Inhabitants of New Gloucester v. Bridgham , 28 Me. 60 ( 1848 )

The opinion of the Court was by

Whitman C. J.

— This is an action of debt, against the defendant, to recover of him a penalty for selling spirituous liquors, without license. It is averred in the declaration, that, on the first day of December, 1846, and between that day and •the first day of June, 1847, the defendant sold glasses of spirituous liquors, viz. rum, gin, brandy, wine, and mixed liquors, &.C., to divers persons unknown. The action was originated before a justice of the peace, before whom the defendant “ called for the plaintiffs’ appearance,” which was overruled. Whereupon the general issue was pleaded, and the cause then proceeded to trial ; and was brought into the district court, by appeal, where the call for the plaintiff’s appearance was again made and overruled; and this forms one ground of exception to the decisions in that court. What idea the defendant’s counsel had in this call, is not understood. The plaintiffs were then regularly in court. If any agent or attorney had appeared for the plaintiffs, his right to do so might have been questioned; and the court might have been called upon to determine whether such agent or attorney was properly authorized to appear in the suit. And this may have been what the counsel was aiming at. Corporations aggregate, must ordinarily prosecute and defend at law, by their agents or attorneys.

Questions of this kind are referable to the sound discretion of the courts, who must determine when it is reasonable to consider an action as commenced and prosecuted by a suitable ■authorization. A vote of a corporation authorizing some one in its behalf to prosecute, may, generally, be necessary; but there are many cases, in which no such special authority is necessary. Overseers of the poor would be admitted, in behalf of their towns, to appear and prosecute or defend suits, in reference to claims for the support of paupers; and treasurers of our towns would be allowed to maintain suits for demands due by note, payable to their towns; and so would officers of any corporation be considered authorized to prosecute in reference to matters particularly under their care and superintendence. The selectmen of our towns, it is believed, have not unfrequently been allowed to appear in courts, and to prosecute and defend as agents for their towns. Whenever the court sees reason to believe, that, those prosecuting in behalf of a corporation, have a general superintendence over the subject matter in litigation, they will allow them to appear and prosecute, without any special vote for the purpose.

In this case, the selectmen of the plaintiffs, their clerk and treasurer, must be regarded as having authorized this suit. They have signified their approbation of it by their indorsement of the writ. The plaintiffs have an interest in the subject matter of it; and their selectmen, treasurer and clerk constitute the licensing board, and have sanctioned the prosecution ; and may well be considered as the agents of their town, to see that the law in this particular, shall not be violated wffth impunity ; and that its interest should not be neglected or overlooked. The district court, therefore, did not err in overruling the .motion.

The next ground of exception is, that the time when the ■selling took place, is not properly alleged. The allegation is, that it was on a certain day in December, 1846. This is sufficiently specific as to time. A further selling is alleged between that time and the first day of June following, which is irregular, but unimportant, and may be regarded as surplusage. Only one act was proved or found by the jury ; and that may well stand, as having been found to have been on said first day of December; for it is not important that the act proved should be on the precise day alleged.

It is next insisted, that there is no averment as to what particular articles were sold; but the allegations as to this matter are in accordance with precedents heretofore in use; and as particular and certain, as the nature of the case would ordinarily admit of. They are, that the defendant, on the day named, sold spirituous liquors, viz: one glass of each kind, naming them. What is meant by a glass of spirit, cannot be very unintelligible, to dealers in that article ; and our statute of jeofails requires only that the averments should be such as that the accusation may be intelligible. This and the preceding objection should come before us, if at all, upon demurrer to the declaration.

The Judge at the trial admitted evidence of selling at times other than the one relied upon, which was introduced by way of aggravation, with a view to enhance the penalty to be recovered, which the statute provides shall be from one to twenty dollars, it having been agreed by the parties, that the jury should ascertain the amount to be recovered. Under such circumstances the proof, so admitted, can form no just ground of complaint on the part of the defendant. .Besides, in argument it was staled, and not controverted, that the jury returned their verdict for a penalty of but one dollar, the least that is authorized by statute for a single instance of selling. The defendant, therefore, was not aggrieved by the admission of proof of selling in more than one instance.

An exception was taken to the permission, by the court, on cross-examination of a witness, introduced by the defendant, to inquire of him for his reasons, why he did certain acts, to which he had testified on his examination in chief. But the court might, in the exercise of a sound discretion, permit such a cross-examination. Such inquiries may be allowed oftentimes, although they may have no direct tendency to support or disprove the issue, in order to test the accuracy of the recollection of an adversary’s witness, or to affect his credibility. In giving his reasons for doing the act, he might render it incredible that he should have done it. In this very instance, the witness had testified to his having been in the habit of getting meals at the defendant’s, accompanied with a supply of ardent spirit, for which he paid nothing, otherwise than as he paid for his meals, at the same time that his wife took her meals at another place in the same village, in which the defendant lived. It might well be inquired of him, whether he did not so take his meals for the purpose of being supplied with intoxicating drinks; and, then, whether the defendant did not so understand it; and hence to have it inferred, that this was a mere subterfuge to avoid the appearance of selling liquor unlawfully.

It was objected that one Johnson should not have been admitted as a witness. His name, among others, was improvidently introduced into the writ, as being one by whom the plaintiffs sued. There was no reason why he should have been so named. No judgment can be rendered in his favor in the case, nor against him. He cannot be regarded as a party, or as having any other interest than that which pertains to him as an inhabitant of the plaintiff town; and as such he is made a competent witness by Rev. Stat. c. 115, § 75. But if he could be regarded as otherwise a plaintiff, the statute of 1846, c. 205, § 6, has made him a competent witness.

A further objection was made, that the declarations of the defendant should not have been allowed to be introduced, that he had kept and would keep spirituous liquors for sale, as such declarations did not immediately accompany the act of selling as proved. But declarations of defendants, tending to show their having formed determinations to commit crimes, are always admissible against them, when accused of committing the same.

The exception, as to the supposed want of proof of facts necessary to constitute a sale, is not sustainable. There was evidence from which the jury were warranted in finding, that the defendant actually sold spirituous liquor, as alleged, notwithstanding the disguises put in practice to make it seem otherwise. Exceptions overruled.