Hall vs. the State. 4th ground. 1 Chit. Crim. L. 217, 218. 6th ground. 1 Chit. Crim. L. 230, 231, 227, 228. 7th ground. 3 Chit. Crim L. 672 and n. b.; Penal Code, secs. 255, 258.; 1 Russ. Cr. 304, 305. 8th ground. Root vs. Sherwood, 6 Johns. 68; Blackley vs. Sheldon, 7 Johns. 32. 9th ground. Penal Code, secs. 317. 319. WARNER, J. delivering the opinion of the Court. The defendant was indicted for a misdemeanor, and was charged in the indictment with keeping an open tippling house on the Sabbath day, in the town of Lanier, in the county of Macon, on the 22d day of March in the year 1846, and was found guilty. There was a motion in arrest of judgment in the Court below, on several grounds specified in the record, all of which were overruled by the Court; to which the defendant excepted, and now assigns the same for error in this Court. We have examined the several grounds of error alleged upon the record to the decision of the Court below, but have not been able to discover much merit or force in them. The indictment accuses the defendant of the offence of a [1.] misdemeanor, and then proceeds to specify the particular acts of the defendant which constitute the offence. By the 1st section of the 1st division of the Penal Code, it is declared, "A crime or misdemeanor shall consist in a violation of a public law, in the commission of which there shall be an union, or joint operation, of act and intention, or criminal negligence."-Prince 620. The 6th section of the 10th division of the Penal Code, declares : Any person who shall be guilty of keeping open tippling houses on the Sabbath day, or Sabbath night, shall on conviction, be fined, or imprisoned in the common jail, or both, at the discretion of the court."-Prince 646. To keep open tippling houses on the Sabbath day, is a violation of a public law, and is a misdemeanor, as declared by the first section of the first division of the Code. The second ground was abandoned on the argument. The third ground insists, that as the indictment only charges [2.] the keeping open one tippling house, and not a plurality of tippling houses, no offence is charged for which the defendant can be punished-that penal laws must be construed strictly. In the case of United States, vs. Wiltberger, 5 Wheaton's Rep. 76, Hall vs. the State. Chief Justice Marshall, delivering the opinion of the court, says, "that although penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature. The maxim is not to be so applied as to narrow the words of the statute to the exclusion of cases which those words, in their ordinary acceptation, or in that sense in which the legislature has obviously used them, would comprehend. The intention of the legislature is to be collected from the words they employ." In our judgment it was manifestly the intention of the legislature, from the words employed in the Code, to prohibit the keeping open a "tippling house" on the Sabbath day, as well as" tippling houses." In Hassel's case, 1 Leach Crown Law, it was held under the statute of 2 George II. c. 25, which enacts that it shall be felony to steal any bank notes, that the offence was complete by stealing one bank note. So we think the defendant, by keeping open one tippling house, on the Sabbath day, violated the sixth section of the tenth division of the Penal Code, and was liable to be indicted and punished therefor. [3] The indictment alleges the offence to have been committed on the 22d day of March, in the year 1846; and the fourth objection is, that it does not state the era, or period, from which said date begins. We are of the opinion, it may fairly be presumed to have been in the year of our Lord, 1846, or in the year 1846 of the Christian era. The fifth ground was abandoned on the argument in this Court. [4.] The sixth and seventh grounds may be considered together, which insist that the indictment should have charged the defendant with having sold, given, or otherwise disposed of, his liquors or drink, to some person, or that the keeping open the tippling house on the Sabbath day was a common nuisance, or hurtful to individuals, or to the religion or morals of the neighbourhood. The offence which the statute contemplates is, the keeping open a tippling house on the Sabbath day. The object of the legislature was to remove all temptation to idle and dissolute persons who might be disposed to congregate at such places, and violate the Sabbath by any improper conduct; to say nothing of the temptation which such a practice would hold out to an unlawful traffic with slaves on that day. The law presumes an injury to the public by keeping open the doors of a tippling house on the Sabbath day, or why prohibit it? The offence is complete under the law when it is established that defendant has kept open a Matthis vs. Pollard. deputy, in any way, would be proof of an appointment. 1 A. K. Marshall, 44. Both by our own statute and at common law, the sheriff is liable ciriliter for the acts of his deputy. By our statute he is made liable for the defaults and misfeasance of his depu ties. Hotchkiss, 515; 1 Doug. 43, note 3; 2 Term. R. 148; 2 W. Blackstone R. 832; 3 Wils. 309; 5 Mass. 271; 9 Id. 112; 13 Id. 114; 2 McCord, 410; 1 Binn. 240; 3 H & M. 127. By the act of 1799, the sheriff is required, at the expiration [2.] of his term, by indenture and schedule, to turn over to his successor "all such writs and processes as shall remain in his hands unexecuted;" and if he fails, or refuses, to turn over such writs and processes, he is liable in damages to the party aggrieved. Hotchk. 