sumers in the United States and other countries, and no other whisky is known by that name. 'Canadian Club

Whisky' is therefore the distinctive name of a whisky so called; that name distinguishes the product to which it is attached from all other whiskies, and clearly identifies it as the particular kind and brand of whiskies made by Hiram Walker & Sons (Limited), at Walkerville, Ontario. The name distinguishes the particular goods in relation to which it is used from other goods of a like character belonging to other people (Hopkins on Unfair Trade, section 2). It is certainly as distinctive as the designation 'S. N. Pike's Magnolia Whisky' which, in Kidd v. Johnson,1 was held to constitute a trademark, because distinguishing the whisky of the manufacture of S. N. Pike & Co., and their successors in Cincinnati, from all other whisky.

"The brief of the solicitor of the Department of Agriculture contends that the distinctive name under which a mixture or compound may be sold must in its entirety be purely arbitrary or fanciful, and must not contain the name of the component elements of the compound. A mixture of wheat and barley, he concedes, might be sold as 'Force' or 'Vita,' without stating of what elements it was composed, but a mixture of two kinds of barley could not be sold as 'Melrose barley' without stating that it was 'a blend of barleys.' It seems to me that such a construction of the term 'distinctive name' is not only unwarranted, but undesirable. The two main purposes which the pure food law was designated to accomplish are, first, to prevent the sale of adulterated foods, and, second, to prevent deception being prac ticed on the public. It would seem to me that the latter purpose is more apt to be secured by permitting the seal of a product under its own name qualified by some distinguishing characterization, than by requiring it to be masked in an anonymity which would give no clue to any of its component elements.

"But without entering into an analysis of the many decisions cited in the briefs of the respective parties, or further pursuing a discussion of the question, it appears to me clear

that the name 'Canadian Club Whisky' is a distinctive name, so arbitrary and so fanciful, as to clearly distinguish it from all other kinds of whisky or other things, and a name which, by common use, has come to mean a substance clearly distinguishable by the public from everything else (see United States v. 300 Cases of Mapleine, per Sanborn, D. J.; Notice of Judgment 163, Food and Drugs Act, p. 3). In my opinion, therefore, it is not necessary that the label under which 'Canadian Club Whisky' is sold shall state that it is a 'blend of whiskies.'

"Respectfully,

"George W. Wickersham.

"The Secretary of Agriculture.

§ 387. Whisky-Bourbon Whisky.

A distillery in New Orleans, La., produced no spirit made from grain mash, but only a product from molasses and It marked each barrel "Bourbon Whisky." The government seized 50 barrels of whisky so labeled, and it was condemned. The following are the instructions of the court to the jury trying the case:

"I will not call upon counsel for the United States to reply. The case as it is presented to the jury is a very clear one. I reject the only prayer offered by the defense. Really, that prayer concedes the misbranding of the liquor, and asks me to say to the jury that if they shall find that this was done under the control and by the agents of the United States, the United States, which is the plaintiff in this case, is estopped from proceeding to condemn these goods and forfeit the goods for misbranding. That proposition I reject. Every one who deals with agents of the United States deals with them with the knowledge imputed to him of the restriction upon their authority. It seems to me it can not be successfully contended that any agent of the United States has authority to do a thing which is forbidden by law; and it is forbidden by this law passed in 1906, the Pure Food Law, to misbrand any goods which are intended to be or are actually transported from one State to another. Of course the gentlemen of the jury would know, or should know, that the United States has no authority, under the Constitution of the United States, to regulate the sale of goods within the limits of a State. It is only when they are transported from

1 100 U. S., p. 617.

one State to another, and become a part of interstate commerce of the country, that the United States has the authority to pass laws regulating them. So this liquor, without infraction of any law so far as I know, might have been offered for sale and sold in Louisiana, unless there is some law of Louisiana which prohibits the misbranding of or misrepresentation with regard to the constituents of an article that is offered for sale. It is only, therefore, when these goods become a part of the interstate commerce of the country that this Pure Food Law of 1906 applies to them, that 'misbranding' shall apply to the placing on the package of any statement which shall be false and misleading in any particular, and provides that any article misbranded, which is transported from one State to another for sale, is liable to confiscation. Therefore I do not think that anything that was done in the distillery in Louisiana, in New Orleans, in any way estops the United States or estops the authorities, or the agents of the United States in Maryland, from proceeding to condemn these goods upon the ground that they were misbranded. It would be destructive of the enforcement of many of the laws of the United States if the act of any agent of the United States could be set up as a defense against the explicit law; the explicit law in this case being that any goods that are misbranded shall be forfeited. If any gauger, at the request of a distiller or under a generally understood practice of the distillery, should misbrand an article of liquor, it would be utterly subversive of the law if that could be said to be a defense to the positive enactment of the Act of 1906 that misbranding goods that are to be transported from one State to another shall be prohibited. I, therefore, reject that contention on behalf of the claimant of the goods in this case.

