Perkins v. Coxe, id. 339 (517), Taylor, J., sical injury, then damages for mental suffering may be recovered, where the injury has been caused by the negligence of the defendant; but in an action of this kind we do not think that damages for mental anguish or suffering can be allowed. "Such damages can only enter into and become a part of the recovery, where the mental suffering is the natural, legitimate and proximate consequence of the physical injury." City of Salina v. Trosper, 27 Kans. 544. The general rule is "that no damages can be recovered for a shock and injury to the feelings and sensibilities, or for mental distress and anguish, caused by a breach of the contract, except marriage contract." a Russell v. Telegraph Co., 3 Dak. 315. In So Relle Telegraph Co., 55 Tex. 308, it was decided that an action for mental suffering alone could be maintained The opinion in that case however was prepared by a member of the Commission of Appeals of Texas, and subsequently in the case of Railway Co. v. Levy, 59 Tex. 563, the Supreme Court of Texas overruled that decision. See also Wood Mayne Dam. 74. Kans. Sup. Ct., April 7, 1888. West v. Western Union Tel. Co. Opiniou by Horton, C. J. WASTE-WHAT IS-CONVERTING MEADOW INTO ARABLE LAND.-The conversion of meadow into arable land is not waste in law unless it is such in fact; and it is for the jury to say whether such act has impaired the value of the property as a whole. While in its essential elements waste is the same in this country and in Eugland, being a spoil or destruction in houses, trees, and the like, to the permanent injury of the inheritance, yet in respect to acts which constitute waste, the rule that governs in a new and opening land, covered largely with primeval growth, must be very different. When the proportions of arable and | announces the same rule as to cutting timber for other uses than repairs, and extends it to collecting and burning lightwood to make tar for sale, as a permanent injury that would take several years to replace. In Sheppard v. Sheppard, id. 382 (580), Hall, J., after examining numerous authorities cited by counsel, declares the law to be that where " waste of insignificant value is done scatteredly, through a whole tract," the proposition that the widow must lose the place wasted is "too heavy a penalty when the damage is to the amount only of a small sum, and that should be deemed to be waste only which is substantially an injury to the inheritance." These rulings, early made, have laid the foundation of the law on the subject of waste, as it declares and regulates the relations between the owners of the separate estates, and it has been developed in the same direction in subsequent cases. Thus it is declared by the court, Gaston, J., delivering the opinion in Shine v. Wilcox, 1 Dev. & B. Eq. 631, that "the cutting down of timber is not waste unless it does a lasting damage to the inheritance and deteriorates its value; and not then if no more was cut down than was necessary for the ordinary enjoyment of the land by the tenant for life." in the further discussion, after repudiating the adaptability of the common law to this country, which is covered with forest, that clearings of it for cultivation which is highly beneficial to the land can be itself waste, he proceeds to say: "Whether it has been beneficial or in jurious to him [the owner of the succeeding estate in fee] is a question of fact which must depend on the relative proportion of the cleared to the wood land, on the comparative value or worthlessness of the trees destroyed, and on the ordinary use made of the trees in the part of the country where the land is situated.” Referring to the provision for the widow's support in the assignment of dower, he says that "such an use of the land as was necessary for that support, and as prudent proprietors were accustomed to make of their own, was deemed to have been intended in the provision, although the value of the estate might be somewhat impaired thereby. We also hold [he continues] that the turning out of exhausted lands is not waste." In Carr v. Carr, 4 Dev. & B. 179, it was decided that the widow might make turpentine from trees which her husband had opened in his life-time, and might box new pines to make a crop, not exceeding that which he had made in his life-time upon the land. So the widow may clear for cultivation as much of the land as a prudent owner of the fee would, and sell the timber cut in doing so. Davis v. Gilliam, 5 Ired. Eq. 308. If done with a due regard to the proportion of wood and cleared land, she may clear what is neces sary for the enjoyment of the estate. Nash, C. J., in Lambeth v. Warner, 2 Jones Eq. 165. It will be seen from these citations and references that the charge of the court pursues the course of the adjudications upon the law of waste, and adapts it to the different aspects as shown in the evidence. It thus becomes us to abide by the law as declared and reiterated by the courts since the beginning of the present century, and ruled substantially in the charge we are now considering. The real and important inquiry is, has the land been abused during the defendant's occupancy by a spoliation unwarranted by the usage of prudent husbandmen in respect to their own property, to the impairment of it as a whole in value? N. C. Sup. Ct., May 18, 1888. King v. Miller. Opinion by Smith, C. J. As to WATER AND WATER-COURSES-ICE-RIGHT OF RIPARIAN OWNERS.