416

FEDERAL RlllPORTER,

voL 51.

and theirdllnQQ1itlation in t.he matketwill control.' their. classification without regar4 to their scientific djlslgnation. the material of ,which they may be made, or the use to which they may be applied."

,The jqdge submitt!3d to the jury the only questions of fact which were in the case. The only legitimate bearing of the eviden(le introduced by the defendant was its tendency to show that the importations had no coqtme,rcial designation.. ' If· there was no commercial designation, the pla,intiffs had no ,case j and this was the issue distinctly left t.o the jury bytbe instructions of the judge. !twas clearly correct to receive testimony in behalf oftheplaintiffs as to the meaning of the term in trade and oommerce, and it would have been error "brass to instruct jury, as req1,lested, in effect, by the defendant, to ignore that testhnopy. There is therefore no merit in the assignment of error respecting the instructions given and refused by the trial judge. assignments of error relate tothe reception of testiTqedefendant introduced witnesses who testified that the term "brass buttons" did not have any different meaning in trade and commerce than it bad in common parlance. Thereupon the witnesses were permitted,on cross-examination, under objection and exception by the defendant,to state what they understood the term to mean in common parlance. , Eltch of them testified' that he understood it to meau butof brass. Although these statements were not tons made. of any ex;cept aEJ affording a test of the intelligence of the witnesses, becaqaethe definition of terms having no special meaning is a matter of law, they were innocuous, both because the definition of the witnesiles was precisely that which' the court would have given to the jury, anq aiso because the jury were instructed that the defendant was entitled to a unless the importations were not brass buttons aocording to ,the commercial meaning of the term. The judgment is affirmed.

UNITED STATES fl. FIFTlllEN BARRELS

OF

DisTILLED SPIRITS.

(D£strict OI1Wft, D.Ken.tuekV. April 12, 1892.)
CUSTOMS DUTIES-FALSE

Wbere an information of forfeiture of oertain spirits, on tbe ground that they were imported in violation of Rev. St. § 2864, charges, among otber things, that tbe said spirits were imported by means of an entry whicb was false, in that it stated that the spirits were" American whisky reimported in tbe same condition as when exported, " it is good all to this speoiflo allegation.

011' FORII'EITURB.

i.

BAME-INDEli'lNITENESS-WOHDS 011 STATUTE.

An article is bad for inde1initel1ellS wbicb charges a violation of that section in the general terms of tbe statllt;eBS follows, namely: Tbat said spirits were entered by the owner, consignee, or agent knowingly, "by means of the said invoice, wbich was tben a false invoioe,..anaby means then and tbere of,a false oertiflcate of a consul, viCe consul, or commercial agent; and by means of tbe said invoice, wbicb then and there did not contain a true statement of all the particulars therein required by the statutes of the United States, and by means then and there of other false and fraudulent documents and papers, and by means of otber false and fraudulent practices and applianoes. "

UNITED STATES 11. FIFTEEN BARRELS OF DISTILLED SPIRITS.

417

L.

SAME.

Articles charging in like manner, in the general words of the statute, a violation § 9, and alleging the use of all the means prohibited by the of Act June 10, statute, by all the possible persons, are likeWise bad for indefiniteness.

At Law.

Information filed August 21, 1891, as follows:

