MCGUIRE

v.

THE COMMONWEALTH

The CHIEF JUSTICE delivered the opinion of the court.

I. The first motion now made is, that in case the court shall be satisfied that it has jurisdiction of the case in the record, a writ of certiorari be sent to the Superior Court of Massachusetts, or to the Supreme Judicial Court of Massachusetts, to bring up the complete record; it being suggested that the record before us does not show the rescript of the latter court, supposed to contain its judgment in the case, sent down for execution to the former court.

It is quite clear that the record contains a case within tbe 25th section of the Judiciary Act of 1789, and, therefore, a case of which this court has jurisdiction. The plaintiff in error was indicted in the State court for selling intoxicating liquors contrary to the statutes of Massachusetts. He set up as a defence that he had received a license from the United States, which, under the true construction of the internal revenue act, authorized him to carry on the business of a wholesale dealer in liquors, and, therefore, had a right to sell liquor as charged, notwithstanding the statutes of Massachusetts to the contrary. The decision of the court was against the right claimed under the internal revenue act, and this made the precise case of which the Judiciary Act gives jurisdiction to this court. The cause, therefore, cannot be dismissed for want of jurisdiction.

Nor do we perceive sufficient reason for awarding a writ of certiorari to bring up a more perfect record. It appears from the record before us that after verdict, and before judgment in the Superior Court, certain exceptions were sent up to the Supreme Judicial Court for its opinion, and that a re-script was subsequently sent down, overruling them, whereupon final judgment was entered upon the verdict. This, we understand, was according to the law and practice in Massachusetts, and the effect was to leave the entire record in the Superior Court.

If this were a case where the Supreme Judicial Court had rendered the final judgment, and had sent the judgment to the Superior Court for execution, and, with the judgment, the record, the direction of the writ of error of this court to the latter court would have been proper. This was settled in the case of Gelston v. Hoyt,

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with which we are entirely satisfied.

But it is not necessary now to invoke the authority of that case. The judgment was not rendered in the Supreme Judicial Court, but in the Superior Court. That judgment was the final decision of the cause in which it was rendered, according to the true sense of the Judiciary Act, and the Superior Court was the highest court of the State in which a decision of the suit could be had, and, therefore, the only court to which the writ of error for this court could have been addressed.

We are not concerned here with the rulings of the Supreme Judicial Court upon the exceptions certified to it. The record shows clearly and fully the whole case upon which we are to pass, and the omission to set forth in it those exceptions and the rulings before them is no deficiency which needs to be supplied by certiorari.

The first motion must, therefore, be overruled.

II. The second motion is for leave to discontinue the writ of error at the cost of the plaintiff in error. [See the next case. — Rep.]

It is not the practice of this court to allow a discontinuance to any case, except for sufficient reason assigned, or by consent of the adverse party. In the case before us the attorney-general of Massachusetts resists the motion. The only reasons assigned in support of it are the alleged inability of the leading counsel for the plaintiff in error to make proper preparation for argument within the time allowed, and the sickness of one of his associate counsel. Our opinion of the learning and ability of the counsel who submits the motion obliges us to think that he has underrated his power and overrated his need of preparation to set before us the case of his client in all the strength of which it is capable, notwithstanding the absence of his associate, whose indisposition to us, as to him, causes sincere regret.

The second motion, therefore, must be, also, overruled.

III. The third motion is for leave to withdraw the appearance of all the counsel, and to have the plaintiff called under the 16th rule.

It is usual in this court to grant leave to withdraw an appearance whenever asked, saving, however, all the rights of the adverse party. That leave will, therefore, be granted in this case. We cannot, however, require the calling of the plaintiff with a view to the dismissal of the writ of error. After the withdrawal of the appearance in the case before us it will be the right of the defendant in error, under the 16th rule, to have the plaintiff called and the suit dismissed, or to open the record and pray an affirmance.

Motions denied.

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3 Wheaton, 246.