Vanderhoof vs. Dean. of that tribunal anterior to the report of the arbitrators. The error of the county court can in no respect affect the validity of the judgment on the award. It was argued, that, as by the agreement of the parties to refer the cause to arbitration, the award to be made was to have "the effect of a verdict, and that judgment might be rendered on said award as upon a verdict," the obvious intention of the parties was to retain the cause in court, and that the plaintiff in error is therefore permitted to assign errors upon any part of the record. Admitting that the views of Chancellor Walworth are right, as expressed in the case of Wells v. Lain, I am clearly of the opinion that this part of the agree ment would, of itself, operate as a waiver of all errors up to the date of the submission. It would seem inconsistent with good faith that the defendant below should be permitted to allege irregularities in the proceedings in the cause, after he had consented to refer the cause to arbitration, and authorized the court to render judgment in case the award should be against him. I think such an act would operate as a waiver of all errors, and that the defendant is estopped from alleging any that may have crept into the proceedings previous to the date of the submission. It was also intimated that the agreement to arbitrate was not within the statute, inasmuch as the award was to be considered in the light of a verdict. We have had occasion to determine, at the present term, that unless a submission is within the statute, the summary mode of enforcing an award by a judgment would be unauthorized. I can not, however, regard this part of the stipulation as impairing the authority of the county court to enter judgment on the award. under our statute, *the award of the arbitrators may [467] be likened to a verdict of a jury. In the one case we have the judgment of three persons selected by the parties; in the other, the judgment of twelve persons selected in the manner provided by law. The judgment in the one case is called an award in the other a verdict; in both cases, however, the county court have the authority, unless upon good The People vs. Hart. cause shown, to render its judgment. The intention of the parties in introducing this clause in the agreement is perfectly obvious; it was, in the language of the stipulation, "that judg ment might be rendered on said award in said clause as upon a verdict." This was unnecessary; the statute gives express authority" to render judgment in favor of the party to whom any sum of money or damages shall have been awarded, that he recover the same." The court are, therefore, authorized to reject as immaterial this part of the agreement. It follows that the judgment of the circuit court must be affirmed. Judgment affirmed. PEOPLE VS. HART. The penalty given by R. S. ch. 41, sec. 1, for selling wine, brandy, rum or other spirituous liquor, without a license as tavern keeper or common victualler, may be recovered by indictment. NOTE.-If a legislature declares that a penalty shall be recoverable by an indictment, instead of in an action of debt. it is undoubtedly as compe tent and effectual in law as if it provides that a promissory note shall be sued by a bench warrant, i. e., it is competent for legislatures to use legal terms in such a manner as to attach to them new meanings. The legisla ture of Missouri, in passing a similar statute against the sale of liquors, provided that the penalty should be recovered by "bill, plaint or informa tion." The prosecuting attorney tried a bill of indictment and it was held not applicable; State v. Corwin, 4 Mo. 609. The supreme court of that state do not inform us whether he should have tried a bill in chancery, a bill of attainder or a bill of rights! The practice in proceeding by infor mation not having been provided for by statute in Missouri, and proceed. ing by bill of indictment having failed to prove adequate to the recovery of a penalty, there seemed no recourse but to file a "plaint" presumably in replevin! Whether the penalty or the liquor was to be replevied, is not made clear. As a rule, it would be said that where a statute creating an offense prescribes a penalty, an indictment will not lie. State v. Maze, 6 Humph. 17. But the practice of recovering penalties by indictment exists in Massachusetts, Taunton v. Sproat, 2 ray, 428, in which case it is held that the penalty, if recovered by indictment, goes to the commonwealth. whereas if recovered in debt it goes to the city or town. See also Tuttle #. Commonwealth, 2 Gray, 505. The People vs. Hart. CASE reserved from Macomb County Court. Hart was indicted and convicted in the county court for selling liquor contrary to the provisions of sec. 1, ch. 41, R. S. p. 184. He moved an arrest of judgment on the ground the penalty given by the act could not be recovered by indictment, and the question was reserved by the county judge for the opinion of this court. By the Court, MILES, J. To determine the question reserved, it is only necessary to look at the different provisions of the statutes relating to the subject. *The first section of chapter 41, R. S. p. 184, forbids [468*] any person being a common seller of spirituous liquors "on pain of forfeiting one hundred dollars." The thirty-first section provides for the recovery of all penalties and forfeitures prescribed in the chapter in an action of debt. By section 3, R. S. p. 560, jurisdiction is conferred upon justices of the peace of all actions for the recovery of penalties or forfeitures when the amount of the penalty or forfeiture shall not exceed one hundred dollars. Section 10 of the same chapter declares that in all cases where the penalty or forfeiture shall be one hundred dollars or more, it may be recovered by indictment in the proper court of