Austin vs. Grant.

upon which the mortgage as a security can be sustained, or to authorize its foreclosure.

It is said in reply, that it is unnecessary to prove the indebtedness; that it is enough to prove the execution of the mortgage, or, which is the same thing, that its execution when admitted, is sufficient. This proposition is not sustained by the case referred to in 2 Sand. 364. The point decided in that case was that the allegation of indebtedness was immaterial and need not be proved, but that the complainant would be entitled to a decree on the statement of the execution of the bond and mortgage; the same having been proved, as appears by the case.

If the judgments, when the mortgage was executed, had been valid, affording the evidence of an existing indebtedness, the admission of the defendants that the mortgage was made to secure their payment, connected with the subsequent admission responsive to another allegation in the bill that the mortgage was executed after the confession of the judgments mentioned and set forth in the bill, would be enough to authorize a decree. Such a case would be analogous to the one just referred to. Nor does the proposition of counsel derive any support from the case referred to in 2 Sand. 630. It was decided in that case, that where a mortgage was executed, as appeared by its own terms, to secure sundry liabilities incurred for the accommodation of the mortgagor, and it recited the execution of his bond of the same date and tenor with

the mortgage, but no such bond was ever delivered, [493*] that the *mortgage was nevertheless valid. The vice

chancellor, upon this point, said: "It is next objected that, as the bond recited in the mortgage was never delivered to Berrien, the mortgage was not valid in its inception, and never had a legal existence. That there is no mortgage debt to sustain the mortgage. The testimony shows that there never was any bond executed. The recital in the mortgage mentioning a contemporaneous bond of the same date and tenor, is. therefore, erroneous. The mortgage was neverthe

Austin vs. Grant.

less delivered, and it aimed to secure liabilities which were in no manner dependent upon the bond recited, or upon any bond."

So that in this case the mortgage having been given to secure the mortgagee against certain liabilities which he had incurred on behalf of the mortgagor, there was something to sustain it, and for which, as a security, the mortgagee had a right to the mortgage.

Suppose the bill of complainant had omitted the preliminary statement of indebtedness, and this it might have done, as such statement is an immaterial one, and had averred, that on the 25th day of April, 1840, the defendant Grant confessed before a justice the judgments, setting them out, as is done in the present bill; that Grant afterwards executed and delivered the mortgage to secure the payment of the judgments, could it be said, the judgments being void, that the mortgage could be of any effect as a security? I think not; and yet this is the very case presented here by the pleadings. The judgments being void, they afforded no evidence of indebtedness; there was nothing due upon them; there was no money to be paid according to their condition, as it is expressed in the condition of the mortgage deed, and there was no indebtedness, for the nonpayment of which the mortgage could be foreclosed.

The decree of the court of chancery must be reversed, and a decree entered in this court that the complainant's bill be dismissed with costs.

Decree reversed, and bill dismissed with costs.

VOL. I. - 39

609

Where, in declaring for a penalty given by ch. 41, R. S., for selling spirituous liquor without a license, the plaintiff adopts the form of declaration given by sec. 32, he cannot be required, on the trial, to elect the penalty or penalties he seeks to recover.1

Where S. and M. are engaged as partners in keeping a recess, and selling

NOTE. The right of the defendant to require the prosecutor to elect upon which of several counts he will proceed applies to indictments only, and to those only in which the matters charged in the distinct counts neither justify independent convictions, nor are the different modes of stating the same offense, but where the pleader makes the same criminal acts a ground for charging the defendant with distinct criminal offenses, so as in effect to lay the basis for punishing him twice for the same act. But if one count charge defendant as accessory before, and another after the fact, the prosecutor can not be compelled to elect, since the defendant may be guilty of both. See Whart. Am. Crim. Law, §§ 423 and 423 and notes and cases there cited; see also Elam v. State, 26 Ala. 48; Hughes v. State, 35 id.

851.

Smith vs. Village of Adrian.

liquor without a license, the selling of liquor by M. is the act of both, and may be given in evidence against S., in an action against him alone for the penalty.?

To recover the penalty given by sec. 1, ch. 41, R. S., for selling liquor without a license, it is not necessary for plaintiff to show, defendant assumed to act as tavern keeper or common victualer.

In a suit by a corporation, created under the laws of the state, it need not prove its corporate existence under the general issue, unless defendant has given notice, with his plea, that plaintiff is not a corporation. R. S., ch. 116, sec. 6. It is otherwise at common law.

The charter and by-laws of municipal corporations are subject to general legislation.

In an action for the penalty given by statute for selling liquor without a license, plaintiff need not prove defendant had no license, which will be taken to be true, unless disproved by defendant. Neither will the

2 State v. Neal, 27 N. H. (7 Fost.),131; Whitton v. State, 37 Miss. 379. - Upon the question whether the state should aver and prove the want of license, or whether the defendant should aver and prove his license: the principles stated in the text books might furnish a basis for opposing ar gument, but the decisions are nearly unanimous. The text books lay down three rules bearing on the point, one of which is cited by Judge Wing in the above opinion, viz.: that when the subject matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party, and he cites Judge Greenleaf's application of the rule to a criminal prosecution for selling liquors or exercising a trade without a license, which is sustained by nearly every state in the Union. But in the next section, Greenleaf says, that where the negative allegation involves a charge of criminal neglect of duty ** the party making the charge must prove it. And generally it would seem that where the negative averment constitutes the essence of the guilt of the defendant, the presumption of innocence which is made in behalf of every person accused of a criminal or penal act, requires that the prosecutor should prove the negative averment. It may be doubted whether the fact of the existence of a license can judicially be said to be peculiarly within the knowledge of the defendant, any more than the existence of a lease is, as between the landlord and tenant peculiarly within the knowledge of a tenant. The people or the municipal corporation which prosecutes in these cases is either absolutely or essentially identical with the party is. suing the license. The issuance of the license is usually required to be made matter of record. The existence of the license or otherwise, is as capable of proof by the officers who issue it, and by their records, as by the man who holds it. The cases in which a license may be said to be peculiarly within the knowledge of the party holding it are, in strictness, confined to those in which the license was not issued by the party against whom it is pleaded. Where it is issued by the plaintiff and held by the