105 Va. 533 | Va. | 1906
delivered the opinion of the court.
This is an action of debt on a penal bond, instituted by the Commonwealth against Cam Anderson and H. C. Moore, plaintiffs in error, and the final judgment in the ease, in favor of the Commonwealth, was’ rendered on the fifth day of September, 1905.
The overruling of defendants’ demurrer to the amended declaration filed in the case is assigned as error, the grounds of the demurrer being: “(a) There was not, nor was there at the time of taking said bond, any warrant of law for the execution of any such bond; (b) said bond is, therefore, void; (c) there was no sufficient ground for action of debt alleged in said declaration.”
It appears that at the April term, 1903, of the County Court of Scott county, Cam Anderson was. indicted for selling liquor without a license; that at the same term of the court he executed the bond sued on, payable to the Commonwealth, in the penalty of $500.00, with H. C. Moore as his surety, with the condition “that if the above bound Cam Anderson shall not violate the revenue law of this State for twelve months . -. . then the above obligation to be void, else to remain in full
The bond was taken in substantial compliance with sections 1 and 8 of the special act of the Legislature, approved February 29, 1892 (Acts, 1891-’92, p. 814), the purpose of which was to suppress tippling houses, the illegal and unlawful traffic in ardent spirits in the county of Scott and other counties named.
The seventh section of the act provides that “any county officer . . . who is a conservator of the peace . ... or any county judge or justice of the peace, who shall have reasonable cause to suspect that any of such liquors aforesaid is sold without a license shall issue his warrant,” etc.; and the eighth section provides that “upon a hearing, if it be found there is probable cause to suspect them (the parties accused) guilty they shall be required to enter intp bond, with sufficient security, for their good behavior, conditioned not to violate the revenue laws of this State, and also to answer an indictment for said offense.”
The bond in this case was taken by the County Court of Scott county, after an indictment found against Cam Anderson for selling liquor without a license; and clearly, if the' judge could require and take the bond, as provided by the act, “on probable cause to suspect,” in vacation, which is plain, a fortiori, could he, sitting in court, on an indictment found, do the same.
The “hearing” contemplated by the statute means nothing more nor less than sufficient inquiry to show “probable cause to suspect,” and the finding of the indictment, the appearance of
The remaining ground of demurrer is also untenable. While the eighth section of the act, supra, provides that “should such bond be forfeited, scire facias, shall be issued thereon by the clerk of the court in whose office the bond is filed,” etc., this provision but gives a special remedy and was not intended to exclude other remedies or forms of action by the Commonwealth to collect the penalty of the bond.
During the trial in the court below plaintiffs in error excepted to certain rulings of the trial judge, and leave was given them to prepare and present, within thirty days, their bills of exceptions, to be signed and made a part of the record; but while those bills of exceptions were prepared and presented to the judge in vacation on the 28th day of September, 1905, they were not signed by him and filed with the record till the 5th day of December, 1905, that being the last day of the November term, 1905, of the Circuit Court of Scott county, which was not only after the expiration of thirty days from September 5, 1905, but the November term of the court had intervened between that date and the date on which the bills of exceptions were signed by the judge and filed with the record, and they do not show the consent of parties extending the time entered of record, as provided by law; therefore, they
It follows that the judgment of the Circuit Court must be .affirmed.
Affirmed.
