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Lilliendahl agt. Fellerman.
tingencies to determine which of the two to choose. (3 Johns. Ch. R. 23; 17 Johns. R. 437.)
One of these contracts—that with the defendant Selden, for the other half of the invention-it is said, is in express terms conditional. It provides, that if the application for a patent should fail, or if the Tatham suit (claiming a prior invention) should be “finally determined against the defendant therein," then the bargain should be void.
Now, either these conditions have been fulfilled, or they have not. If they have been, the plaintiff has no ground of complaint in any form : if they have not, he has a perfect remedy, without a new suit, by way of defence, in the action already pending against him; and the present litigation is, therefore, in either view, unfounded, or it is unnecessary and vexatious. (See the case of Selden, agt. Pringle, 17 Barb. 458.)
Bill dismissed with costs as to all the defendants.
LILLIENDAHL agt. FELLERMAN.
The issuing of a second execution is not a waiver of supplementary proceedings
commenced against the defendant, after the return of the first execution unsatisfied. A similar practice was authorized by the late court of chancery, after filing a creditor's bill.
New-York Special Term, Sept., 1855. MOTION by defendant to set aside order in supplementary proceedings.
CLERKE, Justice. Contrary to my first impressions, I now think that the issuing of a second execution is not a waiver of
Lilliendahl agt. Fellerman.
supplementary proceedings commenced against the defendant after the return of the first execution. These proceedings are a substitute for the creditor's bill, and are merely auxiliary to the ordinary legal method of enforcing the satisfaction of a judgment. To be sure, the Code, like the former law, contemplates that the ordinary remedy should be exhausted, before a recourse shall be had, in the first instance, to the supplemental remedy, and for this reason requires that an execution shall be returned unsatisfied, or that, after an execution has been issued, the defendant has property, which he unjustly refuses to apply towards the satisfaction of the judgment. But, this is not inconsistent with the right, after supplementary proceedings are commenced, also to issue another execution, if the judgment can be more readily or effectually satisfied in this way.
After filing a creditor's bill under the old system, the complainant might have taken out a new execution upon his judgment, and levy upon the property of the defendant; and should such property be insufficient to satisfy his judgment, he would not have been compelled to elect either to dismiss his bill, or abandon his execution.
In the case of Salt agt. Lawson, decided March 30, 1852, (4 Sand. S. C. R. 718,) it was held, in the superior court, that these rules of the court of chancery were as applicable to the examination of a debtor under the Code, as to the proceeding by a creditor's bill. In this view I am inclined to concur.
Motion to discharge order denied without costs.
Wynhammer agt. The People.
JAMES G. WYNHAMMER, plaintiff in error, agt. THE PEOPLE
OF THE STATE OF NEW-York, defendants in error
The right to a bill of erceptions in a criminal case is given by statute. Its office is to bring up for review questions of law made and decided on the trial. But the statute limits this right to exceptions taken on the trial, to the main issue. It is not extended to such as are taken on the trial, of preliminary or
collateral questions. The last clause of the first section of the act, entitled “ An Act for the Preven
tion of Intemperance, Pauperism and Crime," passed April 9, 1555, reads as follows: “ 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." Held, that this right to sell imported liquor, as defined and construed by the
United States courts, is limited to certain persons, and qualified by the status of the property, while it is in the hands of the importer, and in the condition in which it was imported. The laws under which he has imported it, give him a right to sell it in that condition. This is the extent of the right. When he (the importer) parts with the property, or changes its condition, his
right, and all right to sell it, derived from those laws, ceases. Therefore the provisions of the first section of the prohibitory act, will not apply
to imported liquor, while in the hands of the importer, and in the casks, bottles, or packages, in which it was imported. But imported liquor, sold or kept for sale otherwise than as here stated, is applicable to that section, and
is not exempted from the operation of the last clause of the section. Held, that the provisions of the first section of the prohibitory act (see ante page
290) are not in conflict with the provisions of the constitution (Art. 6) of this state, which says, that no person shall be deprived of life, liberty, or property, without due process of law. (This is adverse to the decisions of Brown and STRONG, JJ., in the case of Berberrich and Toynbee, ante
page 289.) The rights and interests of individuals are, to some extent, subordinate to those of the public, and must yield to them in cases of conflict. It is the acknowl. edged province of legislazion to prescribe, by law, such rules concerning the title to property, and its sale and use, as will, in the judgment of the legisla. ture, most effectually secure to the owner she enjoyment of these rights on the one hand, and on the other, protect the public from injuries that may result from the exercise of them. This power, however, is subject to the restraints imposed by the constitution, through which, in this state, the legislature de
rives its powers. The protection of the above constitutional provision, in its letter and spirit, ex.
