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The People agt. Berberrich and Toynbee.

ests are protected by the exception forbid such a construction. There is no law or treaty of the United States by which the right to sell any description of liquor is given directly or indirectly. The right to sell liquor, or other property, is not given by any law of the United States or the state of New York. It exists as a necessary incident to the right of property, independently of any positive law. It has been held by the courts of the United States, that the right to sell liquor of a certain description, and in a certain condition, is secured by the operation of certain laws of the United States against any restraint of the right of sale by state legislation. That is to say, when the act of congress authorizes the importation of liquor, the right of the importer to sell it results as a necessary incident to the right to import, and is secured to him against any interference on the part of the state legislature, by the paramount authority of congress. The question then .is, what description of liquor is it, the right to sell which, notwithstanding any prohibition by the laws of this state, is derived from, or secured by the act of congress? It is imported liquor, in the casks or packages in which it was imported. The exception from the prohibition is exactly co-extensive with the right to sell secured by the act of congress; and the exception was plainly and solely intended to avoid a conflict between the state and federal laws. Any other construction would be so totally at variance with the whole spirit, scope, and intention of the entire law, as in my judgment to be utterly inadmissible.

The rules by which the sages of the law have ever been guided in seeking for the intention of the legislature, are maxims of sound interpretation, which have been accumulated by the experience, and ratified by the wisdom of ages. (Plowden's Rep. 205.)

The resolutions of the barons of the exchequer, in Heyden's case, were the following :

“For the sure and true interpretation of all statutes in general, be they penal or beneficial, restrictive or enlarging of the common law, four things are to be discerned and considered :

Vol. XI.

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The People agt. Berberrich and Toynbee.

“1. What was the common law before the making of the act?

“2. What was the mischief and defect against which the common law did not provide ?

“3. What remedy the parliament hath resolved and appointed to cure the disease of the commonwealth?

“4. The true reason of the remedy. And it was held to be the duty of the judges, at all terms, to make such construction as should suppress the mischief and advance the remedy, putting down all subtle inventions and evasions for continuance of the mischief, et pro privato commodo, and adding force and life to the cure and remedy, according to the true intent of the makers of it, pro bono publico.(3 Reports, 7.)

Surely, we are not called upon to reverse these admirable rules for the construction and interpretation of statutes, and so to construe this act as will certainly and clearly advance the mischief which it was intended to suppress, and suppress the remedy which it was intended to advance.

It is further claimed, that the defendant is entitled to his discharge.

3. Because the proceedings against him were in violation of law, and void. I can perceive no substantial error in these proceedings, down to the time when the defendant was brought before the county judge upon the warrant issued by that magistrate for his arrest.

Ile then demanded that his examination should be taken, and offered bail for his appearance at the next court of sessions of Dutchess county. This was refused, and he was therefore tried and convicted before a court of special sessions, held by said county judge. In refusing an examination, or to take bail for the appearance of the defendant, I think the county judge committed an error which was fatal to the validity of all the subsequent proceedings against the defendant. The examination of the defendant should have been taken by the county judge; and if, upon the examination of the whole matter, it appeared either that no offence had been committed, or that there was no probable cause for charging the defendant there

Grosvenor agt. Hunt.

with, he should have been discharged. If there was probable cause to believe the defendant guilty, bail should have been taken, if offered by the defendant, for his appearance at the next court having cognizance of the offence. (2 R. S. 708, 709, 710.)

A court of special sessions is one of limited jurisdiction, deriving all its powers from the statute. It could only acquire jurisdiction over the person of the defendant upon his request to be tried before it, or his omission for twenty-four hours after being require:l to do so, to give bail for his appearance according to law. (2 R. S. 711, 712.)

I think the conviction of the defendant was void, and does not authorize his detention in custody.

SUPREME COURT.

VINE GROSVENOR agt. William Hunt.

