
    City Council of Charleston v. Peter Corleis.
    ipjie gran{ 0f a license to retail spirituous liquors from a day past, is a release of the penalties for retailing without license subsequent to that day, although prior to the taking out of the license.
    Where formal evidence of a fact was not required at the trial, but the case was argued and determined on other grounds ; if the verdict is erroneous on those grounds, a new trial will be granted, although the verdict might be sustained on the ground, that such evidence was not produced.
    Tried before the Recorder, in the City Court of Charleston, at April Term, 1830.
    Summary process to recover the penalty of one hundred dollars, for retailing spirituous liquors without license, contrary to the city ordinances. A retailing oil the 30th December, 1829, was distinctly proved, On the part of the defendant it appeared, that he had paid for, and taken out a license regularly every year, for the last five years; that in October, 1829, he had applied as usual for leave to take out a license ; and that his application had been granted by the City Council. lie then adduced the receipt of the city treasurer, dated 4th January, 1830, for sixty dollars, for a license to retail for one year from October, 1829. The license itself was not produced. It further appeared, that defendant had been notified by the City Police to pay for and take out his license; that disregarding this warning, he had been watched and detected; but that as soon as he was apprized that information had been lodged, he had called upon the city treasurer, and paid for his license. It appeared also, that defendant had applied to Council for relief, and it had been granted, on condition that he would pay the marshal’s share of the penalty, and the costs; but with these conditions defendant had never complied.
    His Honor, the Recorder, charged the jury, that neither the receipt of the treasurer, nor the resolution of Council, could be regarded as a release of the action. The latter was on a condition precedent, with which defendant did not choose to comply, and of course he had waived the privilege granted. The former was merely evidence of the payment of the price of a license after the penalty had been incurred, and manifestly with a view of evading it. It had become a common practice to apply for a license, but to omit taking it out, and to speculate upon the chance of escaping detection. If not detected, the payment of the price of. a license was avoided ; and if a license, taken out after detection, were permitted to be a defence against the penalty, a temptation was held out always to omit paying until detected. The practice was alike injurious to the revenue of the City, and the interests of the fair licensed retailer, and ought to be repressed. In the present case, as the defendant had no license, when the retailing took place, he was liable to the penalty.
    The jury found accordingly for the plaintiff; and the defendant now moved to set aside their verdict, and for a new trial, on the ground of misdirection.
    J. D. Yates, for the motion.
    The question is whether the City Council are intitled to the price of the license, and the penalty for not having one, in addition to the price. On no principle of law or justice, can they be intitled to both. They were intitled to elect between them ; but they have made their election by their officer the treasurer, and are concluded by it. ■
    The defendant did not merit the remarks of the Recorder. Whatever may be the practice of other retailers, he at least was proved to have always paid for a license regularly: And if under the pressure of the times, he was induced to postpone as long as he could, the evil day of payment of a heavy tax, there was surely nothing very censurable in it, in the absence of all proof, that he intended not to pay at all. Besides, he was led into his neglect by Council: Under the ordinance of 1815, which in this respect had pot been altered by the ordinance of 1824, licenses are not delivered when they are first applied for ; the application must be considered ; and after it has been granted, the practice has always been, to permit the license to be paid for and taken out, at any time within one or two months after the day, from which it bears date. The defendant, then, has been guilty of no crying enormity, in extending the period of his own indulgence to three months ; and his promptness in paying the treasurer, as soon as he learned that he was in danger, assuredly furnishes no reason for depriving him of the advantage which that payment gave him.
    Be that as it may, he has gained the advantage; and now he stands upon his rights. The resolution of Council released the penalty, and it may well be questioned, whether they could reserve conditions, repugnant to the release, and especially for the benefit of third persons. The receipt of the treasurer, however, is conclusive : It acknowledges receipt of sixty dollars for alicense to retail from October, 1829, to October, 1830, and is a bar to an action for any penalty accruing within those periods; The maxim, omnis ratihabitio retrotrahitur at mandato mquiparatar, applies to the release of damages and penalties, as well as to the confirmation of the acts of agents. Co. Lilt. 207, a. 352. a. Com. Dig. Estoppel. A. 3. The good sense of the rule is, that no one, after assenting to an act, and deriving a benefit from it, shall be permitted to impeach it. Per Duller J. in Rex v. Stacey, 1 T. R. 4.
    Axson, City Attorney, contra.
    
    The defendant produced no license at the trial, and the argument as to its retrospective effect, does not apply. The retailing having been proved, the defendant was bound ,to produce a license ; State v. Geuing, 1 M’C. 573. not doing- so, the jury could do no otherwise than find for the plaintiff. The production of the license is insisted on, for the reason, that it may well be doubted whether one exists, and whethér the receipt of the treasurer, or rather of the treasurer’s clerk, was not conditional, and subject to the approbation of Council. It is the practice to refuse a license, if not called for within two months at farthest, and particularly after an information lodged for retailing without á license ; and it is not to be presumed that the treasurer has deviated from the practice.
    If, however, a license was actually issued, the reasoning of the Recorder is conclusive in support of the verdict.
    Yeadon, in reply.
    The ordinance of 1824, provides, that Council may grant licenses at any time, and declares expressly, that they shall relate back to the regular semi-annual periods of April and October. As to the non production of the license : it was not higher evidence than the receipt; but at all events, the objection comes too late now. The Recorder in his charge took for granted the fact, that a license had been obtained. Had it been required, it could have been produced ; and if the case turns on that point, the verdict is a surprise upon the defendant, and a new trial should be awarded on that ground.
   Harper J.

delivered the opinion of the Court.

' There is no doubt, but that the defendant committed a violation of the City ordinance, in retailing spirits, not then having a license. But it seems to us that the City Council must be regal’d-ed as having waived, or released their right of action for the penalty, as it was competent for them to do. We understand from the ordinance of 1815, and from the testimony, that it is the practice to receive applications for licenses at two periods of the year, in October and April; that the applications are then granted or refused, and that the licenses are afterwards paid for and taken out. The defendant was one of the applicants, to whom a license was granted in October. 1829, but it was not paid for taken out by him until after the retailing proved. On the 4th of January, 1830, he did pay for and receive his license, and we understand the form of it to have been as of the preceding October. The receipt of the city treasurer specifies the license to be for October Term, 1829. The effect is that on the 4th of January, 1830, the City Council licenses the defendant to retail from October, 1829. This, it seems to me, must operate as a release of the offence against the ordinance. If A. has committed various trespasses on the close of B. and B. afterwards conveys the close to A. or gives him a license to enter at pleasure, to take effect as of a period antecedent to the first trespass, this can only mean a release of the several trespasses. This view is confirmed by what we understand to be the practice under the ordinance. After the orders for granting licenses in October, the retailers go on to sell, and in the course of one or two months pay for and receive their licenses, and it is not doubted, but that the license when received, has relation back to October, and erases intermediate offences. If this be the effect of a license, issued in December, I cannot perceive what should make the difference with respect to one issued in January. If the ordinance is evaded, and abuses introduced by this practice, the remedy is in the hands of Council, by withholding the license, after they are aware that an offence has been committed. It would be unreasonable that they should exact the penalty, and yet receive the price of the license for the period, within which the offence was committed. The license in question was not produced on the trial, but the secondary evidence offered to show that it had been issued, was not objected to. The Recorder in his charge seems to have taken for granted that it had in fact been issued, and so did the Counsel in argument. If required, however, it must certainly be produced on the new trial. The motion for a new trial is granted.  