Fitch v. Miller

By the court,

Savage, Ch. J.

Miller sued Fitch before a justice for the penalty imposed by the 22d section of the act for the support of common schools, Laws of 1819, p. 200, for neglecting the performance of the duties of the office of trustee of a school district. That part of the section which is pertinent, first imposes a penalty of five dollars for a refusal to serve, to be recovered by the commissioners, or in the name of any other person; and when recovered, to be paid to the commissioners, for the use of the common schools. Then follows this clause: “And every person who, being duly chosen or appointed as aforesaid to serve in any such office, and having accepted thereof, or not declared his refusal to accept, shall neglect the performance of the duties of such office, shall forfeit and pay the sum of ten dollars, to be recovered with costs of suit in the maimer aforesaid, and for the use aforesaid.” The plaintiff in error, the defendant below, insists that if his plea be bad (and he does not attempt to sustain it,) yet he must have judgment of reversal, because the declaration is insufficient. The only question then is, is the declaration good upon general demurrer ? The act of 1824, which gives the remedy by appeal, Laws of 1824, p. 296; § 38, declares that the pleadings in the common pleas shall be the same which were had before the justice ; that they shall be liberally construed, without regard to established forms or technical rules of pleading, and with a view to substantial justice between the parties ; that is, it shall be sufficient if they answer the substantial purposes of pleading, and apprise the opposite party of the real grounds of action or defence, so that there shall be no surprise—no misapprehension as to what each parís to meet in evidence. Testing the declaration by this rule it is undoubtedly good. The cause of complaintisnotany particular omission of duty, for which a particular penalty is imposed, but a general neglect of the duties of the office. This statute received a construction in Spafford v. Hood, 6 Cowen, 478, where it was considered that the object of the clause in question was to compel a bona fide acceptance of the office, and an attention to the duties generally, and to prevent a nominal acceptance, and thus evade the penalty of five dollars, imposed for a refusal to serve. This view of the statute obviates the necessity of greater particularity in the declaration. The defendant below was sufficiently aware of what he was to meet, or he would have demurred specially. He made no objection to the declaration, but put in a sham plea, which he does not now endeavor, to sustain. Being of opinion that the declaration is good on general demurrer, the judgment of the common pleas must be affirmed.

Judgment affirmed.