516. The object of this statute is to secure the rights of the parties interested in the execution of writs and processes; for, as the sheriff cannot execute a process after the expiration of his term of office, without such requirement, the execution might be delayed or perhaps finally prevented. Again, its object is to protect the sheriff going out of office; for if he does turn over, as required, such writs and processes, after that is done, he is discharged from all liability, except such as may have previously accrued. And the indenture and schedule is evidence of the transfer having been made. It is contended that, inasmuch as Giddens in this case, who was the predecessor of Matthis, did not, by indenture and schedule, turn this execution over to him, he, Matthis, is not liable to pay the money. In other words, he is only liable for himself and deputy for the execution of such writs and processes as came to him by indenture and schedule. We do not so think. The law does not inhibit the receipt of writs and processes by other modes. No matter how an execution comes into the possession of the sheriff, if he gets it at all, he is bound by the requirements of his office, by his oath, and by the obligations of his bond, to execute it; and if he fails to do so, or is guilty of misfeasance or default in any way, both he and his sureties are responsible. The object of the act of 1799 being as stated, the prescription of one mode of turning over, does not exclude others. 5 Gill & Johns. 406. Again, it is said, that Matthis is not liable for the default of his deputy in this case, because the execution did not come into the possession of his deputy, through him. That is to say, he is liable for the acts of his deputy only upon such writs and processes as he delivers over to his deputy, and which came to him from his Matthis vs. Pollard. predecessor. We hold, that the possession of the writ by the deputy, whether original or derivative, is the possession of the principal. The converse of this rule would destroy at once the character of sheriff, which attaches to the deputy-would annul his function, to a great extent, of collecting officer-would endanger the rights of parties plaintiff and defendant, and so limit the liability of the principal as to make scarcely any protection. The writ may be, by law, executed by the sheriff or his deputy. It is the duty of the deputy to receive it, and when it is received, no matter how or from whom, the official liability attaches. Whether the deputy receives the writ from the predecessor of his principal, or from his principal, from the clerk, or the plaintiff or his attorney, through the mail from abroad, or in any other way, he is liable, and so is his principal. Hotchkiss, 515. It is claimed that this case is without all such recognised rules, because Matthis' deputy, Giddens, was also his predecessor. As the predecessor he received the execution, and as deputy retains it ; he therefore does not hold it as deputy, and is not liable as such, noris his principal liable for him. This reasoning is too subtle for any practical purpose. It is not at all defensible. Eo instanti in which Matthis was commissioned, the official functions of Giddens ceased. At that time the writ is in his hands as an unofficial person; he retains it until he is appointed deputy, and so soon as that is done, the law makes tradition of it, from Giddens the unofficial man, to Giddens the deputy sheriff. [3.] Under this state of facts, it is argued that Giddens would be liable, and also his sureties, for this money, as principal sheriff. As sheriff he and his sureties are liable only for such default or misfeasance as occurred before his successor was commissioned, and not afterwards. The record discloses no default or misfeasance during his term of office. None is pretended. Who can doubt but that the payment of this money to Giddens, after he was appointed deputy to Matthis, would be a prevailing plea for the sureties of Giddens in an action against them on his bond? There can be no doubt about it. Upon the reasoning of the counsel, the payment of this money to Giddens, after he became the deputy of Matthis, is no satisfaction of the execution, and the defendant in execution could be made to pay it again; either this would be true, or the plaintiff in execution must lose his money, for, upon their reasoning, he has no remedy against Matthis and his deputy, and it is very clear he would have none against Giddens, as Smith, admr. and another vs. Thompson. By the Court.-NISBET J. delivering the opinion. This bill was returned to the April Term, of Randolph Superior Court, 1846. It appearing to the Court that one of the defendants, Thompson, resided without the limits of the State, at April Term 1846 an order was taken that a rule be published for four months preceding the next term, calling upon him to appear and answer. This rule was published once a month for four months preceding the next term, but four months did not intervene the first and last publication. At the next term, to wit, the Fall Term, 1846, the cause was not reached in the regular call of the docket, and no entry was made in it. At the April Term, 1847, an order was taken, service being perfected, that the defendant, Thompson, plead, answer and demur, at the next term thereafter, not demurring alone. At the time this order was taken, it was resisted, and a simultaneous motion made to dismiss the bill, because the service of the rule by publication was not sufficient, there not having elapsed four months between the first and the last publication. Judge Warren decided that the publication being made once in each month, for four months, the service was good; and whether that decision be right or wrong, is the single point made by this bill. By the act of 29th December, 1838, it is provided as follows: [1.] "When service of any process, writ, bill, order or rule of court, relating to causes in equity, shall be required to be made by publication in any of the public gazettes of this State, the publication of the same, as aforesaid, once a month, for four months, shall be deemed, held and taken to be sufficient, and the clerk shall receive for such publication the sum of five dollars."-Hotchk. 676, Pam. for 1838, sec. 1, page 168. The rule of court makes it necessary that in the order for service by publication, the defendant be called upon to answer and plead at a time specified.-Hotchk. 953. In this case the order was taken at April Term, 1846, and the defendant was required to plead and answer at the next term. It was necessary, therefore, that the publication be made for four months preceding that term. Was there, then, four months publication preceding that term, of the rule in this cause? The record discloses that the first publication was in the last week of the first month, and the last, in the first week of the fourth; and although there was a publication once in |