To the Honorable, the Judge of the District Oourt of the United States for the District of Kentucky, sitting at Louisville, Ky.: Be it remembered that on the 21st day of August, in the year of our Lord one thousand eight hundred and ninety-one, comes George W. Jolly, the attorney for the United States in the district of Kentucky, to prosecute a civil action in which the United States is concerned, and informs the court that the l'nited States of . America hereby brings this suit against certain property and merchandise, described as follows, to wit: Fifteen barrels of distilled spirits, marked and numbered,as follows: 12.010,12,011, 12,012, 12,013, 12,015, 12,016, 12,018, 12,019.12,020, 12,021, 12,022, 12,023, 12,027, 12,031, and 12.032. and. containing five hundred and twotaxable gallons of distilled spirits, being within the district of Kentllcky, in the custody ofD. R. Collier, of Louisville, Ky., as an officer of the customs of the United States, to wit, 88 surveyor of the port of Louisville, in the district of Kentucky, which said goods and merchandise, to wit, saifl fifteen barrels of distilled spirits, the said D. R. Collier, on the fifth and sixth days of June, in the year of our Lord one thousand eight hundred and ninety-one, within said district of Kentucky, being then and there such surveyor as aforesaid, did seize on land and secljre as liable to seizure and forfeiture to the Uriitpd States by virtue of certain acts of congress of the United States respecting the revenue; and that said surveyor, hitherto having retained the said goods and merchandise, to wit, said fifteen barrels of distilled spirits, in his custody within the district of Kentucky, as forfeited as aforesaid, has cauRed this suit to be commenced upon the said seizure, and to be prosecuted forthe saill forfeiture. And the said attorney for the United States in that behalf doth articulately propound the matters relied on as grounds and causes of the said forfeiture, as follows, to wit: Fot' that on or about the 22d day of September, in the year of our Lord one thousand eight hundred and ninety. the said goods and merchandise, to wit, said fifteen barrels of distilled spirits, were imported and brought into the United States, to wit, into the port of New York, at the city of New York, in the United States of America, from Hamilton, Bermuda, a foreign port or place, in a ship or vessel called the Orinoco, and transported from the said port of New York thence to the port of LouisYilIe, in the district and state of Kentucky, by railroad, and were so imported subject to the payment of specific duties to the United States, :For that afterwards, to wit, on the 22d day of September, in the year of our Lord one thousand eight hundred and ninety, at the office of the collector of the said district of the city of New York, in the city of New York, an entry in writing of the said goods and merchandise, to wit, the said fifteen barrels of distilled spirits, purporting to be duly signed, was made with Joel B. Erhardt, who was then and there the collector of said district aforesaid, by N. Hofheimer & Co., as the importer thereof, for immediate transportation in bond to the ,port of Louisville, in the district of Kentucky, and said goods and merchandise, to Wit, said fifteen barrels of distilled spirits, were allowed to be shipped immediately after said entry, and were delivered to and transported by a common carrier, namely, the Baltimore & Ohio Railroad .Company. to the port of Louisville, in the state and district of Kentucky, and to wit, on the 26th day of May, in the year of our Lord one thou-

v.51.F.no.7-27

418'

"

'1'].""

:>r -;

51.

