Tiffany v. Driggs — 13 Johns. 253

Majority

p. 253

Tiffany, qui tam, &c., against Driggs.

Headnote

In an action to recover the penalty given by the 7th sect, of the act to lay a duty on strong liquors^ c., sess. 24. c. 164, the plaintiff may unite, in bis declaration, any number of of-fences, but ha can only recover the penalty for a single of-fence ; and a conviction in such action, is. a barto‘all prosecutions for of-fences of the likenature committed, before such recovery.

It is unnecessary for the plaintiff to prove the precise day of committing the of- • fence ; and it will be sufficient for the justicé, in making up the récord of conviction; to insert the day laid 'in the declaration, although no particular day was proved.

IN ERROR, on certiorari to a justice’s court.

The plaintiff in error; who was, also, plaintiff in the court below, declared, in debt,, as well for himself as for- the overseers of the poor of the town of Rome, against' the defendant, for Selling, on the 1st of January, 1814, one gill of gin, to foe drank in the store of the defendant, without having entered into such recognisance as is required by the act to lay a duty on strong liquors, and for regulating inns and taverns ; and for selling like small quantities of liquors to .the plaintiff and others, on each day in that month ; and for selling to the plaintiff, on the 1st of January, 1814, one quart of gin, without having the license required by the. said act; and for the like offences on every other day in the same month; and concluded with demanding, twenty-five dollars of debt, for the penalty of one of the said offences. '

■ At the trial, the plaintiff offered to prove, that, some time in the month of January, 1814, the defendant sold, at his storehouse, half a pint of gin to Job Slierman, (one of the persons to whom the defendant was charged in the declaration to have sold liquor,) .to be drank in his store-house, without having entered into the recognisance required by the statute. • This testimony was objected to, unless the' witness would specify the particular day of selling. : The justice decided, that the object tion was well taken, and nonsuited the plaintiff.

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.

p. 254

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.