Fryeburg v. Brownfield , 1878 Me. LEXIS 48 ( 1878 )

Waltok, J.

This is an action to recover for pauper supplies furnished one Georgiana Booth, wife of Frank Booth. The defendants demurred to the declaration.

I. The first reason assigned for the demurrer is that the'declaration does not aver that the pauper’s husband was not able to support her. Such an averment is not necessary. It is sufficient to aver that, at the time the supplies were furnished, the person receiving tliem was destitute and needed relief. This is averred.

II. The second reason assigned for the demurrer is that the declaration does not aver that the husband’s settlement was in the defendant town. Such an averment is not necessary. It is sufficient to aver that the settlement of the person receiving the supplies was in the defendant town. The settlement of the wife may or may not be in the same town as that of her husband. A married woman has the settlement of her husband if he has any in the state ; if he has not, her own settlement is not aifected by the marriage. R. S., c. 24, § 1. The wife’s settlement is averred to be in the defendant town. As she was the only person helped, no other averment upon this point was necessary.

III. The third objection made to the declaration is that it does not contain a sufficient averment of notice to the defendant town. We think it does. Upon this point the declaration is very full and explicit, and contains all which, in our judgment, such a declaration should contain.

IV. The defendants complain because they were not allowed to withdraw their demurrer and plead anew, after it had .been joined by the plaintiffs and ruled upon by the presiding judge. This complaint is groundless. A demurrer, not filed at the first term, cannot be withdrawn without leave of the court and of the opposite party. “ If the demurrer is filed at the first term and overruled, the defendant may plead anew on payment of costs from the time it was filed, unless it is adjudged frivolous and intended for delay, in which case judgment shall be entered.” But when, as in this case, the demurrer is not filed at the first term, and leave of the court and of the opposite party to withdraw it is not obtained, no such right exists. The judgment in such a case is final. R. S., c. 82, § 19. Winthrop Savings Bank v. Blake, 66 Maine, 285. State v. Peck, 60 Maine, 498.

Exceptions overruled.

Appleton, C. J., Barrows, Virgin, Petebs and Lib bey, JJ\, concurred.