
    The Town Council of Aiken vs. John A. Harbers.
    
    A bond from a retailer, taken by the Town Council of Aiken payable to themselves, in the penalty of $1000, conditioned to observe all the laws in relation to retailing spirituous liquors, held, to have been taken under the Act of 1835, (6 Sfcat. 528,) and not to be enforceable against the retailer, who, .though he had been convicted for selling spirits to a slave, had paid the fine imposed.
    
      Before Frost, J., at Barnwell, July, Extra Term, 1852.
    The report of his Honor, the presiding Judge, is as follows :
    “ This was an action of debt on bond, in the penal sum of $1000, dated the 7th April, 1849, conditioned for the observance of all the laws in force in regard to the retailing of spirituous liquors. .The defendant craving oyer and setting out the condition of the bond, pleaded performance. The plaintiff replied, and set out, as a breach, that the defendant did not abide by and observe the laws in force in regard to retailing spirituous liquors; for that, on the 21st December, 1849, the defendant sold spirits to Jess, the slave, &c., and for the said offence was convicted, at Spring Term of the Court of Sessions, at Barnwell, by reason whereof the bond became forfeited. The defendant, protesting the said offence, says he was sentenced to pay a fine of $ 100, and paid it, &c. To this the plaintiffs surrejoined, that the defendant did not pay and account for the said sum of one thousand dollars to the plaintiffs, as stipulated by his bond; which the defendant had thereby forfeited to.the plaintiffs.
    “ The state of pleadings presenting some embarrassment to the parties respecting the real issue, and on questions of evidence, it was agreed between them that all errors in pleading-should be waived, and the case adjudged on the question of the liability of the defendant, under the condition of his bond to pay the plaintiffs the fine of $>100, which, on his conviction, he had been sentenced to pay; and had paid the Commissioners of public buildings.
    “By the Act of 1835, (6 Stat. 528,) it is provided, that it shall not be lawful for any corporate body, or the Commissioners of the roads, to grant any license to retail spirituous liquors, unless the applicant for such license shall, first, enter into recognizance with two substantial freeholders, as sureties, in the penalty of $1000, conditioned for the observance of all the laws in force in regard to retailing' spirituous liquors ; and the recognizance so given, shall be liable to be estreated for all fines imposed by the Court, for any violation of the said laws of which the party shall be convicted by indictment. (So. Ca. Road Laws, p. 35.) In 1836 the Village of Aiken was incorporated, and the Town Council empowered to grant licenses.
    “ It did not appear whether the bond in suit had been taken by the plaintiffs in the execution of their power to grant licenses, or whether it had been taken in addition to the recognizance required by law. Since the plaintiffs, in taking the bond payable to themselves instead of a recognizance, did not comply with the Act of 1835, and since it was to be presumed they had not granted a license to Harbers to retail spirituous liquors without requiring from him a recognizance, as directed by the Act; it was assumed, in the decision of the case, that the plaintiffs had taken the bond in suit for the corporate benefit, and, in compliance with the law, had taken the recognizance also.
    
      u It was held that the Town Council of Aiken had no other or greater authority in the granting of licenses, than the Commissioners of roads. That the requirement of such a bond operated as a restraint on trade, and the liberty of the citizen, which the Town Council had no power to impose, and that the bond created no legal obligation. It could not be supported as taken for the enforcement of police in the town, (even if for that purpose it might have been valid,) for the condition of the bond had no reference to any police regulations. The bond was conditioned to observe the laws in force in" regard to retailing spirituous liquors. The violation of these laws was a public offence, operating no special damage • to the Town Council of Aiken. The fine imposed for such violation had been paid conformably to law. The claim of the Town Council would, in effect, impose two fines for the same offence. The (Town Council having no authority to demand and take the bond in suit, it was held to be illegal and void. The plaintiffs took a non-suit.”
    The plaintiffs appealed, and now moved that the non-suit be set aside, on the ground that the Town Council of Aiken had the right to take the bond on which action was brought, and that said bond was not contrary to law, in restraint of trade, or the liberty of the citizen, but was a good and valid bond.
    
