Plaisted v. Walker, 77 Me. 459

Plaisted v. Walker

77 Me. 459 | Me. | 1885

Libjsev, J.

The declaration originally contained one count to which the defendant demurred specially at the first term. The demurrer was sustained and the declaration adjudged bad, and no exception was taken. This adjudication is final and conclusive as to that count. E. S., c. 82, § 23.

The plaintiff had leave to amend and filed fifty-two new counts. Exceptions were taken to the allowance of these amendments, but we think the court had power to allow them. The original count was not amended. The defendant again filed a special demurrer. It must be confined to the new counts. Bean v. Ayers, 69 Maine, 122.

*462The new counts are all alike except as to the time covered by each. The action is brought to recover the penalties alleged to have been incurred by the defendant for violation of the act of 1877, c. 204 (R. S., c. 28). By R. S., c. 81, § 14, the action is local and the declaration must allege that the offence was committed in the county where it is brought. The penalty is incurred by engaging and continuing in the business of an apothecary one week. The declaration should allege that the defendant continued the business at some place in the county of York at least one week. This is material and cannot be left to inference. The new counts do not so allege. They merely allege that the defendant "at said York, did engage in and carry on the business of an apothecary, then and there not having been granted a certificate and registration by the commissioners of pharmacy . . . and did continue so to engage in and carry on said business for and during the week,” &c. Here is no allegation that the defendant continued to carry on the business at said York for the week named. The word "so’’must be held to refer to the manner of carrying on the business, and not to the place where it was carried on. For this reason the declaration is bad.

Other questions are raised by the demurrer, but we do not deem it necessary nor important to consider them.

Whether the furtherance of justice will require that the plaintiff shall be allowed to further amend his declaration, if he shall ask it, must be determined by the court at nisi prius.

Exceptions sustained. Demurrer sustained.

Declaration bad.

Peters, C. J., Walton, Virgin, Emery and Haskell, JJ., con curred.