-The ice in a mill-pond is the property of the riparian owner, and he has the sole right to take it, subject only to the qualification that it is not to be taken in such quantities as to appreciably diminish the head of the water at the dam below. right of mill-owners to the ice over the land of others, I find no case in Pennsylvania directly in point, and the decisions in other States are conflictiug. Myer v. Whitaker, 55 How. Pr. 376, decides that the owner of the mill has the exclusive right to gather the ice on the mill-pond. But in Marshall v. Peters, 12 How. Pr. 218, and Dodge v. Berry, 26 Hun, 246, it was held that the mill-owner does not own the ice on the land of others, and the latter may remove it if they do not actually and perceptibly injure the mill-owner. These are New York Supreme Court cases. The plaintiff relies largely on the case of Manufacturing Co. v. Smith, 34 Conn. 462, where the mill-owner made no proof of actual damage, and failed to recover. The judgment | was reversed for the reason that water was sometimes scarce; that the ice and snow prevent deep freezing, and therefore the riparian owner could not remove the snow and ice at pleasure, for such removal might result in an actual and not merely a constructive injury to the mill-owner. The principle seems to be that a water-course is real property. The title to the bed of the stream is in the riparian owner, and he has a right to a reasonable use of the water; and such use is just and reasonable which does no sensible injury to owner below. Cummings v. Barrett, 10 Cush. 186; Elliot v. Railroad Co., id. 191; Ice Co. v. Excelsior, 38 Am. Rep. 255, note; Gould Wat., § 191. It was held in December, 1886, by the Supreme Court of Maine (Stev ens v. Kelly, 6 Atl. Rep. 868), that the owner of a milldam across an unnavigable stream has a qualified interest in the water flowed, but none in the ice formed upon it. The ice is the property of the riparian owner, and he has the sole right to take it, with the single qualification that it is not to be taken in such quantities as to appreciably diminish the head of the water at the dam below." This rule seems reasonable, and we adopt it so far as applicable to the case in hand The rights of the parties are relative. The plaintiff, aside from his right as riparian owner, has an easement only in the water of the lake, namely, the right to flow and use it as a mill-power; and in the exercise of this right, he did not deprive the upper owners of any property or rights they had in Wheaton's pond, and the stream flowing through it. At most their rights were modified, not lost. Their possession was not disturbed except by the changed condition caused by the erection of the dam. They had the right to the reasonable use of the water, and still have; and to exercise this right they may go upon their own land, and take water and ice to the same extent as if the dam had not been built. Indeed whether they could gather ice or not on Wheaton's pond, they may avail themselves of the improvements to their property in this respect, provided the plaintiff is not materially injured. Stevens v. Kelly, supra. "The mill is the principal. The dam is subservient to it." It follows the exercise of this right is lawful, and not tortious, and disturbs no right or possession of the plaintiff. Nor can it be said to be an unlawful diversion of the water, even though the ice was taken under a claim of right, stored and sold as merchandise. In Elliot v. Railroad Co., supra, an upper riparian owner allowed the railroad company to divert the water from a dam on his land to a tank along its road for the purposes of supplying its locomotives. He cut ditches, and conducted water from small water-courses into the pond. The jury found the water which flowed through these artificial chaunels was equal to the quantity taken by the railroad company. Held, that the lower owner could not recover because he sustained no actual injury. So too in the case of Railroad Co. v. Miller, 112 Penn. St. 34, the railroad company pumped the water on its own land into large tanks, and took it in pipes a mile distant to its station, at Dowington, where it was used to supply its locomotives. Mr. Justice Paxson said: "The railroad company may use the water by virtue of its rights as riparian owners; but such use must be such as not to sensibly diminish the stream to the riparian owner below." This was a diversion of water from a dam that had been used nearly a hundred years as a paper-mill power-much like the case at bar; and seems, in connection with the other cases referred to, as decisive against the plaintiff's right to recover. I do not think this conclusion is in conflict with Water-Works Co. v. Canal Co., 14 Moak Eng. R. 100, and, Asylum Dist. v. Hill, 34 id. 378. There the waterworks company undertook to divert the entire stream. Penn. Sup. Ct., April 23, 1888. Searle v. Gardner. Opinion per Curiam. NEW BOOKS AND NEW EDITIONS. NEW YORK CHANCERY REPORTS. Reports of Cases Adjudged and Determined in the Court of Chancery of the State of New York. Complete edition, copiously annotated by embodying all equity jurisprudence with tables of cases reported and cited. By Robert Desty. Book II, containing 6 and 7 Johns. Ch., Hopk. Ch., and 1 and 2 Paige Ch. Lawyers' Co-operative Publishing Co., Rochester, N. Y. This is a sumptuous volume of over 1100 pages. The annotations of Mr. Desty are very full and extended, covering over one hundred topics, and contain throughout