Where a judgment was recovered in an action in this court for slander, from

which judgment the defendant appealed to the general term, and afterwards the parties, by an agreement in writing, and mutual bonds of submission, setting forth the pendency of the action, the trial thereof, and the appeal, submitted the action to the decision of certain persons named as arbitrators, held, that all the legal proceedings were discontinued and ended by the submission, and the judgment could no longer be proceeded upon, The defendant having revoked the submission, and a motion being made for an

attachment against the sheriff for not returning an execution on the judgment, pursuant to a notice served on him,-held, that the sheriff could not avail himself of the submission as an answer to the motion; that the execution was not void, but only voidable, and that the right to avoid it was personal to the defendant, whose remedy was by motion to set aside the execution, or for a perpetual stay of proceedings.

Monroe Special Term, October, 1854.

Motion by the plaintiff for an attachment against the sheriff of Monroe county for not returning an execution.

Grosvenor agt. Hunt.

The plaintiff recovered a judgment against the defendant in an action for slander, and issued an execution on the judgment. The defendant then appealed from the judgment to the general term; after which the parties, by an agreement in writing, and mutual bonds of submission, setting forth the pendency of the action, the judgment, and the appeal, submitted the action to the determination of certain persons named as arbitrators. On the parties appearing before the arbitrators, who had assembled for the purpose of the hearing, the defendant revoked the submission. The plaintiff then served a notice upon the sheriff to return the execution, which has not been complied with, and an attachment against him is now applied for.

E. Griffin, for plaintiff.
BENEDICT & MARTINDALE, for sheriff and defendant.

T. R. STRONG, Justice. The general doctrine, that a mere submission to arbitration of an action depending in court, without any provision that judgment may be entered on the award, is a discontinuance of the action, is well settled. (Ressequie agt. Brownson, 4 Barb. 541, and cases there cited.) The ground upon which the doctrine'rests is, that the parties have selected another tribunal—one of their own creation, to settle the controversy. (Same cases.)

It is conceded by the counsel on this motion, on both sides, that the submission between the parties, referred to in the papers, was a discontinuance of the appeal therein mentioned; and that is undoubtedly correct. But the defendant's counsel insists that it was also a discontinuance of all legal proceedings between the parties from the commencement, and operated to set aside the judgment. On the part of the plaintiff it is contended that the appeal only was discontinued. The submission consists of an agreement of submission, and also of mutual bonds of submission. The agreement recites that “a controversy is now existing and pending in the supreme court,” &c., in relation to slander, which action has once been tried, and a verdict and judgment rendered therein in favor of the plaintiff; that

Grosvenor agt. Hunt.

the defendant has appealed to the general term; and then states that the parties do submit the controversy to the persons named as arbitrators, and agree to abide by the award, provided it be made, &c., by a specified time. The bonds are conditioned, that the obligor shall submit to the award of three persons named, selected as arbitrators to arbitrate “of and concerning an action of slander,” &c., “ which cause is now appealed to the general term,” &c. It is apparent from the language used in these papers, that it was the intention of the parties to submit the subject matter of the action for the slander, and the action itself, including the appeal; the whole controversy between them from the commencement. The judgment was not to conclude, or have any effect, in regard to the merits of the controversy, but the arbitrators were to take up the matter from the beginning. No doubt, it appears to me, can exist in regard to this. It would be absurd to suppose, in view of the terms employed, that the parties designed the judgment should retain the ordinary conclusive force of a judgment, and that the arbitrators were to be limited to the questions upon the appeal. And if the construction I have given to the agreement be the true one, it would seem to follow that all the legal proceedings which had been taken were discontinued and ended, and deprived of force by the submission, as well as any part of them. I do not perceive any principle upon which a distinction can be inade between any portions of them.

In Van Slyke agt. Lattice, (6 Hill, 610,) after an appeal to the common pleas had been taken from a judgment in a justice's court, the parties submitted “the matters at issue between them in the suit pending in the common pleas” to arbitrators; and it was agreed between them as follows: “all future proceedings in said suit at law are to be hereby stayed and ended, and the award or determination of the said arbitrators in the said matter is to be final.” The arbitrators did not agree upon an award-an action was brought in the common pleas upon the judgment before the justice, and the submission was set up as a bar; but the plaintiff recovered, and the defendant brought a writ of error. The court say, at the conclusion of the opinion

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