
    The City Council of Charleston vs. Albert Schmidt.
    
      Practice — Process— Teste— City Council — -License Penalty — Pelease.
    Process in the City Court of Charleston, may bear test before the accrual of the cause of action.
    A license granted by the City Council of Charleston after suit commenced for a penalty, is by an ordinance no release of the penalty, although the license by its terms, takes effect from a day previous to the commission of the offence, and covers the date of the offence.
    In tbe City Court of Charleston.
    The report of his Honor, the recorder is as follows :
    "This was an action within the summary process, jurisdiction for one hundred dollars, being the penalty imposed by the city ordinance for selling liquor without license. (City Ord., p. 230.) When the case was called, it was moved by the defendant’s attorney that the process be quashed as the copy process served on defendant was tested on the 19th of April, 1856, when the offence was alleged to have been committed on the ourth day of May, 1856. I did not consider the objection well founded, and overruled the motion. A witness was then called who testified to the fact of the retailing by defendant on the fourth day of May, as alleged in the process. The defendant then offered in evidence and proved a license from the City Council to retail from the 1st of April, 1856, to 1st April, 1857, which period embraced the time of alleged offence, and the same was pleaded as a release by the City Council. I considered this a matter of construction, and that the City Council had avoided such construction by the XXV section of the Act of 1836, (City Ord.; p. 224,) which provided, “ that after any suit shall have been commenced for the penalty for selling without a license, no person shall be permitted to take oút a license without paying such penalty. And should such license be granted, the penalty shall not thereby be remitted.” I ruled, therefore, that the penalty was not released by the fact of the license, and the case having been submitted, the jury found a verdict for one hundred dollars, the amount of the penalty.”
    The defendant appealed, and now moved this Court, to set aside the verdict on the grounds:
    1. Because the copy process served on defendant was tested on a day prior to the day when the offence was charged to have been committed, the same having been tested on the 19th of April, and the offence charged as committed on the 4th of May in the same year.
    2. Because the defendant showed and proved a license from the City Council to retail from the 1st April, 1856, to the 1st April, 1857, which period embraced the date of the offence charged.
    Pope, for appellant.
    On the 1st ground. — The cause of • action must accrue prior to the test of the process. 1 Oh. PI. 260. The judgment therefore should be arrested. 2d ground. —The license embraces the time when the retailing took place, and was a release or waiver by the City Council. City Council vs. Corlies, 2 Bail. 189.
    The XXV. section of the Ordinance of 1836 cannot affect the release. The waiver or release is the legal consequence of the license. Council is therefore estopped and cannot show a different intention. State vs. Banh of Charleston, Bank case, 512.
    
      Porter, contra,
    cited 7 Stat. 294; 11 Stat. 238; 2 Pur. 962; City Ord. 219.
    
      
      
        а) The process was lodged, the 20th May, 1856.
    
    
      
       The license was dated the 31st of July, 1856.
    
   Tbe opinion of tbe Court was delivered by

WhitNER, J.

Tbe recovery of tbe penalty under an ordinance of Council is resisted in tbis case on tbe ground, tbat tbe process issued before tbe offence was committed. Tbe commencement of tbe suit is alleged to have been at tbe date of tbe test of tbe process. In tbis particular there is no difference in form or effect between process issued from tbe City Court and tbe Court of Common Pleas in tbis State. Act of Assembly, 1842, 11 Stat. 248. Without recurring to previous legislation, since the Act of Assembly, 1825, (7 Stat. 330,) writs and process are issued from tbe Court of Sessions and Common Pleas, bearing test on any day previous to tbe day on which they are made returnable. If tbe ground taken was well founded, it would prove tbat more perhaps than half tbe process issued since 1825, and more than nine-ten tbs previously, when tbe test was from preceding term, would have been obnoxious to tbe objection, at least since tbe day in 2 Burr. 962; and perhaps for a century before: tbe test is regarded as mere matter of form and the commencement of tbe suit is dated from tbe lodgement of tbe process. In tbis instance we are informed, though not stated in tbe brief, tbe process was lodged in sheriff’s office, 20th May, 1856, and tbe offence was committed 4th May, 1856.

Tbe second ground rests upon an alleged release or waiver of tbe penalty by tbe license granted in July, 1856, covering tbe period which intervened from tbe 1st of April 1856, to 1st April next ensuing. Tbe ground is well taken under tbe authority of tbe case, City Council vs. Corlies, 2 Bail. 189 ; unless avoided by tbe ordinance of 1836, Sec. 25, (Oit. Ord. 224,) which has been adopted since tbe decision of tbe case •in Bailey.' By that ordinance it is provided “ that after any suit shall have been commenced for the penalty for selling without a license, no person shall be permitted to take out a license without paying such penalty, and should such license be’granted the penalty shall not thereby be remitted.” We think the cause presented is precisely as though this part of the ordinance had been incorporated in the license. We concur therefore with the Recorder in the view that the presumption of a release could not arise in the face of an express declaration to the contrary, and constituting a term of the contract itself and doubtless well understood by the defendant. The course of proceeding indicated by the form of such licenses, referring to a day passed, has many objections, at least in the judgment of some members of the Court. A further examination however is not now called for. The motion to set aside the verdict is dismissed.

WaRDLAW, Withers and Mustro, JJ., concurred.

Motion dismissed.  