"Then the jury come to consider what is the real issue which they are to determine, and that is whether these goods are whisky as known to the trade and to the community generally, and to those who deal in whisky. If it is not whisky, of course the case is made out in favor of the United States. If the jury believes-and there is a great deal of testimony to that effect—that the word 'whisky' is applied only to a distillate made of grain, that is an end of the case, an end of the defense in the case, their verdict must be for the United States, because it is admitted in this case, and it is not a question of dispute, that this liquor is not made from grain, but is a distillate of molasses with a slight infusion of sulphuric acid.

"But the jury might possibly find that it could be called whisky. Then there is a second question, can it be called Bourbon whisky? There is a great deal of testimony to show that 'Bourbon whisky,' in its most general sense, is a whisky made from grain of which corn is the larger constituent. If you find that this was not such a whisky, then it is not Bourbon whisky, and your verdict must be for the United States. Then there is testimony also to the effect that 'Bourbon whisky' as understood in the trade is confined to a whisky made in Kentucky. If you find that to be the fact and that is for you to decide entirely on the testimony-if you

find that in the trade and among those who deal and who are familiar with the article 'Bourbon whisky' implies that it is made in Kentucky, then of course that is an end of the case so far as the claimant is concerned, because it is admitted that this liquor was made in New Orleans.

"I might say that a good deal has been said about the hardship and injustice of condemning an article which once has been branded by the gauger, but I do not think that that appeals very strongly to any one's sense of morality, because a gauger is not a man who is to decide what is the trade name of an article. He takes that largely from the distiller. He is not a dealer in liquor, nor is he a man of science who is to determine once for all, and incontestably, whether it is what it is branded, or something else.

"I will now give you the instructions asked for by the counsel for the United States. The first prayer is as follows:

"The jury are instructed that if from the evidence they shall find the word "whisky" as understood by scientific men, the liquor trade, and the public generally is confined to a distillate of grain, and shall further find that the contents of the barrels libeled in this case is a distillate of molasses, and that the said barrels were branded Bourbon whisky, then the said barrels were misbranded, and their verdict must be for the libelant.' "The second prayer has reference to the restricted meaning of 'Bourbon whisky,' as applying to whisky distilled in the State of Kentucky. It is as follows:

""The jury are instructed that if they shall find from the evidence in this case that the phrase Bourbon whisky as defined in the standard works of reference in use in this country, and as understood by scientific men, the liquor trade, and by the public generally, imports a liquor distilled in the State of Kentucky, and shall further find that the contents of the barrels libeled in this case were distilled in New Orleans, in the State of Louisiana, and shall further find that the said barrels were branded Bourbon whisky, then the barrels were misbranded, and their verdict must be for the libelant.'

"The third prayer has reference to what you may find from the evidence is the more general acceptation of the words 'Bourbon whisky,' and that does not necessarily require that it shall be made in Kentucky. The instruction is as follows:

""The jury are instructed that if they shall find from the evidence that the phrase Bourbon whisky as understood by scientific men, the liquor trade, and the public generally is confined to a distillate of grain made from the mixture of fermented grain, of which mixture corn constituted the greater part, and shall find that the contents of the barrels libeled in this case are a distillate of molasses, and shall further find that the said barrels are branded Bourbon whisky, then the said barrels are misbranded, and their verdict must be for the libelant.'

"I do not think that there is anything that I need say to the jury

further, except to remind you that there is no dispute at all as to the material out of which this distillate was made. The whole case, in my judgment, and I so instruct you, turns upon whether the general acceptation of the word 'whisky" imports that it is made from grain. Of course this liquor was not so made.

"Further, in regard to Bourbon whisky, if the term 'Bourbon whisky, implies that the article was made of corn in greater part—not made of molasses but made of grain of which corn was the greater part-then of course it was misbranded.

"So, further, if you find that 'Bourbon whisky' is confined to whisky made in Kentucky, and of grain, and that the larger constituent part must be corn, then of course this would not be 'Bourbon whisky,' because it was not so made.

"As to what the testimony has convinced you are the proper meanings, accepted by the trade and by scientific men, of 'whisky' and 'Bourbon whisky,' these are facts to be found by you from the testimony, which I leave entirely to you. It is my duty to instruct you upon the law and to leave the facts to be found by you." 1

§ 388. Whisky Compounds.

"The labeling of whisky compounds, under the Food and Drugs Act of June 30, 1906, will be governed by the opinion of the Attorney-General, dated December 1, 1908, published herewith.

"James Wilson,

"Secretary of Agriculture.

"Washington, D. C., December 4, 1908."

"December 1, 1908.

"The Honorable the Secretary of Agriculture.

"Sir: I am duly in receipt of your letter of this date. In this you call my attention to a passage in my opinion of April 10, 1907, addressed to the President, which passage is in the words following:

'I conclude that a combination of whisky with ethyl alcohol, supposing, of course, that there is enough whisky in it to make it a real compound and not a mere semblance of one, may be fairly called "whisky," provided the name is accompanied by the word "compound" or "compounded,” and provided a statement of the presence of another spirit is included in substance in the title'

1 N. J. 68.