Murphy v. Inhabitants of Montclair

[675] The opinion of the court was delivered by Reed, J. The first objection urged against the legality of the proceeding is, that no note was made of the day, month, and year of the institution of the suit. Ackerson v. Zabriskie, 2 Halst. 167. The act of 1871, p. 1426, if applicable to the present proceeding, admittedly obviates the irregularity which might otherwise exist. I think it is applicable. I think these several acts are to be construed as in pari materia, and the designation of an increased penalty and new method of enforcing the judgment, does not change the character of the procedure for the enforcement of the statute. It is an information stripped of all the features of such a proceeding after the lodgment of a complaint, and assuming then the character of an ordinary action of debt, with a special method of enforcing the judgment. It is again urged that no mention is made of the act of 1871, in the pleadings. Crawford v. New Jersey R. R. Co., 4 Dutcher 479. This objection is not within any of the reasons assigned for reversal, and we cannot consider it. It is again insisted that the pleadings should have asserted that the liquor sold was malt or spirituous. The prohibition is against the sale of any ale, porter, beer, or other malt or spirituous liquors, as a beverage The demand states the sale of two glasses of beer as a beverage. The words “ other malt or spirituous liquors,” indicate, of course, what would have been equally apparent without their use, that the statute was leveled at the sale of liquors of that class. The use of these words was not as a definition or limitation of the meaning of the words ale, beer or porter, but as a sweeping prohibition of the sale of any beverage within the meaning of the words malt or spirituous, of whatever name. The words “ ale, porter, beer,” when used in statutes relative to licenses, have no uncertain meaning. Each means a cer [676] tain liquor made from malt, containing a certain percentage of alcohol. Had the state of demand charged the sale of two glasses of porter, it would hardly have been seriously argued that an assertion that it was a malt or spirituous liquor, would have been essential. But it is said that beer may mean either a malt liquor or an innocent beverage, known as spruce beer, small beer, ginger beer, &c. I think there is nothing in this, for even if the court can judicially recognize the existence of the various distinctions in the quality of these beverages, yet the word “beer,” as here used, has a well-defined signification. The words “by night,” in the Crimes Act, (§ 93,) have no more a distinctly ascertained meaning than either of these words, when used as here in an act concerning licenses. As there is no need of specifying that “by night” was meant the portion of the natural night within the twilights, (State v. Robinson, 6 Vroom 73,) so, in this instance, there is no need of asserting that the word “beer” meant what the word usually implies when used in statutes to regulate the selling of malt or spirituous liquors. The allegation was sufficient. It is again objected that the action should have been brought in the name of the inhabitants of the township of Montclair, in the county of Essex. But the statutes 1871, p. 1426, and 1873, p, 481, provide that the action shall be brought in the name of the inhabitants of Montclair, as it is brought. It is again said that this is an action for a second offence, and that at the time of this trial and entering judgment, the former judgment had been appealed to the Court of Common Pleas. The judgment in the first case was relied upon as evidence of the first offence, proof of the commission of which was an essential part of the case against the defendant upon the second suit. But the taking an appeal from the first judgment did not destroy its force as evidence of the fact. Where a judgment itself is the foundation of an action, the [677] fact that it is being in process of review upon appeal, will not defeat the action. In Suydam v. Hoyt, 1 Dutcher 230, it was held that in an action upon a judgment entered in the Supreme Court of the State of New York, a plea setting up the fact that said judgment had been removed, by appeal, to the general term of the Supreme Court, was bad. See also Freeman on Judgments, § 433. But if this were not so, the defendant is not in a position to take advantage of the existence of the appeal. Nothing in the ease shows that there was any proof or any offer to prove, on the trial below, that an appeal was pending. It is next urged that there should have been a conviction as well as judgment. In proceedings upon information that is the proper procedure. But, as before observed, the statute provides for an action of debt simply, and a conviction is unnecessary. The last objection taken on the argument was, that no amount was demanded in the summons. This is not within any reason and cannot be considered. Judgment must be affirmed, with costs.