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Taylor agt. Harlow and Pierson.

must be made at the general term.” (Code, § 265.) In all other cases, judgment must be entered in conformity to the verdict at the circuit, on the direction of a single judge ; (Code, 264;) and motions for a new trial on a case, or exceptions or otherwise, must, except as above stated, in the first instance, be heard and decided at the circuit or special term; (Code, § 265;) from which, after judgment, an appeal may be taken to the general term. (Code, § 348.)

Under the amendments of 1851 to the Code, “motions for a new trial on a case, bill of exceptions, &c., might, by an order from the judge holding the circuit, be heard, in the first instance, at general term. As this action was tried very soon after the amendments of 1852 went into effect, it may be that the change of practice in this respect had escaped the attention of the judge holding the circuit, and that he intended the court at general term should pass upon all the questions made by the case; but from the order made at the circuit, and the affidavits used on this motion, I am convinced that, on the trial, the case presented only questions of law, arising upon the validity, effect and extent of the receipt put in evidence by the defendants. If so, it was a case which might be sent direct to the general term, where judgment might be pronounced in the first instance, and from which exceptions might be taken, and the cause carried to the court of appeals.

The defendants' embarrassment has arisen from the manner in which the case was made up and settled-presenting questions of fact as well as law. Such a case, I think I have shown, could not be sent to the general term for judgment in the first instance. And I am quite certain that, sitting at special term, I ought not to review the adjudication of the general term, even upon a case not properly before it, but which has been there heard without objection from either party.

For this reason the motion must be denied.

The People agt. Berberrich and Toynbee

SUPREME COURT.

THE PEOPLE OF THE STATE OF NEW-YORK, upon the complaint

of John E. VASSAR, agt. Phillip BERBERRICH.

THE SAME, upon the complaint of JOHN MATTHEWS, agt. Thos.

TOYNBEE.

So much of the first section of the act of the 9th April, 1855, entitled “AN

ACT FOR THE PREVENTION OF INTEMPERANCE, PAUPERISM, AND CRIME," as declares that intoxicating liquor shall not be sold, or kept for sale, or with intent to be sold, except by the persons, and for the special uses, mentioned in

the act, So much of sections six, seven, ten, and twelve, as provide for its seizure, for.

feiture, and destruction,So much of section sixteen as declares that no person shall maintain an ac

tion to recover the value of any liquor sold or kept by him which shall be purchased, taken, detained, or injured, unless he can prove that the same was sold according to the provisions of the act, or was lawfully kept and

owned by him,So much of section seventeen as declares that, upon the trial of any complaint

under the act, proof of delivery shall be proof of sale, and proof of sale

shall be sufficient to sustain an averment of unlawful sale, And so much of section twenty-five as declares that intoxicating liquor, kept

in violation of any of the provisions of the act, shall be deemed to be a public nuisance,--held, to be repugnant to the provisions of the constitution for the protection of liberty and property, and absolutely void. The legitimate authority of the legislature does not extend to the enactment of

laws prohibitory of the common and ordinary use of property. Nor can it, in the execution of the trusts confided to it, declare, by statute, an article or thing, the product of human industry, or creation of human skill, long recognized as property, and of all but universal use, and perfectly inoffensive in

itself, to be a public nuisance, and thus authorize and justify its destruction. The protection given to property, as well by the sense of mankind as by positive enactment, makes no distinction as to its greater or less utility. It extends to whatever has been held and enjoyed as such by custom and usages of the country. No power is given to any man or body of men to discriminate. The right of property not only extends to its corpus, but to its ordinary and essential characteristics, of which the right of sale is one; and it can be controlled only so far as to prevent its abuse, without destroying such character. istics. Vol. XI.

19

The People agt. Berberrich and Toynbee,

An act of the legislature is not the “due process of lawmentioned in the 6th

article of the constitution of this state. Those words cannot mean less than a prosecution or suit instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt, or determining the title to property.In other words, a man cannot be legislated out of his life, liberty, or property. A complaint under this act must aver that the liquors alleged to have been sold were not liquors, the right to sell which, in this state, is given by any law or treaty of the United States. It does not cure the difficulty that the defendant is charged with having sold liquors contrary to the form of the statute. That will not aid a defective description of the offence. Nor can the defect be cured by evidence. The evidence must be confined to the charge, and the accused cannot be required to answer any complaint, except that which sets out an offence conformably to the rules of law. The complaint is a substitute for an indictment, so far as it relates to substance,

and requires at least as much particularity. The true way of reading the qualifying clause of the first section of the act, is

as a prohibition of the sale of intoxicating liquors not vendible beyond state legislation, in their existing condition, according to the decisions of the

Supreme Court of the United States. The provisions of the act relative to the trials under it, indicate an intent to

confine them to the special sessions. And the enactment, so far as it relates to compulsory trials in the courts of special sessions, is unconstitutional and void.

