16 152 d66 398 The STATE v. FOX and al. On Indictment for unlawfully selling liquor. The Indictment under the statute, Rev. L. 744 s. 4, prohibiting the sale of spiritous liquors by small measure, without tavern license, should specify the kind of liquor sold. * Charging the defendants with selling "ardent spirits," is sufficient. J. M. White, Attorney General for the State.. J. J. Chetwood, for Defendants. HORNBLOWER, J. C. This was an Indictment against Thomas Fox and Elizabeth Fox, for selling liquor by the small measure, contrary to the statute. The Indictment charges, that they "did wilfully and knowingly, sell by retail, and cause and knowingly permit to be sold by retail, on and for their own account, and for their benefit, to one Andrew White, one half-gill of ardent spirits," without specifying the kind of spirits. On the trial, it appeared in evidence, that the defendants Elizabeth and Thomas were partners in the grocery business-that Thomas was the son of Elizabeth and resided in the house with her; that sometimes the one and sometimes the other attended the shop and sold and delivered goods: that the liquor in this case was sold by Elizabeth, Thomas not then being present; but on other occasions when she had retailed liquor by the small measure, he had been present and made no objection to it. The liquor sold to White, was brandy.—The Court charged the Jury, that the Indictment was sufficient, although it did not specify the liquor, and that they might convict one or both of the defendants, according to the evidence. The jury found a general verdict of guilty, against both defendants, and judgment was suspended until the advisory opinion of this Court could be obtained. This indictment is clearly defective, in not specifying what kind of ardent spirits had been sold. The words of the statute, (Rev. Laws, 744, Section 4,) are "any wine, gin, whiskey, cider spirits, brandy, or other ardent spirits, or any composition, &c." If therefore the offence was committed by selling gin, whiskey, *Note under the act passed March1, 1838, Harr. pam. p. 267, 268, it is not necessary to specify the kind of liquor sold-it is sufficient to describe it as ardent spirits. STATE V. Fox and al. cider spirits or brandy, the indictment should have so stated: and if it was any "other" kind of "ardent spirits," the indictment should have specified what other kind, it was. Such specification is necessary, not only to enable the defendant to plead intelligently, but to prepare for his defence. If charged with retailing any of the liquors named in the statute, or any other specified description of ardent spirits, he may be able to show, that he did not deal in that article, and had none of it in his store. The other objection, that the indictment is against two, cannot be sustained. Two or more may be indicted for one and the same offence, and if they are joint owners, and the liquor is sold, by one of them or by their clerk or agent, for their joint account and benefit, with the knowledge of all of them, all may be convicted; or if sold by one of them, or by a clerk with the knowledge of only one of the defendants, he may be convicted alone. Judgment must therefore be arrested. FORD and RYERSON, Justices, concurred. The STATE v. HAMILTON and others. On motion for assessment and execution. A judgment had been entered in May Term, 1828 on a sheriff's bond, dated October, 1826. In November 1833, the same sheriff was amerced for not executing a fi. fa. delivered to him in September, 1827, returnable November Term 1827. The sheriff made a levy before, but no return till after his term of office expired, and his re-election. 16 153 55 39 STATE V. HAMILTON and others. On motion for assessment and execution against the sheriff and his sureties in his bond of 1826, it was decided, that the said sheriff having proceeded to make a levy under the execution in his hands, was bound to complete the executing of it, and could not turn or transfer it over to his successor in office, as an unexecuted writ The term unexecuted writ, used in the statute, means one on which nothing has been done.-If the sheriff commences the execution of a writ, he must continue to execute it, even after he is out of office. The sureties although not parties to the amercement, are yet liable under the judgment on their bond, for all official delinquencies of their principal, during the appropriate year. Although more than a year and a day have elapsed since the amercement was entered, no scire facias in this case is requisite. The motion for assessment is a summary proceeding, admitting of all defences which can be made to a scire facias. A. Armstrong and I. H. Williamson, for motion. J. W. Miller, contra. 