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disgrace it is that Congress does not do something to lift it out of this quagmire! The matter is past argument, the necessity is conceded. Any thing that has been suggested would be better than this condition of things. We have recently seen a suggestion that a separate court be constituted for patent business. Whether this can be constitutionally done we do not know. Nor do we know whether

the amount of patent business coming to the Supreme Court would justify it. But perhaps it would not be unwise to cut off these appeals, and constitute a separate court for this business. There really is very little legal learning required in it. It mainly involves an expert knowledge of mechanics, and it might better be intrusted to a bench of skilled mechanics.

hard to find a "demagogue" or "sycophant" our bench.

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NOTES OF CASES.

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N Loubat v. LeRoy, 40 Hun, 546, it was held that a member of a club may not be expelled withand defend himself against the charges. The court, out reasonable notice of and opportunity to attend Daniels, J., said: "The governing committee was the sole body to hear and determine the case, and to adopt the conclusion or take the action, which stances appearing. But in taking the action which might be considered justifiable under the circumthey did upon the report and the information submitted with it, no notice of their consideration or that they designed in any manner to act upon the report of the committee of five, was given to the plaintiff. He had no opportunity to appear before the governing committee, or to be heard concerning the action which it might be considered proper to take. If he had been, notwithstanding the cogency of the evidence against him, he might have submitted some reasons, or some considerations, which would have mitigated the action of the members of the committee in attendance, and resulted in a punishment short of that which was provided for by the resolution. This probability, or even though it may be only a possibility, has in all investigations of this description been considered sufficient to require, as a demand of justice, that the party proceeded against shall in all cases have notice of the hearing intended to be had, and an opportunity to exculpate himself as far as that may be done, either in the vindication or palliation of the misconduct forming the foundation of the complaint. The

Mr. Joseph Daniel Pope, in an address before the South Carolina Bar Association on "The Tenure of the Judicial Office," advocated a life tenure, and as to the mode of choice he said: "The judicial systems of the several States have certainly and steadily moved in the wrong direction. All of the new States, except Florida, that have come into the Union in the last forty years have (every one of them) curtailed the term of the judicial office; and every one, except Florida, has given the election of judges to the people. And many of the older States breaking from their ancient customs have followed this pernicious example. Alabama, Arkansas, California, Colorado, Indiana, Illinois, Iowa, Kansas, Maryland, Michigan, Minnesota, Nebraska, Nevada, North Carolina, Oregon, New York, Ohio, Pennsylvania, Tennessee, Texas, West Virginia and Wisconsin (being twenty-two out of the thirty-eight States) have all given the election of judges to the people, their holdings being generally by a dimin-legal principle is a general one affecting all proished term.

ceedings which may result in loss of property, position or character, or any disaster to another; that he shall be first heard by the board or tribunal considering his case before that body will be legally permitted to pronounce its condemnation. This principle has been considered and applied to the action of associations of this description, and it has been held in general terms that its committee is bound to act according to the ordinary principles of justice, and are not to convict a man of a grave offense which will warrant his expulsion from the club without fair, adequate and sufficient notice, and no opportunity of meeting the accusations brought against him.' Fisher v. Keane, L. R., 11 Ch. Div. 353. It was also considered in many other cases, resulting uniformly in its approval and confirmation. Hopkinson v. Marquis, etc., L. R., 5 Eq. 63; Labouchere v. Earl, etc., L. R., 13 Ch. Div. 346; Wood v. Wood, L. R.. 9 Ex. 190, where, in the course of the decision it was said, 'no man shall be condemned to consequences resulting from alleged misconduct, unheard and without having the oppor

This is far from encouraging as to the future character, learning and independence of the judiciary in these American States. That a judge should be compelled to bend his ear to catch the censure or the applause of the populace is in itself a disaster. Human nature is the same the world over. The system may work reasonably well for a time, but it is vicious, and in the end leads to corruption, the fatal tendency being to exclude high and incorruptible men from the judicial office. Let us not be deceived; court favor and popular favor, unlike as they may appear, are near of kin—the one breeds the supple sycophant, the other gives birth to the designing demagogue; let them change places for a moment, and it will be found that the demagogue is at once the sycophant, and the sycophant in turn the demagogue; both, it will be found, are the willing slaves of power, wheresoever power for the time may be lodged. He speaks of the opposite system as "splendidly illustrated in the English courts." The English method may be well enough under the English system, but here we prefer judges elected by the people for a term of four-tunity of making his defense. This rule is not corteen years, to judges appointed by a political parti- fined to the conduct of strictly legal tribunals, but san governor, for life or a less term. It would be is applicable to every tribunal or body of persons