,tbe said.suryeYQr,ot' .· said? the C)f $n:'entry in writing ,IUldlllerchlludise, tQWit, said,Mteen bilrrll]s of distilled spirits, purporting to bE.' duly signed, was made with the said D. R. thlLsurveyor C)f,said district as,aforesaid. by Collier. who W. G. Coldew'eY, 'protlbced' 'to tllll'said sutveyor, Which' entry and invoice were tlJereupdlwlbenand',tbere, invoice.sig.ned. in manner aM' form law.: , , ' ,' , '. " ·For .t11at tlhli'Sftltl'sQrVleyor' thereupon found, and it is hereby charged. that' the:Sltid toWit;'$aid'ftffuen spirits,,' of whichau'entl',r was made and an;i'1ll vocloe' proGuced as aforesaid: by thesaid oWu&r., eonsigilee,oragen't thereof',: and' wh.icnweres'ubject,to the payment of specific 'e.foresl'i.d, were,theb' and there knOWingly entered by,the salddw n thereof by means of,the said in voice,whieh wsstlien'a:nd,':toorea' falSe invoi(ie, Imd ibym,·ltl,sthEm andtheve of a false celitifidate of.acohsnl, vic6'dohsul, Ilr commercial agent, and by means of the saidllY(7c)ic6,. tvhich thEirr'llind there did not'containa true statement of all the 4hereiit I ,by the statutes of the United States, and by means' otber faifseiand fraudulent ,documents and papprs." and 'by Qfother 1181$"6 and fraudulent practices and appliances, contrary to the ;statute of the United States in such case made 'and provided. ,Wherebyand:by force of the statute' of' the United States ill such ease proVided; to wit",tbe RevistldiStatutesof the United State's, the said :goods and aIle, forfeited to the United 8tates. ;" ',i" '0,' , -For,that the stdd sur1teyor thereupotl'found. and it is heteby oharged. that thlliisaid'goodsand tile said fifteen barrels of distilled spirits. 'IoFwhlcli an entry wall; made and aU invoice pl'oduced ,as aforesaid by tbe"sUidownllr. or'lI!terlt thereof; were then and 'there SUbject to' 8lspecific dutt. and werethe'ri'&nd:there knowingly (lnhlred ;:orattempted to aforesaid by 'the' saW'owber, oonsignee, or agent thereof. by l1Iea.1l1fof".ald entry', ,which 'was' than and there a false'entry, in this: that, said goods and merchandise, to wit, said fifteen barrels of distilled spirits." whiskYrreimported in the same condition as when expotUidi ':C' , i : '. ! 'Dhat on 'Or ialxmt the 26th day of, May, il:1'the year of our Lord ol:1ethori. sand .eight:¥I11ndl!ed 'and the said W'.G. Coldewey, the 0 wner,: imp0'lIt(lr,' consignee, or agoehh,r :1Jbe wd merchandise. or som6other person or persons'1'lowu,nknown to'said said attorney, made or attempted, to'make an entry asat'olllBaid ofsailHi1erchandise, which was tht'n and there subject to specific dutilj!fj'IIl:1d had'been imported UlJitedStates Within said -port of Louisville. in the city,of LoUisville; in the' 'district and state of, Kentuck:}',lfrml.l'Hamiltpl1. Bermuda, a foreign port 'or place, byway of the port oiNew York,at 'thecitF'ofNe!w' Yorkl"inthe Ship Orinoco, from Ber-' , muda to New York. 'and:'trom New' i¥drkitoLouisville' transpor., tation, by ttl of a fral idiuJtln t andfalie :invoice,a!Ddavit; letter. and papeI,', and :by 1l1eaasof certain ,faise statements,' ,written ,v:erba;l, and by m",ans, ofoorta'nfa]seaud'fi"audlilent practices,and applianceS. by means whereof the United"States was'd&'pllived of the lflwfulduties, Qr a portion thereof, aCcruing 'upon: th,e' 'said goodll and ,meN:handise, ' or 'll p<wtion thereof.· em· braced to in' aaid 'invoice; alli<lavi't, letter. paper, or statement. WherebY,and'by fOl'Cebf"ithe .s tllotute Of the United States in such case maue1and to -wit,'theninthllection, of the said act of' congress. approved June 10.1890; 'tha' merchandise herein proceeded against. 'being the whole of the m.erebandisecontained,ib.'·the .ba.rrtl!s. and packages containing

sapd.eight

UNITED STATES V. FIFtEEN BARRELS·'dJl'DISTILLED SPIRITS.

419

the particlllatmerchandiset"tbwit, distilled spirits, to which such fraudtilent and false 'paper and' statement related, became and Is' forfeited to the 1 '" United States. , For that <m,or about the day of May, in the year of our Lord one eight hundred anq. ninety-one. the said W. G., Coldewey, the owner, IQ1Pllrtllr. consignee, Or agent fOr merchandise, to wit, said fiftt'en batrt'ls Of distilled sl,irits, 01' llome other person or persons now unknown to said survey'ol' ,and to said llitorney, made Or attempted to make an entry as aforesaid of said merchandise, which was then and there sllbjt'ct to specific duties. and' had been imported inti)'. thE'>" Unltedl::Jtates at the port of LOQisville, In the city of Louisville, ,In tbe district of Kentucky, from Hamilton, Bermu,da. a foreign port or place. way of the port of New York, in the ship or vessel Orinoco from Bermuda to New York, and from New York to Louisville by railroad transportation, and that the said OWh"'l', importer, consignee,or agf'nt, alld other person or persons, unklown, was and were tllen and there guilty of certain' :\\-ilIful acts and omissions, by means Whereof the United States was deprived (,If its laWful duties, or a ,portion thereof, accruing upon said goods and merchandise, or It portion thereof, affected by such acts or omissions. Whereby, and by force, of the statute of the United States in such case made and provided, to wit, the ninth section of the said act of congress, approved June 10. 1890, the merchandise herein proceeded·aj:fainst. to wit, distilled spirits. being the whole of the melC:landise contained in the barrels and packages containing the particular distilled spirits to which said alleged frauds and said acts and omissions related, became and ishereb)' forfeited to the United States. And thereupon, and by reason of,a,ll and singular, the premist's, the said attorney for the United States prays the court that, due process issue to enforce the forfeiture of the said goods and merchandise, and to give notice to all persons concerned in interest to appear and show cause, on the return day of process, why the said forfeiture should not be deereed. G£O. W. JOLLY, United States Attorney, District of ,Kentucky. On October 12, 1891, the claimant filed exceptions to the information, as follows: First. For that the invoice mentioned in the said information is not so

