23 Me. 140 | Me. | 1843
The opinion of the Court was by
This case is presented on a general demurrer to the declaration.
The first defect alleged is, that it does not appear to be an action of debt as provided by the Statute, c. 115, >§> 21. It is said, there should be a distinct allegation, that it is a plea of debt. The declaration alleges, that the defendant “ owes and unjustly detains” the amount demanded. These terms are sufficient to determine the kind of action; and the form used is in substance, that required by the English precedents.
The second defect alleged is, that the declaration does not contain an averment, that the defendant unreasonably or without sufficient cause neglected to perform the duty required. It does allege, that from the time of his election and qualification, “ he hath neglected and still doth neglect.”
The provision of the statute is, “ every treasurer neglecting his duty” shall forfeit and pay. And the language of the declaration is as full and decisive as that of the statute. A charge of continued neglect of duty implies blame* and excludes the idea, that there was sufficient reason for an omission to perform it.
In the third place it is contended, that all the allegations in the declaration may be true, and yet the defendant may not have been guilty of any neglect of the duties required by the statute. They are sufficient to show a neglect of the duty required by the eighth section of the statute, c. 73 ; but the ninth section so far varies that duty, as to permit the treasurer to procure half-bushel, peck, and half-peck, measures made of wood, instead of the like measures made of copper, or pewter, as required by the eighth section! As the declaration alleges,
In this case the plaintiff is not entitled to recover upon the facts stated in his declaration, for the penalty is not incurred, except by a neglect shown from a consideration of the provisions of the three sections.
Declaration adjudgéd bad.