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invested with authority to adjudicate upon matters involving civil consequences to individuals.' Id. 196. A like principle was also declared in Ines v. Wylie, 1 Car. & Kir, 262; Willis v. Childe, 13 Beav. 117; Murdock v. Philip's Academy, 12 Pick. 244, by Mr. Justice Lawrence in a very thorough and able opinion, considering the authorities in Hutchinson v. Lawrence, 67 How. Pr. 38. This principle was violated in the proceedings taken against the plaintiff, for he was not afforded an opportunity to be present when the statements of other persons were obtained by the committee of five. Neither was he permitted to be present before the members of the governing committee in attendance when the report of the committee of five was received and acted upon and the resolution adopted for his expulsion. The failure on his part to request the privilege to be present is no answer to this exclusion, for he was not legally bound to ask this privilege, but the committee, taking action upon the evidence which was obtained, was legally bound to extend and secure the opportunity for a hearing to the plaintiff before its members could proceed to the hearing and consideration of the case. There was a total failure to observe this obligation of supplying the plaintiff with notice of the hearing and an opportunity to contest the action taken against him, and that deprived the proceedings as well as the final resolution of all legal effect as to him. The cases of People ex rel. Flanagan v. Police Commissioners, 93 N. Y. 97; People ex rel. Farrell v. Same, 20 Hun, 402, and People ex rel. Gilhooly v. Same, 23 id. 361, are in entire harmony with this principle, for in each of them the relator was afforded an opportunity to be present before the board and contest its action when the final hearings were had upon which the decisions complained of were made. Instead of being authorities sustaining the proceed ings taken against the plaintiff, they add further support to the necessity already suggested of observing the obligation to give notice, and afford the party proceeded against an opportunity to be heard before a determination can legally be made against him."

In Hartranft v. Du Pont, United States Supreme Court May 10, 1886, 6 Sup. Ct. Repr. 1188, the hull and boilers of a craft used to transport the owner and his superintendent across the Delaware, and Occasionally his workmen, to the number of nine or ten, and having a small engine and boiler, were held subject to inspection, such vessel differing but slightly from a ferry-boat or a yacht, and falling under "other small craft of like character;" and the owner is liable in the penalty imposed if he fail to comply with the provisions of the statute. The court said: "It seems to us clear that the Repauno comes within the class of boats described in this section. Of course, she bears no resemblance to a canal-boat, but she only differs from a ferry-boat, as it is generally understood, in not conveying pas

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sengers for hire; and she differs from a yacht in not being sea-going, if, in fact, she is not sea-going, and in not being designed and used for pleasure merely. But if neither a ferry-boat nor a yacht, she clearly falls within the meaning of the phrase 'other small craft of like character.' If such a boat, so constructed and used, is not included in that phrase, it would be difficult to name any that would be. If it is argued that the Repauno is not such a craft as Congress would require to carry a licensed engineer and a licensed pilot, the reply is that as section 4426 makes this requirement of a canal-boat propelled by steam, and subjects it to the other provisions of law for the better security of life, there is no reason why the same exactions should not be made of the boat in question. The reason of the law applies to the Repauno. The purpose of title 52 is primarily the protection of the passengers and crew and property on vessels propelled by steam. The law was passed also to protect the lives and property of other persons on other boats, and at the wharves. The Repauno was of sufficient size to cause peril to life and property by an explosion of her boiler. She was not a skiff. She was not a mere toy, incapable of doing harm. The plaintiff's superintendent, who daily, and his workmen, who occasionally, were carried back and forth upon her, and the pilot and engineer, who were required for her navigation, and the people in other boats who passed her on the water, or those who stood on the docks where she landed, where entitled to the same protection which the law provided against the explosion of the boilers of larger craft. A boat propelled by steam, which habitually carries four persons and sometimes more, and is capable of carrying twenty-five, ought to be subject to inspection. The fact, that if her boiler should explode, or her hull spring a leak, probably only four lives would be imperiled, does not occur to us as ground why she should be exempted from the provisions of the law requiring inspection of vessels propelled by steam." Bradley, J., dissenting, said: "I cannot agree to the judgment in this case. It seems to me that it carries the application of the statute to an unreasonable length. The boat in question was a mere skiff, not larger than a ship's yawl, with a capacity not exceeding that of a good-sized canoe, without deck, with a boiler not much larger than a tea-kettle, and a cylinder of seven inches stroke, and not much larger than a popgun. I think we are in danger of sticking in the bark by construing the statute as requir ing such a vessel to be inspected. Indeed it seems to me that the terms of the law do not apply to such a boat. The boat in question is not of 'like character,' within the meaning of the statute. It seems absurd to require a man to have an inspection made of a mere skiff which he has rigged up to take him across the river to his shops, and to have a licensed engineer and licensed pilot to navigate it. all due respect, I think it is running the application of the statute into the ground."