Second District, Brooklyn General Term, July, 1855.
Brown, S. B. Strong, and RoCKWELL, Justices.

The act entitled "An Act for the Prevention of Intemperance, Pauperism, and Crime,” passed April 9th, 1855,—(sometimes called the Maine law,)—as taken from the statute, is as follows:

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

§ 1. Intoxicating liquor, except as hereinafter provided, shall not be sold, or kept for sale, or with intent to be sold, by any person, for himself or any other person, in any place whatsoever; nor shall it be given away, (except as a medicine, by physicians pursuing the practice of medicine as a business, or for sacramental purposes,) nor be kept with intent to be given away, in any place whatsoever, except in a dwelling-house in

The People agt. Berberrich and Toynbee.

which, or in any part of which, no tavern, store, grocery, shop, boarding or victualing-house, or a room for gambling, dancing, or other public amusement or recreation, of any kind is kept; nor shall it be kept or deposited in any place whatsoever, except in such dwelling-house, as above described, or in a church, or place of worship, for sacramental purposes, or in a place where either some chemical, or mechanical, or medicinal art, requiring the use of liquor, is carried on as a regular branch of business, or while in actual transportation from one place to another, or stored in a warehouse prior to its reaching the place of its destination. This section shall not apply to liquor, the right to sell which, in this state, is given by any law or treaty of the United States.

§ 2. Any citizen of good moral character, who is an elector of the town or city where he intends to sell intoxicating liquor, as hereinafter provided, and who is not a pedlar, nor the keeper of or interested in any boarding or victualing-house, grocery or fruit-store, or any bar-room, confectionary, inn, tavern, or other place of public entertainment, or the keeper of, or interested in any museum, theatre or other place of public amusement, nor the captain, commandant, agent, clerk or servant of or on any vessel, boat or water craft of any kind whatever, may keep for sale, and may sell intoxicating liquor and alcohol, for mechanical, chemical or medicinal purposes, and wine for sacramental use; provided he shall, within one year previous, have filed in the office of the clerk of the county in which such liquor is to be sold, an undertaking executed by himself and two good and sufficient sureties, to be approved by the county judge of the said county, or in the city of New-York, by one of the judges of the common pleas, and acknowledged before said judge, that he will not violate any provision of this act, and will pay all fines, damages and costs which may be imposed upon or recovered against him, in any action, civil or criminal, to be commenced under any of the provisions of this act ; and provided, further, that he shall also have filed, with his undertaking or declaration, an oath or affirmation, taken before said judge, setting forth the town or ward, and particularly designating and

The People agt. Berberrich and Toynbee.

describing the premises and place in which he intends to sell such liquor, and declaring that he is an elector of such town or ward, and does not use intoxicating liquor as a beverage, and is not, and during the time he shall sell such liquor, will not be a pedlar, nor the keeper of, nor interested in any inn, tavern, boarding-house, victualling-house, grocery or fruit-store, barroom, confectionary, or other place of public entertainment, nor the keeper of, nor interested in any theatre, museum or other place of public amusement, or the captain, commander, agent, clerk or servant of or on any vessel, boat or water craft of any kind whatever, and will not violate any provision of this act; and provided, further, that he shall, within one year previous, have filed a copy of such undertaking and declaration, certified by the county clerk, in the office of the clerk of the town or city in which such liquor is to be sold. No such undertaking shall be approved by any such judge, unless the applicant shall be a man of good moral character, and such sureties shall be householders within such county, and shall severally justify in the sum of five hundred dollars each, over and above all debts, demands, liabilities or legal exemptions, and shall also make oath or affirmation that they have not become possessed of any property for the purpose of enabling them to justify as such sureties, and that they are not and will not become directly or indirectly engaged or interested in the manufacture or sale of intoxicating liquor during the continuance of their suretyship.

§ 3. Any person authorized as in the last section provided, shall not do anything contrary to his said undertaking, nor to what he has sworn in his said oath or affirmation, nor shall he sell any liquor known by him to be impure or adulterated; nor shall he suffer any liquor sold by him to be drank upon the premises where the same is sold; but he may sell in the following cases and no other :

1. To any person of the age of twenty-one years, being of good character for sobriety, provided the person selling the same shall have good reason to believe, and shall believe, that the same is intended by the purchaser to be used for some one

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