      A. P. Aldrich, for the motion,
    cited Jac. L. D. Franchise; 4 Bl. Com. 162; 6 Stát. 530; 8 Stat. 449 § 9; Wile, on Corp. 17; Chit, on Con. 664, note; 3 Des. 57.
    
      Bauskett, contra.
    
      
      
         The following is a copy of the bond:
      “STATE OE SOUTH-CAaOLINA, BAOTBLL DISTRICT — 'TOWN OE AIKEH.
      “Know all men by these presents, that we, John A. Harbers, William Buckhalter, and William Thomas Jones, are held and firmly bound unto the Town Council of Aiken, in the just and full sum of One Thousand Dollars, to be paid to the said Town Council or their successors in office, to which payment well and truly to be made and done, we bind ourselves, our heirs, executors and administrators, jointly, severally and firmly, by these presents, sealed with our seals, and dated the 7th day of April, .one thousand eight hundred and forty-nine. The condition of the above obligation is such, that if the, above bound John A. Harbers shall, and do well and truly and in every respect, conform to and abide by the laws now in force in this State, and which shall be enacted and be of force in this State during the space of twelve months from the date hereof,' respecting taverns or retailers of spirituous liquors, and shall maintain and keep good order, and will and shall suffer no disorder or unlawful games to bo used in his house, nor out-house, yard or garden, thereunto belonging, during twelve months from this date, then this obligation to be null and void, otherwise to remain in full force and virtue. Signed, sealed and delivered in presence of
      “W. W. HUTTON.
      JOHN A. HARBERS, [l. s.]
      WILLIAM BUCKHALTER, [l. s.]
      WILLIAM THOMAS JONES, [l. e.]»
    
   The opinion of the Court was delivered by

Whitner, J.

The state of pleadings in this case, though alluded to by the presiding Judge in his report, it is agreed, does not now enter into consideration. The single question raised and to be adjudged is, as to defendant’s liability for the penalty of his bond on the case made. The facts, as well as the statutes bearing thereon, and a copy of the bond, all appear in the report.

The defendant was an applicant for a license to retail spirituous liquors within the corporate limits of the town of Aiken, which alone the Town Council had the power to grant.

The reading of the bond and the statute of 1835, (6 Stat. 528,) will at once satisfy most minds, that this obligation was intended a's a compliance with the’ requisition of the Act, which provides, that it shall not be lawful for any corporate body” “ to grant a license to retail, unless the applicant first enter into recognizance,” &c. The more especially when taken in connexion with the fact, that no recognizance, or' obligation, other than this, is brought in view, nor any ordinance authorizing or requiring such a proceeding, although the Circuit Judge, as most favorable to the plaintiffs in thé decision of the case against them, acquiesced in the assumption that a bond and recognizance had each been taken.

Notwithstanding the want of conformity between the paper and the recognizance under the statute, it is insisted, that analagous cases adjudged well warrant the substitution, at least so far as to secure the remedy. But if this is conceded, the question is still, what then is the extent of the defendant’s liability ? The terms of the statute are plain and specific. Such recognizance is liable to be estreated for all fines imposed by the Court for any violation of. the said laws of which the party shall be convicted by indictment. This then is to be the judgment on such recognizance, and when it is shown that although convicted of a violation of law and a fine was imposed, yet that the same has been paid, the recognizance for that offence is thereby satisfied, and the liability to estreat no longer exists therefor.

But if this was a bond for the corporate benefit, without inquiring as to the powers of corporate bodies to impose other-terms than those provided by the Legislature — whether the plan of granting licenses devised by the Legislature be exclusive of other restrictions, or whether the corporation may superadd other-duties and penalties, either as a police regulation or otherwise— for the present it is sufficient that here has been brought to view no ordinance of Council on the subject, and hence nothing is found as emanating from either of' the law-making powers invoked in aid of this action, on which to base this proceeding.

The motion to set aside the non-suit on Circuit, is refused.

O’Neall, Wardlaw, Frost, Withers and Evans, JJ., concurred.

Motion refused.  