references to both "American Decisions" and "American Reports," which in our judgment adds materially to their permanent value. We are confident that this series will readily find its way to most libraries and eventually displace the original edi tiou. The Albany Law Journal. OUR ALBANY, OCTOBER 6, 1888. CURRENT TOPICS. him his opinion will probably not be of much benefit to the publisher. This is criticism. It may be that the critic is mistaken in assertions. These he will gladly correct on having his attention called to them. It may be that he is mistaken in his opinions. These he will never modify or retract, unless based on mistakes pointed out, on the complaint of any publisher or author- not even if the sanguinary Mr. Bishop falls foul of him and calls him UR leading magazines and their would-be con- blackguard. Another point in which publishers tributors of late have been discussing the re- are sometimes at fault is the matter of comparisons. lation of publisher or editor and contributor with a The publisher always thinks comparisons "odorgood deal of zeal. We had hoped to be spared any ous" unless they are in his favor. But a compariparticipancy or involvement in this debate, but son with other works of the same class, either something akin to it has been sprung upon us re- previous or contemporary, is a very just and decicently, not for the first time. That is the matter sive test. He calls on the lawyer to substitute his of reviews of books. It is due to the writers of new work for an old one, or to take it rather than law books to admit that they have seldom troubled a rival one, and the lawyer reasonably looks to his us personally with remonstrances. Indeed, we law journal reviewer to tell him if there is any reacannot now recall a single instance. As to pub- son why he should do so. Or the publisher asserts lishers it has been somewhat different. It is nat- that his work will accomplish such and such things, ural that the publisher should consider this matter and the lawyer looks to his law journal reviewer to in a different light from the reviewer, and perhaps tell him if the publisher's prospectus is too imagi should regard the review as properly a remunera- native or not. The law book reviewer's task is tion for a copy of the book, or an adjunct of the delicate. There is almost always some good in advertisement, if one is published in the reviewing every new book, but seldom is a law book so journal. Mr. Bishop, we all know, says that it is good as the publisher hopes and the author thinks impossible for a legal editor to write an impartial it is. The one has invested his money and the review of a book advertised in his own columns. other his brains, and they are naturally prejudiced In truth it is generally the case, probably, that the in favor of the product. The reviewer usually does reviewer does not know or care whether the book not know or care for either, and is only anxious to is so advertised or not. One mistake that publish- tell the truth as nearly as his opportunities and ers make is in assuming that their book is entitled abilities will enable him. Especially delicate is the to notice, as a matter of course, in return for a reviewer's duty in respect to a proposed series, the copy, if not in consideration of an advertisement. purchase of which will involve a good deal of Now law books are of various classes. There is money. Here he should be exact and impartial in the book that is so poor or unimportant that it de- informing the profession of the performance and serves no notice, or it is a mercy to the author and the nearness of its approximation to the promise. publisher not to notice it. This is a rare class. Publishers are quite too apt to get the idea that Then there is the class that is so poor and import- they own the reviewer, especially when they have ant that the profession need to be warned against had "good luck" with him. A "set back it, or at least to have its errors and defects pointed this is taken as a personal grievance. It is probaout. This is rather more common. Then there is bly because the reviewer feels his task to be diffithe class that is every way important and admira- cult that he is frequently so non-committal, or so ble, and of which the profession should be notified Bunsbyish, or occupies the space with safe truisms in order that they may avail themselves of it."talk about the weather," as it were. Generally This is still more common. And finally there is the class, important and partly good and partly bad in execution, and which is to be judged on principles of constitutional statutory construction if the good is separable from the bad it should be allowed to stand if enough is left to make it effectual for any useful purpose. This is perhaps the most numerous class of all. What the publisher always wants, especially if he is an advertiser in the reviewing journal, is an unmitigated puff, and if the reviewer substantially copies his advertisement or circular it is all the better. The publisher wants words of enthusiastic commendation, which he can cut out and quote in later advertisements and circulars. This is business. What the reviewer owes to the profession is an honest opinion of the merits and demerits of the work, and unless it is generally understood that this is what may be expected from VOL. 38 No. 14. in he can at least speak well of the print, but we have been denounced for finding fault with that. After all, the