specifieally described. nor its contents so stated, as to enable said claimants to know what invoice is meant, nor when-in it is daimed to be false. Secund. For that the said information does not state who the consul, vice or cOIDmercial agent was who gave the false certificate alluded to in said information. Third. For that the said information does not show wherein such certifi· cate isclahned to be false. Fourth. For that the said information does not show what were the other false and fraudulent practices and apvliancescha."ged against the owner, consignee, or agent of said distilled spirits, by means of which it is claimed that they becameforfeited to the United Stales. Fifth. For that the said information does not show what was the false invoice, affidavit, letter, 01' paper, or what were the certain false statements, written or verbal, or whatwHe the certain false and fraudulent practices and appliances, by mellns whereof the United States is alleged to have been de· frauded of its lawful duties upon said spirits, or a portion thereof. SirDth. For that the said information does not show what were the certain willful acts and omissions by means whereof theUnitad States was deprived of its lawful'duties, or a portion thereof, accruing upon said spirits,-in all

420

voL 51.

the said imperfect and lnsuftlcient, and therefc,retl111aaMiclaimant is not bound. to answer the same and prays that the said information may be dismissed. '

December 29, 1891, exceptions Nos.land 2 overruled, and Nos. 3, 4, 5,and 6 sustained. . On FebruarY' 9, 1892, the United States attorney the order sustai;ning the and on April 12, moved to ·1892, the ,'mot1on was sustained as to exception No.3, .and overruled as to Nos. ,4, 5,and 6. " GeorgeW.,JoUy, U. S. Atty., cited The Con.fi8cation aa"es, 20 Wall. 104; !/he Caroline, 7 Cranch, 496; The &nifty &:-Caroline,'1) Wheat. 38l. , WaUer'EvlJ,n.9, James Pirtle, Muir&:- Heyrl11in, and Gibson, Lochre &:- MarBhaU, for cla,imants. The onlY specific charge in these informations is that the. distilled spirits were imported by means of an entry which is false, inthlllt, it, stated, that the spirits were "American whisky, reimported in the same condition as when exported." If the United States is confined tcf'thisspecific charge, the informations aresufficientj but I that the district attorney expects to thus confined. do not and he hll:ll.moved the, court to s,etaside the former order,upon the idea that the informations are sufficient to allow any and every offensecovered by the ,statute to be proven. Rule 22 in admiralty declares that "1i11 infotm,atlons and libels ofinformation upon seizures for any breach Mthe revEillue or na\rigation or other laws of the United States shall state the .place of seizure, * *' * and the district within which the property 11'1 b:rought, and where it then is. The information or libel of, information shall also propound in distinct articles the matters relied on as grounds 'or causes of forferture." The, information before me (No. 4,206,) seems to have three distinCt articles, though not numbered or distinctly separated as they should be. I will, however, consider the information as if the ll-rticles we,re separated. The articJ:ewhichis first in the information is good, if confined to the charge as indicated above; but the general charges distinct in this in the alternate, and ,about as indefinite as it is possihie to make them. Instead of giving notice to those who may claim the of" the relied on as grounds or causes of forfeiture," the information alleges all of the grounds mentioned in the statute, and in the general tern-IS of the statute. This is true as to the otherartic1es in this information. It is true that the disjunctive "or" is not used quite as frequently in the information as in the statute, but otherwise the information is about ashroad as the statute, and as indefinite, as applied to a specia,lc:ase. Thus section 2864 enacts that"U anyo,wner. consignee, or agent of apy merchandise shaH knowingly