1828. STATE OF THE CASE. The above stated action, was in debt on a bond given by Hamilton and the other defendants, as his sureties, for his faithful performance of the duties of sheriff of the county of Sussex. Judgment was entered in that action, in this court in the term of May, In November term, 1833, a judgment of amercement, at the instance of the Paterson Bank, was entered against Hamilton as then late sheriff as aforesaid, for one thousand one hundred and fifty-six dollars and seventy-five cents debt, and twenty-five dollars and seventy-three cents costs, on an execution in favor of the Paterson Bank, against Nicholas Ryerson, which had been delivered to him, to be executed, on the 30th September, 1827. His bond was given on the 17th of October, 1826, and his term of office expired in October, 1827, when he was re-elected and gave a new bond and securities. Intermediate the delivery of the execution to Hamilton, and the expiration of his term of office, he made a levy, by virtue of the execution, on the property of Ryerson, the defendant in execution, but did not return the same, of course, until after his re-election in October, the execution not being returnable until November term, 1827. STATE V. HAMILTON and others. Upon this state of facts, and on notice given to the defendants, A. Armstrong and I. H. Williamson, in behalf of the Paterson Bank, moved for an assessment by the court, and for leave to sue out the execution on the judgment against Hamiliton and others. J. W. Miller, contra, took several exceptions, which are considered in the opinion of the court. HORNBLOWER, C. J. It is objected by the counsel for the defendants: 1st. That no default was committed by the sheriff on this execution, during the period for which the bond was given, on which, this judgment was entered; and that, if the default or neglect of duty which rendered the sheriff liable, occurred after the day of October, 1827, the Bank must look to the bond which had been given on Hamilton's re-election, in October, 1827. After the decision of this court, in 1 Green's R. 160, on a motion to amerce sheriff Hamilton in this very case, it cannot be pretended that he had been guilty of any default prior to his reelection in October 1827. The validity therefore of this objection, depends upon the question, whether if another person had been elected in October, 1827, Hamilton must have turned over the execution, to such new sheriff, or have continued the execution of it himself? By the 31st section of the act, concerning sheriffs, (Rev. Laws 236,) it is enacted "that every sheriff shall at the expiration of his office, turn over, in writing, &c. all writs, unexecuted, to the succeeding sheriff, who shall execute and return the same."—If by unexecuted writs, are intended all writs, that have not been carried into full and complete execution, then the retiring sheriff must deliver over, or transfer to his successor in office, all writs in his hands, not yet returned, and the duty and responsibility of completing the business remaining to be done on such as he has returned. But this has never been the practice, nor has the law ever been understood to require or justify such a course. A capias is said to be executed, when the defendant has been arrested, though the return day has not yet arrived; and so in a legal and technical sense, a fi. fa. is said to be executed, when the sheriff has made a levy under it. though he has neither sold the property, nor returned the writ. Den v. Young, 6 Halst. R. 300, 503. An un STATE V. HAMILTON and others. executed writ, then, in the sense in which that word is used, in the statute, is one, upon, or in virtue of which, nothing has yet been done. If the sheriff to whom a writ is issued, commences the execution of it, he must continue to execute it even after he is out of office. The State v. Roberts and al. 6 Halst. 114. The State v. Sureties of Hardenburgh, 1 Penn. R. 355. Sheriff Hamiliton had commenced the execution of this writ : he had levied on the defendant's property under it, and if he had not been re-elected, he must, as late sheriff have finished the execution of it. His re-election did not alter the case; whatever he did or neglected to do in relation to that writ, he was responsible for, as late sheriff, and not as the newly elected sheriff. It follows then, that those who were his bonds-men, in September and October, 1827, when he began the execution of this writ, are liable for any defaults he has been guilty of at any time since, in relation thereto. 2ndly. It is objected on the part of the defendants that the judgment of amercement against Hamilton, is no evidence as against his securities; that they were no parties to that proceeding, and had no opportunity of being heard, and ought not therefore to be bound or concluded by the amercement. This objection, though plausible, and professing to be founded on the fundamental maxim, that no man is to be condemned without a hearing, is nevertheless unavailable. The rule is misapaplied, in this case. The securities are already condemned by the judgment on their bond; and they were not condemned, without a hearing, or at least, an opportunity of being heard; they were regularly sued by due and ordinary process of law, and condemned in the whole amount of the penalty of their bond. That judgment fixes them for all official delinquencies of their principal. By becoming his securities, they subjected themselves to the payment of such sums, as the law should impose upen their principal for official neglects. If it was necessary to give them notice of every motion to amerce the sheriff, it would, upon the same principle, be necessary to make them parties in an action for an escape or a false return, against the sheriff, which is never done. The 3rd. and last objection is, that it is more than a year and a day, since the judgment of amercement was entered against the |