the county. The county court has jurisdiction of all matters at law, civil and criminal, except in probate cases, actions of ejectment, and cases civil and criminal which are by law made cognizable before justices of the peace. Here, although a justice has jurisdiction in an action brought to recover the forfeiture, yet he cannot have jurisdiction of a proceeding by way of indictment to accomplish the same object. The law makes no provision for summoning an inquest or grand jury in a justice's court, and without such jury an indictment cannot be found. Hence such proceeding must necessarily be commenced and prosecuted in the county court, where alone a grand jury can be summoned. That part of the statute conferring power upon a justice of VOL. 1.37 577 Bidwell vs. Whitaker. the peace to entertain the civil suit, contains no words of exclusion against any other tribunal. The statute confers the same power upon any other proper court, to be exercised in a different form of proceeding. The county court is the proper court to proceed in the mode indicated by the statute. We think, then, it should be certified to the county court of Macomb county that the motion in arrest of judgment should be overruled. Certified accordingly. [469*] *BIDWELL et al. vs. WHITAKER et al. Ch. 122, R. S., of proceedings for the collection of demands against ships, boats and vessels applies to contracts made and injuries received within the state only, and not to such as have arisen without the state, and gives a specific lien on the boat or vessel for all such demands mentioned in the first section of the chapter. It is only where a statute is ambiguous in its terms, that courts exercise the power of so controlling its language as to give effect to what they may suppose to have been the intention of the law maker. NOTE. - Overruling Moses v. Steamboat Missouri, appendix, post, 507. Sec Turner v. Lewis, 2 Mich. 350; lien did not extend to means or money loaned or supplies furnished, but only to work done and materials furnished, Lawson v. Higgins, ante, 225; creditors failing to file demands within three months after publication, lost their lien; Watkins v. Atkinson, 2 Mich. (1 Gibbs) 151. - The act under which this decision was rendered, after being acted upon and enforced in at least seven cases in the supreme court, without its constitutionality being questioned, was held unconstitutional in Parsons v. Russell, 11 Mich. 113, on the ground that in providing that boats and vessels, unless bonded by the owner, might be sold prior to any adjudica tion on the merits of the claim on which they were seized, it virtually took away the owner's property without due process of law, since the owner, from absence or financial inability, though owing no claim, might still be unable to bond. For enactments adopted since this decision, see Laws of 1864, p. 107; Laws of 1865, p. 672. Under the Illinois and Wisconsin acts, defendant has his day in court, whether he bonds or not; so under amended Michigan acts. For a review of Federal decisions, rules and legislation concerning Admiralty jurisdiction over liens created by state laws, see note to 3 Mich. p. 1. -The jurisdiction of the United States courts in admiralty is not exclusive but is concurrent with that of the state courts in administering Bidwell vs. Whitaker. CASE reserved from Wayne County Court. Hale & Lothrop, for defendants. By the Court, WHIPPLE, C. J. This cause comes before the court upon questions reserved by the county judge of the county of Wayne. The facts upon which the questions of law arise are as follows: The steamboat Patchin was a boat owned and registered in Buffalo, at the time the plaintiff did certain work, and furnished materials for the repairing of said boat at the request of the owner or master, by whom the debt was contracted, which is now sought to be recovered. It further appears that the plaintiffs are ship carpenters, residing in Buffalo, where the work was done and the materials furnished. In 1848 the claim of the plaintiffs was exhibited before the county judge, who issued process, by virtue of which the boat the remedies given by the state laws; extends only to vessels of twenty tons burden and upwards, employed in navigation between ports in different states. Horn v. Schooner Trial, 22 Wis. 529; Thorsen v. Schooner J. B. Martin, 26 id. 488; state act giving lien applies only to lake vessels navi. gating from port to port, and not to small craft employed in a harbor, Scowboat v. Lynn, Bur. 78; Sultana . Chapman, 5 Wis. 454. Jurisdiction attaches to vessel navigating state waters, St. Galena v. Beals, 5 id. 91; exterds to damages for nonperformance of contracts, St. Sultana v. Chapman, 5 id. 454; must be begun within three months after cause of action occurred, Emerson v. St Shawano, 10 id. 433; no lien out of the state for transactions occurring out of the state, McRoberts v. Str. H. Clay, 17 id. 101; but remedy for injuries sustained out of the state may be enforced if there has been no transfer before seizure of property in the state, id. -- - Under the Illinois statute, the master as well as mariner is given a lien, 4 Gilm. 435; must be for supplies consumed in running the boat, Clark v. Smith, 14 Ill. 362; or for work done, materials furnished, or wages of mariners employed in the service of a “boat or vessel,” Kinsely v. Parker, 34 id. 482. The proceedings have no resemblance to libels in admiralty, but are of the same character as suits by attachment, requiring notice of pendency of suit, and not interfering with prior liens, Tug-boat Dorr v. Waldron, 62 id. 221; a prior mortgage, duly recorded, has prece dence of a lien of material men subsequently acquired, id. See also Great West No. 2 v. Obendorf, 57 Ill. 168; lien is acquired by the statute, and not by seizure under the warrant, id. |