tends in equal measure to each individual, and the aggregate population of the
Wynhammer agt. The People,
state, and to all property, whether its value is measured by mills or millions. If this constitutional provision applies to such a law as the one in question, it necessarily prohibits many of our police and sanitary regulations—and all our commercial regulations, our quarantine and usury laws. For the attempted distinction between the essential characteristics of property, and any of its incidents or qualities which are regarded as elements of its value, whether they constitute its main value, or only a small part of it; and between laws which subject certain classes to some privations, and laws which affect all
classes, and involve great privations, there is no foundation. The legislature, which exercises the sovereign power of the state, is clothed with the power, and charged with the duty, of promoting its prosperity, by regulating its internal commerce, and holding out suitable encouragements to the industry of its citizens; of preserving the public peace by preventing and punishing crime, and of guarding the health and morals of the people, by such laws and regulations as in its judgment may seem likely to promote these objects, subject only to the limitations prescribed by the constitution. The powers of the legislature for these purposes are unlimited. In the choice of the means its discretion is plenary. If, in its judgment, the trade in any article is incompatible with or dangerous to any of these objects of its protection, that trade may be regulated, restricted or prohibited.
Eighth District, Erie General Term, Sept., 1855.
This is a writ of error to the court of sessions of Erie county, where the plaintiff in error was convicted of a misdemeanor, for selling liquor in violation of the act of April 9, 1855.
The first count of the indictment charged that, on the 5th day of July, 1855, the plaintiff in error, at the city of Buffalo, without having any lawful authority, wilsully and unlawfully sold to some person unauthorized by law to sell intoxicating liquor, to the jurors unknown, one gill of rum, one gill of brandy, &c., &c., (the said intoxicating liquor not being alcohol or pure wine, manufactured by the plaintiff in error,) without having filed, in the office of the clerk of Erie county, the undertaking required by the provisions of the 2d section of the said act; and that the sale of the said intoxicating liquor, in the manner charged, was not authorized by any law or treaty of the United States; and that no right to sell the said liquor was given by any law or treaty of the United States,
The plaintiff in error pleaded not guilty, and the cause came on for trial at a term of the court of sessions, held at Buffalo on the 20th day of July, 1855. When the cause was moved
Wynhammer agt. The People.
for trial, the plaintiff in error interposed a challenge to the array of jurors, alleging several grounds of challenge, upon each of which issue was joined by the counsel for the people. The plaintiff in error then moved to quash the indictment, for divers irregularities in impanneling the grand jury. This motion was denied, and the court, by consent of the counsel for both parties, proceeded to try the issues joined on the challenge to the array; and after hearing the proof, the court found and decided that the said challenge was not well taken, and refused to set aside the panel, to which decision the plaintiff in error excepted.
A jury having been impannelled, the counsel for the people gave evidence tending to show that on several occasions, between the 4th and 14th days of July, 1855, the plaintiff in error sold and delivered to several persons, in quantities less than one pint, brandy, at his bar in Buffalo, which was drank on his premises. The people then rested their cause.
The counsel for the plaintiff in error then moved the court to direct the jury to find a verdict of not guilty, on the grounds,
1st. That it did not appear that any offence had been committed by the defendant.
2d. That the charges in the indictment were not proved.
3d. That it did not appear but that the liquor, alleged to have been sold, was liquor the right to sell which was given by laws or treaties of the United States.
4th. It did not appear but that the liquor sold was imported into this country, by the defendant, from foreign countries, in pursuance of laws of the United States.
5th. That the first section of the act in question is in violation of the constitution of this state, and of the United States, and is void.
6th. That the 4th section of said act is likewise contrary to said constitution, and is void.
7th. That the whole act is also unauthorized by, and in conflict with, the laws and treaties of the United States, and the constitution of the state of New-York, and is void.