McGregory agt. Willett.

The sheriff must be bound by the detainer, whatever becomes of the execution in the other suit.

The right of bail to surrender their principal was originally ex gratia only. It grew to be considered as a right. (Petersdorf on Bail, 397; Brownlow agt. Forbes, Johnson's Rep. 101.)

It was to be exercised as a matter of right before return of a ca. sa. against the principal. A surrender after this grew from a matter of privilege into merely a matter of right.

By the Code, in case of an escape, or bail not having been given, the sheriff is responsible as bail (§ 201), and he would be proceeded against as such upon his official bond. (9 Howard, 180, 188.)

His privilege as bail must be commensurate with his liability. Unless otherwise provided, it seems reasonable that whenever bail given by others can be relieved, he should be.

Bail in general may surrender after judgment and execu tion against the person. Is the sheriff, when bail, excepted from this privilege? (§ 191.)

There is nothing to constitute such an exception in the language or spirit of the Code.

In Buckman agt. Gourley (9 Howard, 180), it was expressly held that the sheriff could avail himself of the 191st section, and surrender his principal in his exoneration within twenty days after suit was commenced against him.

The application is made in due time, under the Code and the order of special term of 24th May, 1859.

I think the statute referred to, as to assignment of persons to a new sheriff (2 Rev. Stat. 439, § 67), has no application.

Motion granted, order to be drawn and settled on motion.

Board of Commissioners of Excise of County of Cayuga agt. Freeoff.

SUPREME COURT.

THE BOARD OF COMMISSIONERS OF EXCISE OF THE COUNTY OF CAYUGA agt. PHILIP R. FREEOFF.

The term "strong or spirituous liquors," expressed in the 13th section of the act of 1857 (to suppress intemperance, &c.), includes ale and strong beer; and a sale thereof under five gallons, without a license, forfeits the penalty of $50, mentioned in that section, for each offence.

Cayuga Circuit and Special Term, January, 1858.

MOTION by the plaintiffs for judgment upon the ninth and tenth counts of the complaint.

The complaint contained ten counts. The ninth count alleged that the defendant, on the 25th day of December, 1857, at the city of Auburn, in the county of Cayuga, sold strong and spirituous liquors and wines, to wit: rum, gin, brandy, whisky, port wine, ginger wine, ale and strong beer, in quantities less than five gallons at a time, without having a license therefor granted according to law, contrary to the provisions of section 13, chapter 628, of the laws of 1857, entitled "An act to suppress intemperance, and to regulate the sale of intoxicating liquors," passed April 16th, 1857, and claiming that the defendant was liable therefor to pay the plaintiffs the sum of $50.

The tenth count was like the ninth, excepting that the sale was stated to have taken place on the 1st day of January, 1858.

The defendant's answer denied the allegations of the complaint, "so far as they charge this defendant with selling distilled liquors and wines and ale and strong beer more than twice, and he admits the selling of ale and strong beer as alleged in the ninth and tenth counts in the plaintiffs' com plaint."

The parties, by their attorneys, entered into a stipulation by which the truth of the defendant's answer was admitted,

Board of Coinmissioners of Excise of County of Cayuga agt. Freeoff.

and by which the charges in the complaint against the defendant, except as thus admitted, were waived.

B. F. HALL, for complainants.

H. T. COOK, for defendant.

WELLES, Justice. The only question presented for the consideration of the court arises upon the admission, in the answer, of the sales by the defendant, on the 25th of December, 1857, and on the 1st of January, 1858, of ale and strong beer, without having a license therefor granted according to law.

The 13th section of the act of 1857, which the plaintiffs claim has been violated, is in the following words: "Whoever shall sell any strong or spirituous liquors or wines in quantities less than five gallons at a time, without having a license therefor, granted as herein provided, shall forfeit fifty dollars for each offence."

The question, then, is simply, whether ale and strong beer are strong and spirituous liquors within the sense of the section cited. Upon this question, there is, in my opinion, no ground for entertaining a doubt.

