
    SUPREME COURT.
    The Board of Commissioners of Excise of Chemung County agt. Holmes Harvey.
    The “ Act regulating the sale of intoxicating liquors,” passed April 11, 1870, does not deprive a board of commissioners of excise of the power of issuing an execution against the person^ where an execution has been returned unsatisfied against property, on a judgment for a penalty under the above act.
    
      Chemung special term, May, 1870.
    Motion to set aside an execution against the body of the defendant, issued April 23, 1870, on a judgment recovered March 8, 1870, for penalties under the excise laws, an execution against property having first been issued and returned unsatisfied.
    The motion was based qpon the ground that by the act of the legislature, entitled ‘‘ An act regulating the sale of intoxicating liquors,” passed April 11, 1870, the plaintiff had ceased to exist when the execution was issued, and plaintiff’s counsel therefore had nó power or authority to issue it.
    Turner & Dexter, for the motion.
    
    John T. Davidson, opposed.
    
   Boardman, J.

This motion might be denied upon the ground that the execution against the body of the defendant had never been served; that defendant had never been arrested-thereon. Until the defendant has been subjected to wrong by reason of the issuing of this execution he could not be heard in court on such a motion.

But I prefer to consider the question on its merits, and upon such consideration entertain no doubt that the motion must be denied. The act of 1870, (April 11,) does not repeal the act of 1857, but on the contrary, provides, that the same shall be taken and construed as a part of this (1870,) act,” except when inconsistent or in conflict with the new act. This last act is not therefore, in its terms retrospective in its action and does not purport to take away any rights already vested. Even if it were retrospective, it could not deprive plaintiffs of rights vested in them by. virtue of a judgment recovered. (Pruyn Overseers, &c., agt. Tyler, 18 How., 361 ; Van Rensselaer agt. Secor, 32 Barb., 469; Berley agt. Rampacher, 5 Duer., 183; Butler agt. Palmer, 1 Hill., 325; Dwarris on Statutes, 676).

The plaintiff’s rights under this judgment are therefore, unaffected by the act of 1870, and they have a legal existence, and being to enforce such rights, since such condition and power in no way conflicts with the new law, or is in consistent therewith.

For these reasons the motion of the defendant must be denied with $10 costs of motion.  