Tiffany v. Driggs

13 Johns. 253 | N.Y. Sup. Ct. | 1816

Yates, J.,

delivered the opinion of-the court. This court have decided that the act to lay a duty on strong liquors, and for regulating inns and taverns, inflicts but one penalty'for the offence of selling liquors without a license, and that the amount of such penalty only can be recovered in. one action, Washburn v. M‘Inroy, (7 Johns. Rep. 134,). The eighteenth section of the same act (1 R. L. 181.) ordaiils, that whenever any suit shall be commenced, and a recovery had; for a penalty incurred by selling strong or spirituous liquors, without license, such recove-, ry shall be a bar to all prosecutions for offences of the like natuft, committed before such recovery.

It appears, by the return of the justice, that the evidence offered on the part of the plaintiff, went to show that the liquor, as stated in the declaration, had been sold, by the defendant some day in January:, 4814. This, ought to; have been deemed sufficient, because, by the above section of the act, the réeovery would have been a bar. to all previous offences; and the particuTar day of the month wais not material Of necessary to support the declaration. It was enough that the. evidence went to prove one offence in. the mouth of January, ás no more than one penalty could; have been recovered fur'any number of the . likenature previously incurred.. •

. ; I am aware that, by the 8th section .of the twenty-five dollar’. act, the form of the record of conviction is given, and that the justice is thereby required to insert the day when the offence was committed; but this does not render it necessary that the'evidence should state-the. day with greater certainty .than was-done in-the present case, because proof of any day before the commencement Of the action.wás.sufficient; áñd the trial,.in this instance, was m Januarij, 181S ;.and the vvitness stated the offence to have been committed in the preceding January, so that I can see no reason,' according to the most rigid Construction,of the act, (being a penal statute,} why the justice,; in making up the record of conviction^ would hot have been authorized to insert any day in the month oí january,18í¿l, according to the declaration. and the .evidence before him in support of . it.( and being thus enabled to comply with the form prescribed by theact^it is evident that the plaintiff ought not to have been nonsuited on the ground that no particular day was proved. The judgment must, therefore,,be. reversed- ’ ■ -■ . '

Judgment reversed.