In the case of Nevin agt. Ladue (3 Denio, 43), this precise question was considered and decided. It was there held that ale and strong beer were included in the terms "strong or spirituous liquors," as used in the excise law of the Revised Statutes (1 R. S. 680, § 15), making it penal to sell such liquors in quantities under five gallons at a time, without a license.

The description of the liquors, the sale of which, without license, is prohibited, is identical in the Revised Statutes and the act of 1857. By the 26th section of the former act it is provided, that no person should be subject to be prosecuted, by virtue of the provisions of that title, for selling metheglin, currant wine, cherry wine or cider. The omission of this exception in the present law does not affect the construction of the words ale and strong beer, as given by the court in the case referred to.

Ripley agt. Astor Insurance Company.

The case of Nevin agt. Ladue was reviewed in the court of errors (3 Denio, 437), and, although the judgment of the supreme court was reversed on another ground, the decision of the supreme court on the point in question was left not only undisturbed, but was fully sustained by the chancellor in an elaborate opinion delivered by him. In the views expressed by Judge JEWETT in the supreme court, and by Chancellor WALWORTH in the same case in the court of errors, on the question now under consideration, I entirely concur. Those eminent jurists have exhausted the argument upon the question; and it would be supererogation, not to say temerity and presumption in me to attempt to add to the force of their reasoning.

I am admonished, therefore, to omit any further discussion of the question in this place. Since the decision of the case referred to, the question has been regarded as settled, and should not now be disturbed.

The plaintiffs are therefore entitled to judgment for one hundred dollars, being two penalties of fifty dollars each. Ordered accordingly.

SUPREME COURT.

JOSEPH RIPLEY agt. THE ASTOR INSURANCE COMPANY.

Where there is a stipulation in a policy of insurance requiring the insured to sue, if at all, in twelve months, it operates as a forfeiture, and will be construed strictly. Slight evidence of waiver will be sufficient to defeat its application. Where a mortgagor takes a policy of insurance in his own name, with the customary clause: Loss, if any, payable to A. B., mortgagee," A. B. only in such a case (the mortgage being unsatisfied) can maintain an action for the insurance; the mortgagor cannot assign the claim to another, so that the assignee can sustain an action upon a loss under the policy. An! this rule applies to any party who, under a stipulation in a policy taken by him, makes the loss payable to another.

New-York General Term, May, 1859.

Present, Justices ROOSEVELT, CLERKE and PRATT.

Ripley agt. Astor Insurance Company.

By the court-ROOSEVELT, Justice. This court at general term having decided that a stipulation, requiring the insured to sue, if at all, in twelve months, although binding originally, may be waived by the language or conduct of the parties; and the jury on the second trial having found that in the present instance there was such waiver, we are now to inquire whether that finding and the rulings which led to it were warranted by the law and the testimony. A twelve months' statute of limitations, although assented to by the parties, operates as a forfeiture. It is, therefore, to be construed strictly. Slight evidence of waiver, as in other cases of forfeiture, will be sufficient to defeat its application. "A positive act of the defendants, intended to induce postponement," is not necessary. Silence on the subject, in the midst of negotiations for settlement during the year, however intended, was held by the general term to be competent evidence to go to the jury, and, if competent, its weight was to be determined by them. The court, especially to aid a forfeiture, and a very harsh one, too, will not scrutinize very closely their verdict on such a point: nor, I may add, the rulings of the judge at the trial, unless very clearly erroneous. Dismissing, then, the question of the twelve months instead of six years limitation, which was in effect disposed of in the order directing the second trial, I shall proceed to consider the case on its merits.

It is contended by the insurance company that by a stipula tion in the policy the insured were to keep a watchman in the mill every night; that the loss sued for occurred in the night time; that there was no watchman on the premises when it occurred, and as a consequence that the company are not bound to indemnify. The fire, it is conceded, took place on the morning of the 8th of April, 1849, between three and four o'clock, and of course in the night time. It was, however, a sunday; and the sabbath, it is contended by express terms, as well as by custom, was excepted from the stipulation-a position which, as it seems to me on both grounds, is well taken. The policy was based on a written survey in the form of question and answer. To the question whether the mill