publisher should be glad to have his book abused if he cannot get it praised. We are sometimes inclined to believe that abuse is better for the publisher than praise, for it frequently excites an unhealthy curiosity to see if the reviewer can really be right. The abuse of that silly, hysterical, nambypamby, erotic performance of Miss Amélie Rivès, "The Quick or the Dead," has undoubtedly given it an immense sale, which it never would have had if the critics had praised it. But the law book critic should not hesitate to tell the truth about a book, even if he feels sure that his condemnation will help it. Mr. Justice Stirling has just decided in Re Palatine Estate Charity, 58 L. T. Rep. (N. S.) 925, that a spire is a necessary occasion " of a church. The Law Times observes: "It might even be an 'ornament,' as organs and bells have been held to be ornaments, but it was certainly a 'necessary occasion,' being a purpose necessary and proper in order that the building might fulfill the object for which it was erected, namely, that of being the parish church of St. Mary, Stoke Newington. The church as designed by the architect is incomplete at the present moment, for it has not got a spire, and the spire is the place in which it is usual to hang the bells, which are a part of the necessary ornaments or furniture of the church. Now however the spire must be built. It is also allowable to pay out of the charity the salaries of the sextons, the verger and the tuner of the organ, but not those of the organist, the assistant organist, the blower or the bell ringer, or the singers, as these latter employees are not concerned with the maintenance of the church." But what is the use of organs and bells if they are not played and rung! As to the spire we doubt. The spire is said to be an emblem or outgrowth of the ancient phallis-worship, and so can scarcely be deemed essential to the maintenance of a church, especially if it should chance to have celibate priests. Possibly however it is sanctioned by the idea of the propagation of religion. These English certainly have some queer phrases. We learn from the London Law Times that what we are accustomed in this country to call a "merry-go-round "—the circular railway or swing or stud of hobby-horses at fairs or in parks-is in English a "roundabout.” Probably Thackeray wrote his celebrated "Roundabout Papers " in one. "Lift" " for elevator; "brasses" for baggage-checks; "boxes" for trunks; "metals" for rails of a rail. way; "tramway" for street-car; "booking-office" for ticket-office; "points" for switches; and now "roundabout" for merry-go-round. We certainly must run over to England and study the language a few months. An article by Mr. Charles B. Waite, the male editor of the Chicago Law Times, entitled "Who were voters in the early history of this country?" shows the curious fact that women voted early in the history of this country, and that the restriction of the right of suffrage to males was the work of comparatively modern Constitutions. Originally freehold suffrage prevailed, and the word "inhabitant" was the common test. "Lady Deborah Moody, in 1654, voted for town officers, and for taxes, and officers of Gravesend, Long Island, and for years elected all the town officials by her single vote. (Lady Deborah Moody, by James W. Gerard, 301.)" In New Jersey the law in 1797 was that "every voter shall openly and in full view deliver his or her ballot (which shall be a single written ticket, containing the names of the person or persons for whom he or she votes)," etc. "In New York and Virginia the husband could vote for his wife's free | hold. This was also the case in Rhode Island. (12 R. I. 586.) The same rule prevailed in Massachusetts. (4 Mass. 387.)" Women were also "among the charter proprietors in New Jersey, Virginia and South Carolina." Mr. Waite also states what has before been stated in this journal-that women in the sixteenth and seventeenth centuries voted for members of Parliament, and that in 1572 Dame Dorothy Packington, lady of the manor of Aylesbury, returned the two members, and that in Olive v. Ingram, 7 Mod. 263, it was held that women could vote for sextons. (It would indeed have been hard to deny a woman the privilege of choosing her last bed-maker.) Mr. Waite sums up as follows: "We have seen that the right of suffrage was without distinction of sex, in Massachusetts for 160 years; in Rhode Island for about 180 years; in Connecticut for nearly 180 years; in New York for over 120 years; in New Jersey, by the Constitution, for 170 years, and by the laws for over 100 years; in Pennsylvania, by the Constitution, nearly 200 years, and by the laws for over 100 years; in Delaware, by the Constitution, for 130 years, and by the laws for over 100 years; in Maryland nearly 100 years; in Virginia, by Charter and Constitution, 170 years, and by the laws nearly 100 years; in South Carolina for nearly 200 years; in North Carolina 150 years; in Georgia for nearly 100 years; in New Hampshire until the Constitution of 1784; in Vermont, by law, for nearly 50 years, and by the Constitution until the present time; in Tennessee for over 70 years; and in Texas, under the Constitution of the citizen Republic of Texas; thus remaining until, by admission into the Union, Texas became a part of the male Republic of the United States." By this he means, we take it, not that women generally voted or claimed the right to vote, but that the right was not expressly