Bigelow v. Johnson

13 Johns. 428

Opinion

Per Curiam,.

The 7th section of the act provides, “ that if any person shall sell by retail any strong or spirituous liquors, without having a license, or if any person shall sell any strong or spirituous liquors; to be drank in his or her house, outhouse, yard, or garden, without having entered into a recognisance, every person who shall be guilty of either of the offences aforesaid, shall, for each offence, forfeit the sum of twenty-five dollars.” Here are two distinct offences described, viz. one of selling by-retail without license, and the other, selling liquor to be drank in the house, &c. without recognisance.

It is a well-settled rule, that in declaring for offences against penal statutes, (where no form is expressly given,) the plaintiff is bound to set forth specially the facts on which he relies to constitute the offence. No form is prescribed by the statute in this case ; and the plaintiff here declared against the defendant for selling spirituous liquors by retail to A. and B., contrary to the 7th section of the act. This declaration does not embrace the offence of selling liquors to be drank in the house, &c, without recognisance ; or, at least, it is equivocal. The defendant was not apprized that the latter offence would be charged against him; and as to the first offence his license was a complete answer.

Judgment reversed.