Whiskey kept for sale in violation of law is not subject to seizure upon a complaint charging the unlawful keeping for sale of lager beer and other malt, spirituous liquor.
BLODGETT, C. J.
So far as appears, the libel may be maintained against the lager beer. The complaint upon which it was seized sets forth with sufficient legal certainty the kind and quantity of the liquor (State v. Jenkins, 64 N.H. 375), alleges that it was unlawfully kept for sale, and charges that it was spirituous. By statute, "any spirituous liquor kept for sale in violation of law . . . may be seized," etc. (P.S., c. 112, s. 30), and "by the words . . . `spirituous liquor' . . . shall be intended all spirituous or intoxicating liquor, . . . unless otherwise expressly declared." Ib., c. 2, s. 33. There being no such declaration as to fermented intoxicating liquor, lager beer, if intoxicating, is consequently subject to seizure and forfeiture (State v. Lager Beer, 68 N.H. 377); and whether it is intoxicating may be shown by evidence. Walker v. Prescott, 44 N.H. 511, 512.
As to the whiskey a different case is presented, and the libel cannot be maintained. Being produced by distillation and not by fermentation, the whiskey was not subject to lawful seizure upon the complaint, which, it must be borne in mind, was for unlawfully keeping for sale "lager beer and other malt, spirituous liquor" only.
Case discharged.
All concurred.