delivered the opinion of the court.

The plaintiffs in error were indicted and convicted in the circuit court, for selling wine by less measure than the quart, and they prosecute this writ of error to reverse the judgment thereon.

The question for consideration is, whether wine is a spiritous liquor within the meaning of the statute, passed in the year 1837, ch. 1-20, making it a misdemeanor to retail spiritous liquors. We think it is not. Wine is a fermented liquor. Spirits are distilled liquors. And this distinction exists, not only in common parlance, but is recognized by chemists and philologists. Mr. Webster, in his 18th definition of the word spirit, calls it a strong, pungent, stimulating liquor, obtained by distillation, as rum, brandy, gin, whiskey. Wine he defines to be the fermented juice of grapes. Dr. Johnson defines spirit to be an inflammable liquor, raised by distillation, and wine the fermented juice of the grape. The word spirit is derived from the Latin word spiritus, one meaning of which is life. The discovery of the art of distillation belongs to the Alchymists, who made it in the course of their investigations after what they called the elixir vitae, a liquid, the discovery of which, was to render man immortal. When by distillation they had procured pure alcohol, judging from its effects, they for a while were deluded by the hope that the grand secret had been discovered, and called it aqua vitae, water of life. Brandy is still so called by the French eau de vie. The English in adopting a name, have taken the word spi-ritus, as the root from which to form it, instead of the more common word vitae.

We, therefore, think that the words spiritous liquors, embraces all those which are procured by distillation, but not those procured by fermentation.

The judgment of the circuit court is reversed and arrested, and the plaintiffs in error discharged.