Blatchley v. Moser & Barkerloo

15 Wend. 215 | N.Y. Sup. Ct. | 1836

By the Court,

Savage, Ch. J.

The points made by the plaintiff in error, that the process and declaration are defective in form, should have been taken before the justice before joining the issue. They came too late after the plaintiffs had rested their cause. The declaration is certainly good in substance, and it is now unnecessary to examine the form.

It is objected that the defendant was indicted for the same of-fence, and that such indictment was a bar to this suit. The authority relied on to maintain this point is The Commonwealth v. Cheney,6Mass.R.347,8. The statute of that state, as stated in the report, is, “ That if any person shall sell any mixed liquors, part of which is spirituous, without licence, he shall forfeit for each offence a sum not exceedig six nor less than two pounds—one half to the informer, the other half lo the county, unless the offence is prosecuted by the grand jury, when the whole forfeiture shall be for the use of the county.” Upon this statute, Ch. J. Parsons says, “The offender may be prosecuted either by indictment or by an information qui tam; and whichever prosecution is first commenced, to that shall the offender answer, and he is not liable to answer afterwards to the other.” Our statute is very different. The 16th section, 1 R. S. 680, declares, “ Whoever shall sell any strong or spiritous liquors or wines to be drank in his house, &e. or shall suffer any such liquors or wines sold, &c. to be drank in his house or shop, &c. without having obtained a licence therefor as a tavern-keeper, shall forfeit twenty-five dollars.” The 35th section is as follows: “All offences against the provisions of this title shall be deemed misdemeanors, punishable by fine and imprisonment.” There is no connection between these two sections. The penalty under the 16th section must be sued for by the overseers of-the poor of the town §19, & 630, §66. The fine under the 35th section belongs to the county for general purposes—the one may be said to be a private remedy, the other a public one for the same offence; and this surely is nothing new. By the statute of Massachusetts, an informer might prosecute, unless the defendant was indicted—clearly implying that if the defendant was indicted, he should not be subject to a prosecution by an informer; but under our statute the offender is liable under both sections, in the same manner that a person guilty of an assault and battery is liable to the individual and to the public. In Tiffany v. Driggs, 13 Johns. R. 353, it is said that a recovery for a penalty shall be a bar to all prosecutions for offences of the 1 ike nature committed before such recovery. The court there adopted the language of the 18th section of the statute of 1813,1 R. L. 181; but no such section is found in the revised statutes under which these prosecutions have been commenced. The 18th section of the law of 1813 has not been re-enacted, and was with the statute itself repealed. That a party offending against the statute can be proceeded against both by action and indictment, was decided by this court in The People v. Stevens, 13 Wendell, 341.

The proof <5f the character of the plaintiff was sufficient. So also of the authority of the attornies to appear for the plaintiffs.

As to the objection that the justice had no jurisdiction, because the municipal court has by statute, Sess. Laws of 1827, p. 145, §48, “ exclusive jurisdiction in the said village to hear, try,” &c. The provision of the statute excludes any justice from holding a court within the village, but surely does not take away the general jurisdiction of the justices of the county from trying any transitory action within their jurisdiction, and holding their courts within their own towns ; which they may still do, except in the village of Brooklyn. The court in this case was not held within the village.

Judgment affirmed.