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isting County Courts are continued and the judges thereof in office at the adoption of this article shall hold their office until the expiration of their respective terms. Their successors shall be chosen by the electors of the counties for the term of six years." "The county judge shall also be surrogate of his county; but in counties having a population exceeding 40,000 the Legislature may provide for the election of a separate officer to be surrogate, whose term of office shall be the same as that of county judge."

In order to carry into effect these provisions the

APPEAL from a judgment of the General Term, Legislature passed chapter 859 of the Laws of 1871,

Second Judicial Department, entered upon an order made February 19, 1885, which adjudged that the relator was entitled to the office of surrogate of the county of Queens from January 1, 1886, and that defendant be ousted therefrom.

In November, 1879, Alexander Hagner was elected surrogate of Queens county for six years from January 1, 1880. He duly qualified, and died in office April 7, 1880.

On the 19th of April the governor of the State appointed Garret J. Garretson to perform the duties of surrogate, “and to hold the office and receive the fees, profits and advantages thereof for and during the time limited by the Constitution and laws of the State." In the fall of 1880 the secretary of State issued a call for the "election of a surrogate in the place of Alexander Hagner, deceased," and in November of that year defendant was elected surrogate under that call, and received his certificate of election November 10, 1880, but did not enter upon the discharge of his duties until January 1, 1881.

which among other things provided for the election of county judges in each of the counties of the Stateexcept New York and Kings-upon the expiration of the terms of office of the existing incumbents, and for the election of separate officers as surrogates at the option of the boards of supervisors of the respective counties whose population exceeds 40,000. Under these provisions nearly one-half of the counties of the State elected to avail themselves of the privilege of choosing separate officers as surrogates, and the duties of the offices of county judge and surrogate throughout the State were thereafter distributed among three classes of persons, viz., those who performed the duties of both county judge and surrogate -those who discharged those of county judge alone, and those who acted as surrogates only. The scheme of the Constitution, whereby the duties of both surrogate and county judge were in a majority of the counties of the State united in the same person, rendered it imperative that their terms of office should be identical, and furnished an obvious reason for the require

In the fall of 1885 the secretary of State issued a callment relating thereto contained in that instrument. for the election of a surrogate of Queens county in the place of Charles De Kay Townsend, and under that call the relator was duly elected surrogate, rereived his certificate of election, took his official oath. and filed his official bond.

The question is, was the defendant elected for a full term, beginning the 1st of January, 1881, or only for the unexpired term of Alexander Hagner, deceased. John E. Parsons, for appellant. H. E. Sickels, for respondent.

RUGER, C. J. The only question presented by this appeal is whether the defendant, who was elected surrogate of Queens county at a general election in November, 1880, is entitled to a full term of six years from January 1st succeeding his election, or is limited to filling out the unexpired term of his predecessor. Alexander Hagner was elected surrogate of the county in November, 1879, for a term of six years from January 1, 1880, but after holding the office about three months, died April 8, 1880, and was succeeded by Garret J. Garretson, under an appointment from the governor, "for and during the time limited by the Constitution and the law," and Garretson duly qualified and discharged the duties of the office until January 1, 1881. The defendant then entered the office by virtue of his election, and continued to discharge its duties until January 1, 1886, when the relator demanded possession, claiming under an election held in November, 1885, at which he received a majority of the votes cast for surrogate. This election was invalid unless the term to which the defendant was entitled by virtue of his election expired on December 31, 1885.

