Board of Commissioners of Excise v. Dougherty , 55 Barb. 332 ( 1869 )

By the Court, Táppen, J.

The action was brought to recover of the defendant five penalties of $50 each, for selling liquor without a license, under section 13 of the act of 1857, known as the excise law. (Laws of 1857, vol 2, p. 405.)

The sale by the defendant was clearly proven, and the . defense relied upon was that his wife owned the tavern, and that he sold for her. The charge of the judge was in substance that if the defendant sold as principal, he was clearly liable, but if he sold as the agent of his wife, that was a complete defense. The jury found for the defendant, and the case is reviewed upon suitable exceptions to the charge.

The statute in question requires that persons licensed to sell liquors to be drank on the premises, shall propose to keep an inn or tavern, &c. So that a license is not only to the person to sell &c., but is also a license to sell liquor at a particular place. A license so issued would protect the agent or clerk of the licensee; but a person selling as the agent or clerk of a person, or at a place not licensed, cannot obtain immunity by claiming that he acted for another party.

In the Excise Commissioners of Wayne v. Keller, (20 How. 280,) the wife kept the place with her own means, conducted the business and sold the liquor, and the husband was held liable to the penalty. In that case the offense was subsequent to the act of 1860 concerning the liabilities of husband and wife, and the case of Hasbrouck v. Weaver (10 John. 247,) is quoted. There the wife sold whisky in in the absence of her husband, and the court said, approving a rule laid down in Hawkins, “the husband is answerable for a forfeiture under a penal statute incurred by the wife.”

It was not claimed on the trial of the case now under consideration that the wife of Dougherty had any license; it was apparently conceded, and in his charge the learned judge said: “There has been a clear violation of the statute proven;” so that the point now raised by the defendant that the plaintiff failed to show that the defendant’s wife had no license, can have no force here, not being raised at the trial, but being at variance with the course of the defense at the trial.

[Kings General Term, December 30, 1869.

"We think a violation of the 13th section of the act was established by the evidence against the defendant, and his agency does not, under the quoted decisions, relieve him. of liability.

Judgment reversed and a new trial granted; costs to abide the event.

J. F. Barnard, Gilbert and Tappen, Justices.]