mp.ke, or attempt to an entry thereof by means of a false invoice or false certificate of a consul, vice consul,orcQmmercial agent, or any invoice which cloes a true.statement of aU the particulars hereinbefore reqUired, auY ptbe))"false Or fraudulent practices or appliances whatsoor by ever, such ... (,Irthe value be forfeited."

UNITED STATES V. FIFTEEN BARRELS OF DISTILUID SPIRITS.

421

And the allegation of the information is that said distilled spirits were entered by the said owner, consignee, or agent knowingly"By means of the said invoice, which was then a false invoice, and by means then and there of a false certificate of a consul, vice consul, or commercial agent, and by means of the1laid invoice, which then and there did not contain a true statement of all the particulars therein required by the statutes of the United States, and by means then and there of other false and frauJulent documents and papers, and by means of other false and fraudulent practices and appliances." Again, the ninth section of the act of June 10, 1890. enacts"That if any owner, importer, consignee, agent, or other person shall mak!', or attempt to make, any entry of imported merchandise, by means of any fraudulent or false invoice, affidaVit, letter, paper, or by means of any false statement, written or verbal, or by meaus of any false or fraudulent ptactice or appliance whatsoever, shall be guilty of any willful act or omission, by means whereof the United States shall be deprived of the lawfnl duties, or any portion thereof, accruing upon the merchandise, or any portion thereof, embraced or referred to in such invoice, affidavit, letter, paper, or statement, or affected by such act or omission, such merchandise ... ... ... shall be forfeited. " The second article of the information thus alleges the caUse of seizure under this act: "That on or about the 26th of May, 1891, the said W. G. Coldewey, the owner, importer, consignee, or agent of the said merchandise, or some other person or persons now unknown to the said surveyor and said attorney, made. or attemptpd to make, an entry, as aforesaid. of said merchandise, which was then and there SUbject to specific duties, and had been imported into the United States within said port of Louisville by means of a fraudulent and false invoice. affidavit, letter. and paper, and by means of certain false statements, written and verhal, and by means of certain false and fraudulent'practices and appliances, by means whereof the United States was depriVed of the lawful duties, or a portion thereof. ,embraced and referred to in such invoice, affidavit. letter. paper, or statement." And the third article of this information alleges the grounds for the seizure thus, .viz. : "That said owner. importer, consignee. or agent. and other person or persons unknown. was and were then and there guilty of certain willful acts and omission,s, by means whereof the United States was deprived of its lawful or a portion thereof."

It is evident that a claimant of the property seized can get no information from these general allegations as to the real grounds ot the forfeiture. There would have been labor saved if the allegations had been that section 2864 of the Revised Statutes and section 9 of the act of June 10, 1890. had been violated, and the claimants wo-Uld have been quite as much enlightened as by these allegations. The case of 'l!he Caroline, reported in 7 Cranch, 496, 9 Wheat. 381, and The Confiscation case oj Slidell, 20 Wall. 104, sUHtain the proposition that the charges in an information may be made in the alternative. The Caroline was sei.zed and sought to be condemned under an information which charged that she was fitted out at the port of Charleston for the purpose of engaging in

