Dissenting Opinion.
Comstock, P. J.Action brought by appellant against appellees on a bond given by appellees Mann, as principal, and the Terre ITaute Brewing Company and Maurice Donnelly, as sureties, under the statutes authorizing the sale of intoxicating liquors.
Separate and joint demurrers for want of facts were sustained to the complaint, and judgment was rendered thereon against appellant for costs. The-action of the court is assigned as error.
The complaint alleges that the relatrix is the wife of Stephen C. Dark; that for the past eight or ten months he has been and is now an habitual drunkard; that said Mann *128has been since April 29, 1901, the proprietor of a saloon at which her husband lias been a constant visitor and patron; that said relatrix informed said Mann that she was the wife of said Dark, who said Mann well knew, and notified said Mann, as well as his barkeepers and other persons in charge of his said bar, not to sell or give, directly or indirectly, to her said husband any more whisky or other intoxicating liquors; that she requested said defendant Mann to say whether relatrix should put in writing her notice not to sell her husband any more liquor; that then and there defendant Mann informed said relatrix that she need not go to the trouble of putting in writing her notice not to sell her husband any more intoxicating liquor of any kind; that the parol notice would be all that he would require, and said relatrix thereupon, again by parol, notified said Mann never again to sell or give, directly or indirectly, to relatrix’s husband any more intoxicating liquor of any kind; that said Mann then and there informed said relatrix that said Stephen C. Dark, the relatrix’s said husband, should not have another drink or drop of any intoxicating liquor in his place; that said defendant Mann at all times since said relatrix and her husband lived in said neighborhood knew that said Stephen C. Dark was an habitual drunkard; that, notwithstanding said notice, and said defendant Mann’s promise that Dark should not have any more liquor of any kind at said Mann’s place, said defendant Mann has continued, from the time of said notice down to the bringing of this suit, deliberately to sell and give, by himself, his barkeepers and another person by the name of Escott, who is interested in some way in said saloon, to said Dark all the intoxicating liquor he desired, and as a result said Dark had been continuously beastly drunk, and by reason of the violation of said notice, as aforesaid, said relatrix has suffered great loss in money, etc.
The complaint seeks to recover upon the bond of appellee Mann for the sale of liquor to relatrix’s husband, who was a *129person in the habit of becoming intoxicated. Two sections of the statute upon which the action is based are as follows: “Whoever, directly or indirectly, sells, barters or gives away any spirituous, vinous, malt or other intoxicating liquor to any person who is in the habit of becoming intoxicated, after notice shall have been given to him, in writing, by any citizen of the township or ward wherein such person resides, that such person is in the habit of becoming intoxicated,” etc. §2485 Burns 1908, Acts 1905, pp. 584, 720, §574. “Every person who shall sell, barter, or give away any intoxicating liquors, in violation of any of the provisions of this act, shall be pérsonally liable, and also liable on his bond filed in the auditor’s office.” §8355 Burns 1908, §5323 R. S. 1881.
The offense, under this section of the statute, is the sale, after notice in writing, to a person in the habit of becoming intoxicated. The complaint affirmatively states that the written notice was not given. The offense defined is not the selling to a person in the habit of becoming intoxicated, but in selling to such person after notice has been given in writing of such habit. Geraghty v. State (1887), 110 Ind. 103; State v. Smith (1890), 122 Ind. 178. The theory upon which the complaint is based is clear beyond question. It expressly avers that “by reason of the violation of said notice as aforesaid relatrix has suffered great loss in money,” etc.
A party cannot seek relief on one theory by the pleadings, and then ask to have relief given on another. It is the settled rule of pleading and practice in this State that a complaint must proceed upon some definite theory, and that it must be good on the theory adopted. This rule has recently been emphasized in Oölitic Stone Co. v. Ridge (1908), 169 Ind. 639, in which case appellee insisted that the amended complaint, which was in one paragraph, stated a good cause of action at common law, as well as under the employers’ liability act, in favor of appellee against appellant, and that *130therefore the cause should not be reversed even if said act was unconstitutional as applied to appellant. But the Supreme Court reversed the judgment, for the reason that the complaint was not sufficient upon the theoiy upon which it was framed, and in support of the ruling made the following, among other, citations: Elliott, App. Proc., §655, and cases cited; Ewbank’s Manual, §288; Dyer v. Woods (1906), 166 Ind. 44, 51, 52; Carmel Nat. Gas, etc., Co. v. Small (1898), 150 Ind. 427, 431; Terre Haute, etc., R. Co. v. McCorkle (1895), 140 Ind. 613, 622, 623, and cases cited; Copeland v. Summers (1894), 138 Ind. 219, 226; Aetna Powder Co. v. Hildebrand (1894), 137 Ind. 462, 473, 45 Am. St. 194; Balue v. Taylor (1894), 136 Ind. 368, 373; Comegys v. Emerick (1893), 134 Ind. 148, 152, 153, 39 Am. St. 245; Pearson v. Pearson (1890), 125 Ind. 341, 344; Feder v. Field (1889), 117 Ind. 386, 391; Manifold v. Jones (1889), 117 Ind. 212, 217; Gregory v. Cleveland, etc., R. Co. (1887), 112 Ind. 385; Louisville, etc., R. Co. v. Godman (1885), 104 Ind. 490, 494; Chicago, etc., R. Co. v. Bills (1885), 104 Ind. 13, 16; Leeds v. City of Richmond (1885), 102 Ind. 372, 384; Bremmerman v. Jennings (1885), 101 Ind. 253, 256, 257; Sims v. Smith (1885), 99 Ind. 469, 477, 50 Am. Rep. 99; Cottrell v. Aetna Life Ins. Co. (1884), 97 Ind. 311, 313; Western Union Tel. Co. v. Reed (1884), 96 Ind. 195, 198, and cases cited; Western Union Tel. Co. v. Young (1884), 93 Ind. 118, 119, and cases cited; Union Mul. Life Ins. Co. v. Adler (1906), 38 Ind. App. 530, 536; Rietman v. Bangert (1901), 26 Ind. App. 468, 471; Tibbet v. Zurbuch (1899), 22 Ind. App. 354, 361, 362; Cleveland, etc., R. Co. v. Dugan (1898), 18 Ind. App. 435, 438, and cases cited; Sanders v. Hartge (1897), 37 Ind. App. 243, 250-252; Miller v. Miller (1897), 17 Ind. App. 605-608; Callaway v. Mellett (1896), 15 Ind. App. 366, 367-369, 57 Am. St. 238; Cleveland, etc., R. Co. v. DeBolt (1894), 10 Ind. App. 174, 176.
It is possible that the “theory” rule has, in some cases, *131been refined beyond accuracy and that it should be modified, but this court is without authority in that behalf. If it is to be relaxed, it would seem, inasmuch as sureties are favorites of the law, that they should not be made the first victims of the change.
The complaint does not show a violation of the section in cpiestion which could affect appellee Mann’s bondsmen. The notice in writing specified is, in a large measure, intended for the benefit of the party charged with the sale of intoxicating liquor. This requirement may be waived by the principal for himself, but not for his bondsmen.
It is the opinion of the writer that the judgment should be affirmed as to appellees the Terre Haute Brewing Company and Maurice Donnelly, and reversed as to appellee Mann.