The office of surrogate as it now exists was created and organized under the judiciary article of the Constitution adopted in 1870, and the statute passed to effectuate the constitutional intent. The portions of the Constitution relating to the present inquiry read as follows: Article 16, section 5, provides: "The ex

In the case of county judges who perform the duties of surrogate they are by force of the Constitution none the less county judges, although they also act as surrogates and are affected by all legislation applicable to county judges or surrogates, but in the case of separate officers elected as surrogates their terms of office must conform to those of all county judges as the result of the fundamental law declaring that they "shall be the same as the county judge."

In view of the circumstances it will be seen how impossible it is by legislative enactment to sever the mode of selection or the terms of office of one of these classes from the other, save in the counties of New York and Kings, which are in this respect excepted from the operation of the Constitution. It may occur that the competency of persons to fill the respective offices of surrogate and county judge may differ, and might require one to cease to serve in one capacity, whereas he could lawfully continue to act in the other; but this does not seem to us to present any obstacle to the enforcement of the constitutional provision as to the identity of their respective terms of office. People v. Carr, 100 N. Y. 231.

In the case of county judges who are also surrogates the termination of their competency as county judges would also render them incompetent to serve as surrogates, inasmuch as their right to act as surrogates is a mere incident to the office of county judge, and must terminate when their capacity to serve as county judge

ceases.

As to the separate officers holding the office of surrogate, the circumstance that they are authorized to continue to act as surrogates when a county judge would be ineligible to serve in a judicial capacity does not create any difference in their respective terms of office or introduce any embarrassment in enforcing the constitutional scheme as to the identity of their terms of office.

It would therefore seem that the language of the Constitution had indissolubly wedded the official' terms of all county judges and surrogates, and had

thus placed the subject beyond the legislative power to effect any discrimination between these officers in that respect.

We are thus brought to the consideration of section 5 of the act of 1871, which it is claimed has that effect. It reads as follows:

"§5. The separate officer elected and performing the duties of the office of surrogate and the legal officer discharging the duties of county judge and of surrogate, and elected at the election provided for in this act, shall enter upon their duties on the first day of January next after such election, and shall hold their office for the term of six years from said first day of January; but when such officers shall be elected to fill a vacancy then they shall enter upon the discharge of the duties of the office to which they have been elected immediately upon the receipt of the certificate of such election."

In this connection it is important to consider also the amendment of that act effected by chapter 613 of the Laws of 1881, which is as follows:

"$9. When a vacancy shall occur in the office of any county judge in any of the counties of the Stateexcept New York and Kings-from any cause before the expiration of term, the office shall be filled for a full term of six years at the next general election happening not less than three months after such vacancy occurs."

Whatever provision may at any time be enacted by the Legislature affecting the term of office of county judge must, if lawfully adopted, be by force of the Constitution equally applicable to the office of surrogate. Thus the act of 1881, providing that a vacancy happening in the office of county judge shall be filled for a full term of six years at the next general election thereafter, operates both to fix the status of a surrogate thus elected, and to repeal any prior legislative provisions, if any there were, repugnant thereto. Livingston v. Harris, 11 Wend. 329; Fowler v. Bull, 46 N. Y. 57; Harrington v. Trustees, 10 Wend. 547.

Although this amendment was adopted subsequent to the election under which the defendant claims, it became a law before the election of the relator, and must be regarded not only as a legislative interpretation of the act of 1871, but as determining the law of the land when the rights of the parties herein accrued.

Whatever effect this amendment had upon the term of office of a county judge under the force of the constitutional requirement that the term of a surrogate shall be the same as that of a county judge, it cannot be questioned but that it had a like effect upon surrogates. The amendment in terms refers generally to the office of county judge alone, but this embraces not only those persons who are county judges, but also those who are also surrogates of their county. If the act of 1871 is susceptible of the construction placed upon it by the relator, we should have not only one term of office for a county judge and another for a surrogate, but also different terms for the same office in respect to the several duties required to be discharged by him. A construction so absurd and repugnant to common sense should not be adopted if the language of the statutes is reasonably susceptible of any other meaning.