. ;from th.e sll#i1e port {Charleston) for the w"t1lesJave .made either I/o; orthe purpose of the obJection was carrying on that it was In The>(JonjiscaiJil:m Case, the court strongly intimated,that,' the objection to the information, if taken before judgment, good. In both cases a claimant would have known theproperl:ywas sought to 'be' forfeited for the .offenses set out, although they were, al]egerl in the alternative in the information. In the onecase,it ont the vessel s'eized in the United States for the purposaof engagingcin,the ,trade or traffic in. slaves, or it was the causing the:vesstll toeail from aport orthe United States for the same purpose;li'nthe other, was alleged to be the property Of otherof the persons describEkfand declared to be enemies, and of as such subject to forfeiture. But in thisinformatfon every allegation is ,in '.the alternative, or so generata.stogive no Thus itis Coldewey or some other person unknown who made the entry; or attempted to make the entry, of the distilled spirits. The means by which this entry, or attempted entry, was made is described as by "a ,fraudulent and false invoice,affidavit, letter, and paper," and "certain false statements, written and verbal," and "certain false and fraudulent practices andapplian,ces." If .the inquiring claimant of the property seized, who may be an innocent purchaser for value, is not satisfied with the information given in these statements, he certainly will not be furtherenlightened by the additional charge in third article of that infor.fulttion, which is thntCCsliid owner, importer, consignee, or agent, and and were, then and there, guilty, .other person or persons llnknown, ofcertain willful acts and omissions, hymeans whereof the United States was deprived .of its lawful duties, or a portion thereof." If informations like these are sustained as good under the twenty-second rule in admiralty, because the general language of the statutes are all of the posf3ible persons and all of the means which the statutes prohibit are alleged to have been used, then, indeed, a most ingenious way has been found not to "propound in distinct articles the matters relied on as grounds or causes of forfeiture," while seeming to 'do 80 in superabundance. In the caaeof The Hoppet, 7 Cranch, 389, in which the vessel was sought to be forfeited because of the violation of act to interdict commercial intercourse," etc., the information alleged that certain goodspf the growth, produce, ormanufacture of France were imported into the United States, to wit, into the port of New Orlellns, .in said vessel, (Hoppet.) from some foreign port or place, to wit. ,from St. -Bartholomew, contrary to and in violation of the 4th, 5th, and 6th sections of the act; 'by reason of which, and by virtue of the act of cQngress entitled, (giving. the title,) the said vessel, her tacks, apparel, .and furniture, have become forfeited tO'the United States. But the vessel was not alleged fohnve violated these sections of the law in any spe,cial manner, and the question was, could the forfeiture of the vessel be sustained under s.uch an information? Chief Justice MARSHALl. said:

UNITED STATES",. 'FIFTEEN BARRELS OF DISTILLED SPIRITS.

423

"It is not controverted that in all proceedings in courts of common law, either against the person or the thi1'Jg. for penalt)Els or forfeitures, the allpgation that the act charged was committed in violation of law, or of the provisions of a particular statute, will not justify cpndemn.ation, unlpss, independent of this allegation; a case be stated which t'lhows' that the law has been violated. The reference to the statute direct the attention of the court and of the accused to the particular statute by which the prosecution is to be sustained, but forms no part of the description of the offense. The importance of this principle to a fair adminisiration of justice,to that certai9ty troduced'and"demanded by the freegenius'Qi' our institutions in all pros(:jcutions. for offenses against t);Je laws, is too apparent to require elucidation, and the princlpre itself is too iammar ,not to suggest itselfl to every gentleman of the profession.·. Does this rule apply to information ina court of admiralty? It ill con,tended that all those technical niceties which are unimportant in themselves, and standing only on precedents of which the reason cannot be discerned, should be transplanted from the courts of common law illto the courts of admiralty. But a rule so l'ssential tojustice and fair proceeding as that which requirt's a SUbstantial statemeut,of the offense upon which the prosecutioills founded mustbe the rule of eve'ry court where justice is the object, and cannot be sat.isfied by a general reference to the provisions of-a statute." If this rule thus laid down by Chicf Justice MARSHALL is" not satisfied by a general reference to the provisions Of a statute,"can it be by a mere recital of.the general provisions of a statute? We think not. See, also; U. S. v. Three Parcels of Embroidery, 3 Ware,75; U. S. v. Di8tiJ.lery, 4 Biss. 27; DunI. Adm. Pro p. 116. 2 Abb. U. S. Pl'. p. 85, says: "But this that to follow the words of the statute is enough,. has limits. It does not apply where the statute requires 01' indicates a fuller state1nent, nor when the language of the statute is such that to follow it without discrimination would lead to inconvenient nncertainty or amlJiguity." Set', also, The Mary Ann, 8 Wheat. 380. In the recent cases of Friedenstein v. U; S;, 125 U. S. 225, 8 Sup. Ct; Rep. 838, and Origetv. U. S., 125 U. S. 240, 8 Sup. Ct. Rep. 846,infotmations like the. ones at bar were before the supreme court, butthe court declined to paSllupon the defects which it was insisted ,existed, because they had ,been waived, in the one case by not making the objection in the lower court, and in the other because the bill of exceptions was defective,.and the question was not properly before the court. The first article of theseinformatiol1s., jf that artisle was separated from the others, is, I think, good as .to special charge. The former order B90uld perhaps be modified, but I am still of the opinion these informations, except the first article, are not sufficiently definite.

