Hall v. McKechnie

By the Court, T. R. Strong, J.

The complaint purports to contain-four several counts, or to state four distinct causes of action, separately. In the first count it is averred that the defendants are indebted to the plaintiffs as overseers of the poor in twenty-five dollars, whereby an action has accrued to them as such overseers, according to the statute, specifying the title and two of the sections, which sections impose a penalty of twenty-five dollars for selling strong or spirituous liquors or wines, in small quantities without a license, to be recovered by an action in the name of the overseers of the poor. Each of the subsequent counts states a further indebtedness in a like sum, and is otherwise in form similar to the first. No one could fail to understand from the complaint that it was intended to state separately four several violations of the section first named, and to seek to recover four penalties. There is no particular mode by which counts or causes of action are to be separated and distinguished from each other in a complaint in a justice’s court. Any mode which apprises the defendant of what is intended is sufficient. {Code, § 64, sub. 5.)

A motion was made before the justice, on the complaint being presented, that the last three counts be stricken out, which was properly denied; beyond this, no objection whatever was taken to the complaint. If it had been demurred to as not sufficiently explicit to enable the defendants to understand it, or that it did not contain a cause of action, it would have been the duty of the justice, if he deemed the objection well founded, to order the pleading to be amended. {Code, § 64, subs. 6, 7.) The defendants, if they designed to raise these objections, should have presented them by demurrer; the objection of indefiniteness and uncertainty is waived by not thus making it; and I think it is the same in respect to the objection that a cause of action is not stated. If the parties go to trial upon a complaint, however defective, without objection on account of the defects, if the plaintiff proves a good cause of action, a judgment in his favor will be good. But the complaint in this case is sufficient in substance. It virtually alleges violations by the defendants of •the first named section, by selling strong or spirituous liquors or wines, in quantities less than five gallons,' without license. {Code, § 64, sub. 5.)

It was proved that the defendants were proprietors of a store, doing business together, and in the store daily ; that sales by small measure of spirituous liquors were made there by a clerk of the defendants ; some of which occurred when the defendants were in the store. This proof warranted the conclusion that the sales were by their authority, gales by their clerk, acting under their directions, were made by them, and they thereby incurred the penalty in like manner as if they had personally sold.

[Monroe General Term, September 1, 1856.

The penalty for each offense is single; the defendants were united in committing the offense, and are jointly liable for the penalties incurred, (Conley v. Palmer, 2 Comst. 182. Ingersoli v. Skinner, 1 Denio, 540.)

The judgment of the county court must he affirmed. a

T. U. Strong, Welles and Smith, Justices.]