It is also well to premise that there are no considerations of public policy to be subserved or special object to be accomplished in preserving the periodicy of election in the case of these officers-as there was in the case of McCtave, 99 N. Y. 83-which requires the adoption of fixed consecutive periods for their election. The primary object of the Constitution seems to have been to make the offices elective, and to give efficiency to the administration of their duties by

lengthening the terms of their incumbents, and this seems to be best promoted by giving a legitimate effect to every constitutional election of such officers. In considering this question it is also important to observe that there is no express provision, either of the Constitution or the statutes, which restricts the term of an elected county judge or surrogate to any other period than that of six years mentioned in the Constitution, and the point presented is whether in giving a construction to the statute of 1871 it shall be held by implication to have been intended to restrict the duration of the term in any case. The language of the section is susceptible of two constructions only, and they are presented by the respective parties thereto. The defendant claims that the words "where such officer shall be elected to fill a vacancy," may be interpreted according to the popular signification of the language, and considered descriptive merely of the occasion for the election, and not as defining the term of office, while the relator insists that they define the limit of the term. Upon the success of this contention the relator's case must stand or fall.

Although the question made has under the aspect presented by the various statutes relating thereto been the occasion of quite conflicting views on the part of able jurists, and may not be entirely free from doubt, yet we thing when examined in the light of the controlling effect to be given to the constitutional provisions, it is still capable of a reasonably certain solution. All of those contingencies for which the Constitution either expressly or impliedly provides must be governed by its provisions, and it is only in cases expressly delegated to the Legislature for its action, or when the Constitution is silent on the subject, that the legislative will is controlling. An examination of the Constitution indicates that certain subjects affect. ing the question under consideration upon which its framers have clearly expressed their will, and which are decisive, as we think, of this appeal. Thus express provisions declare that county judges and surrogates are to be elected, and when elected their terms of office are to commence on the first day of January next succeeding their election, and to continue for six years therefrom. The language of the Constitution is broad, plain and unequivocal. The successors of the judges then in office "shall be chosen by the electors of the counties for the terms of six years." Who are the "successors" of the judges then in office? It confessedly does not mean the immediate successor alone, but by universal acceptation has been held to lay down the rule not only by which the constitutional term of all successors shall be determined, but also a permanent method for their selection. People v. Carr, 86 N. Y. 514.

The language applies to all of the indefinite line of successors or the original incumbents, and furnishes a controlling rule on the subject, except in the special cases where the Constitution provides for the filling of vacancies. Whenever a successor to a prior incumbent is to be chosen by election, his term of office is fixed at six years by the express provision of the Constitution. Section 16, article 6, of the Constitution, provided for certain vacancies in these offices by au thorizing the Legislature on the application of the board of supervisors of any county to provide for the election of special officers to discharge the duties of county judge and of surrogate in such counties in case of their inability or of a vacancy, and in some of the counties of the State these provisions have been availed of, and the special officers so chosen necessarily fill any vacancy occurring in the offices to discharge the duties for which they were elected. In other counties however vacancies in the office of county judge and surrogate must be supplied accord

ing to the general provisions regulating the mode of filling them provided by the Constitution and statutes; and the county of Queens is one of such counties.

In the case of elective officers the necessity for the existence of some continuous authority to fill vacancies temporarily, in order that the performance of their duties may not be too seriously interrupted, and the inconvenience and inadequacy of any system by which such power could be exercised by the people through the medium of popular elections except at regular periods led to the adoption of that clause of the Constitution which delegated to the Legislature power to make provision for such cases. The entire scope and theory of the Constitution however requires those offices when vacant to be filled by the people at their regular annual election when it is possible to do so; but when a departure from that mode is rendered necessary by any accident, the power of selection is limited to the shortest space of time possible, and a return to the elective principle at the earliest opportunity is necessitated.

The Constitution therefore provides that the Legislature shall make provisions for the selection of persous to fill temporarily such vacancies as may occur in public offices, but in the case of the adoption of any other mode than that of election, such power is limited to the period of time intervening between the commencement of the political year next succeeding the first annual election after the happening of the vacancy and the occurrence of the vacancy. People v. Keeler, 17 N. Y. 371; § 5, art. 10, Constitution.