424

J'JIDERAL

vol. 51.

MITCHELL 11. SHARON.

(C1If'otdl (/fW-rl, N. D. OaUfornw. July 11, 1892.)

No. 11,522. of the following words in the sense indicated:"I can only regard her proposition the plainti1f) for money for "the letters as a' blackmailing soheme. pure and simple, (meaning that plainti1f is ,guilty of theorime of qOucocting a blackmail or extortion soheme.) II Held that, as the words were susceptible of the construction placed on them by the innuendo, the 0Ourt, in considering a demurrer to the complamt, must accept that as the true meaningl..though they were also susceptible of a di1ferent meaning. Hess v. SparkS, Pac. Rep. 979, 44 Kan. 465, distinguished. 2. SUIZ-AOTION.&BLE WORDS. It is not actionable, to say of another that he "is guilty of the orime of concocting a blackmail or extortion scheme, n as thE! words charg!3 merely a plan or purpose to extort money, which is not punishable uilless an attempt is made to carry it out. S. SUlE. ' It is actionable per Be to charge another with being a "blaokmailer, II for this is equivalent to saying that he is guilty of the crime of extortion.
1. .

A cOmplaint for slander ",harged the

'

At Law. Action by,Sarah Mitchell against Frederick W. Sharon for slander. On demurrer to the complaint. Demurrer sustained. Hf/Ylry H. Davis, for plaintiff. William F. Herrin, for defendant.
HAWLEY, District Judge. This is an action of slander to recover $100,000 damages. No special damages are alleged. The complaint aIleges-

"That on the 23d day of July, 1891, at the city and county of San Francisco. state of California, the defendant, in a certain discourse which he then and there had, of and concerning the plaintiff. in the presence and hearing of divers persons. (Who understood that defendant meant the plaintiff,) the defendant falsely and maliciously spoke and pUblished of and concerning the plaintiff the false, scandalous, and malicious words following: In answer to the question asked by one. of said persons of defendant, ·Did you ever see plaintiff,) tbe said defendant replied as follows: Mrs. Mitchell?' (meaning · Nevel' ; and I know very little about her, (ml'aning the plaintiff,) From what I do know I can only regard her proposition (meaning the plaintiff) for money for the letters as a blackmailing scheme, pure and simple, (meaning that plaintiff' is guilty of the crime of concocting a blackmail or extortion scheme.) I have never received any communication from her, (meaning the plaintiff,) but from what ,I .hear I suppose she (meaning the plaintiff) has made demands on the estate for money. Those demands have not been regarded as anything more than mere talk,-the vapid emanations from an idle mind. She (meaning the plaintiff) will wait a long time before she (meaning the plaintiff) gets anything out of the Sharon estate for suppressing such information as she (meaning the plaintiff) may possess. I am often approached by people who talk mysteriously about revealing matters that would be detrimental to the Sharon estate if made public, but I always send them away as Soon as they begin to make blackmailing demands. (Meaning to say of plaintiff that she is guilty of the crim!! of blackmail or extortion, and