limited to the male sex. Theoretically, women have just as good a right to vote as men, and if they generally demand that right in any community, we do not know on what ground of legal or moral principle it can be denied them. Practically, it is a different thing. It seems to us that there are voters enough. The increase of male population increases the corruption of politics to a fearful extent. Admitting all women to vote would increase it still more, although undoubtedly women would not prove so corruptible a class as men. Still if women want to see the folly of voting, what right have men to say them nay? They form one-half of the human race, are as intelligent, and much more virtuous than men, and many of them have no men to represent them even theoretically. On some accounts we would like to see them voting on such an issue, for example, as temperance. The question is a serious one and should be treated in a serious spirit, and not with the flippancy which it elicits from the greater part of the present voters. And on the other hand, the advocates of woman suffrage should not treat with contempt and abuse the women who do not want to vote. There can be no doubt that if the question were left to the women they would to-day decline the privilege by buggy to straggle through a city that efforts will a large majority. ration alleged that the defendant negligently left the horse in the street attached to a buggy unhitched and unattended. The diligence in securing his horse and preventing his escape, which the defendant was bound to observe, was that care which every prudent man exercises or would exercise in dealing with similar horses at a like place under like circumstances. The omission of that degree of diligence would be negligence, and whether it was omitted or not in this instance was a question for the jury. From the facts above cited, all of which appeared in evidence, the jury concluded that the negligence was established, and we think their conclusion was well warranted. Though a horse be sensible, very gentle, and accustomed to stand unhitched at his owner's door in a busy, noisy street, yet if he be fancy, stylish, restless and very high-strung, the jury may infer negligence from leaving him loose elsewhere in the same or another street, unattended except by the owner watching him from a distance of five or six feet. It is said that the horse was not vicious, or if so, that the defendant did not know it. A vicious animal is any individual of a vicious species, or a vicious individual of a harmless species. This horse was neither, and consequently the learning touching vicious animals, whether derived from statutes or judicial decisions, has nothing to do with the case. Every horse whatever, no matter how gentle or amiable, must be properly attended or secured in the crowded business streets of a city when there by the act of the owner, subject to his control. The instincts common to the species rendered this necessary, and of these instincts every owner must be presumed to have notice. The qualities of the individual horse have no relevancy, except as throwing light upon the means proper to be used to secure him, and the kind of attendance or other precautions which common prudence requires. Again, it is argued that though the horse may have been loose in the streets by negligence, it was not that negligence but the direct acts of others which caused him to run away. Also that the injury to the plaintiff was too contingent and remote, as related to defendant's negligence, to be the subject of recovery in damages. It may be fairly anticipated by one who negligently leaves a horse and be made to stop or capture the horse, and that such efforts or other movements or noises may cause him to run away, and that if he should run away some person may be hurt. Between leaving a horse to go at random where there is great danger of doing mischief and hurling a missive at or into a crowd -careless, if it strike or not-there is but little difference. The horse may be regarded as a squib -slow at first, but likely to become swift and destructive. When a horse attached to a buggy is by the owner's negligence loose in the street, and moving at will, persons who see the horse thus going at large are at no fault for trying to stop or capture him, and if by their rush, throwing up of and cause him to run away, invade the sidewalk and injure a person passing lawfully thereon, the owner will be responsible in damages for the injury. Griggs v. Fleckenstein, 14 Minn. 81 (Gil. 62); McDonald v. Snelling, 14 Allen, 292; Lynch v. Nur din, 1 Ad. & El. (N. S.) 29.” In Eureka Vinegar Co. v. Gazette Printing Co., Circuit Court, E. D. Arkansas, June 30, 1888, it was held that cider is an alcoholic beverage, obtained by the fermentation of the juice of apples, and cannot lawfully be sold in a State whose statutes prohibit the sale of "alcohol, or any spirituous, ardent, vinous, malt or fermented liquors." The court said: "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; Terhune v. Phillips, 99 id. 592; King v. Gallun, 109 id. 99; Ah Kow v. Nunan, 5 Sawy. 560; Waller v. State, 38 Ark. 656; 1 Whart. 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 the 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 used in law or commerce it is commonly 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 Encyclopædia Britannica (9th ed.), tit. 'Cider,' it is thus defined: 'Cider, an alcoholic beverage ob |