Mertz's Case 8 Watts & Serg. 374

Mertz’s Case.

A person convicted in the Quarter Sessions of Philadelphia county for keeping a tippling-house, and sentenced to pay a fine of $50 and stand committed, is not entitled to be discharged at the end of one month without paying the fine.

THE prisoner, John T. Mertz, was brought up on habeas corpus. and Brightly moved for his discharge. The prisoner was convicted in the Quarter Sessions of Philadelphia county, on the 8th March 1845, on an indictment for keeping a tippling-house, and sentenced to pay a fine of $50 and costs, and stand committed until the sentence was complied with. The indictment charged that “ he sold and retailed less than one quart of rum, wine, brandy and other spirituous liquors, then and there delivered at one time and to one person and to more than one person, without having first obtained license agreeably to law for that purpose, contrary to the form of the Act of Assembly, &c.”

Brightly, for the relator,

contended that the conviction was under the Act of 27th January 1819, relating to the city and county of Philadelphia, by the 1st section of which the fine is fixed at $50, and the alternative is to pay the fine, or, if unable, to be commit ted for any time not exceeding one month. The prisoner wat *375unable to pay the fine, but had served out the month, and was therefore entitled to be discharged.

J. A. Phillips, contra.

The Act of 1819 is virtually repealed by the general Act on the subject passed the 11th March 1834, and it was under this Act the sentence was passed. The 25th section provides that if any person shall sell less than one quart of spirituous or vinous liquors, to be delivered at one time to one or more persons, without having first obtained a license agreeably to law for that purpose, such person shall be liable to indictment, and on conviction thereof shall forfeit and pay for every such offence a sum not exceeding $100. He must therefore stand committed till his fine is paid. If unable to pay it, provision is made by the 47th section of the Insolvent Act of 16th June 1836 for his discharge after being confined three months. The Act of 1819 is repealed by the intermediate Act of 7th April 1830, the provisions of whose 9th section correspond with those of the Act of 1834.