In the exercise of this power it was competent for the Legislature to provide as it did by section 5 of the act of 1871, for the selection of some person to fill the office of surrogate between the occurrence of a vacancy and the first day of January thereafter, and the designation by such section of the persons who had been theretofore elected as surrogate did not thereby enlarge his constitutional term, but provided simply a mode of filling out a term of limited duration over which the Legislature had unquestionable constitutional authority. During the period intervening between the occurrence of a vacancy happening so that an election can be held at a regular general election and the commencement of the next political year, the Constitution gives the Legislature unlimited power to indicate the mode of filling it, and it is competent to provide therefor by conferring power of appointment upon the executive department or in such other mode as in its discretion it may deem wise and prudent.

After the death of Haguer, Garretson was appointed to fill the vacancy in the office "for and during the It time limited by the Constitution and the laws." was competent for the Legislature to provide that his authority should terminate upon the election of a successor, and that such successor should serve during the remainder of the limited term, extending to the first of January succeeding the occurrence of the vacancy. The Legislature had not however the power to restrict the term of a duly elected officer whose term of office had been fixed by the Constitution, or to provide any other term for a surrogate than that belonging to a county judge. A reasonable construction of the act of 1871 therefore requires us to hold that the words "when such officers shall be elected to fill a vacancy," refer simply to the contingency out of which the necessity of an election arises, and do not attempt to limit the term for which the officers named were to be elected. To hold otherwise would bring the provision in conflict with the limitations upon the legislative power imposed by the Constitution (People v. City of Brooklyn, 89 N. Y. 200) and create an unwarrantable distinction between the terms of office pertaining to county judges who perform the duties of

judge and surrogate and those who hold only the separate office of county judge.

The interpretation thus put upon the act of 1871 not only gives it legitimate effect but avoids a conflict with constitutional provisions, and brings the office of county judge and surrogate into harmony in respect to filling vacancies therein by an election, with those of judges of the Court of Appeals and the Supreme Court, and also with those of sheriffs, county clerks, registers, coroners, district attorneys and most other elective officers mentioned in the Constitution. § 1, art. 10, Constitution.

It is unnecessary for us to attempt to give a construction to section 2492 of the Code of Civil Procedure, inasmuch as the board of supervisors of Queens county has not attempted to exercise the authority conferred by that provision.

These views lead to the conclusion that the defendant was elected to the office of surrogate of Queens county in 1880 for the full term of six years from the first day of January succeeding, aud is entitled to hold such office during that period.

The judgment of the Supreme Court should be reversed, and final judgment rendered for the defendant, with costs.

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The appellants, who were trustees and members of the managing committee of a club, were convicted under the Licensing Acts for selling liquor without a proper license to persons not members of the club. It appeared that the liquor was sold on the club premises by the steward of the club, who in selling it acted contrary to the orders of the appellants, and without their knowledge or assent. The money which he received for the liquor was paid by him to the account of the club. Held, that the conviction was wrong, for the appellants were not, under the circumstances, responsible for the act of the steward.

ASE stated by justices of Beacontree under 20 & 21

CASF stated justices of Viet, et te

At a petty sessions held at Stratford on the 25th of July, 1885, four informations were preferred against the appellants by the respondent, an officer of inland revenue-1. For having, as trustees of the Cyprus Workman's Club and Institute, on the 12th of March, 1885, retailed certain spirits, to-wit, one gill of brandy, without having in force such a license as was required by 23 Vict., ch. 27, § 19-2. For having on the 17th of March, 1885, sold one pint of beer by retail, to be drunk and consumed in and upon their premises, without having an excise license under 4 & 5 Wm. 4, ch. 85, §17--3. For having on the 12th of March, 1885, sold certain wine, to-wit, one gill of port, without having a proper license-4. For having on the 17th of March, 1885, dealt in and sold certain tobacco, to-wit, two cigars, without having a license as required by 6 Geo, 4, ch. 81, § 26. The justices convicted the appellants of each of the above-mentioned offenses, and ad

judged them to pay the several penalties of 251., 10,

10., and 251., and costs, and in default of sufficient distress, awarded imprisonment for the several terms

*See Seine v. State, 55 Md. 566; S. C., 39 Am. Rep. 419; note, 32 id. 433; Graff v. Evans, 8 Q. B. Div. 373.

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