Adams v. Miller ( 1902 )

Calhoon, J.,

delivered the opinion of the court.

No doubt the judge who presided at the final disposition of this cause below extended the demurrer to the special plea back to the declaration, and sustained it as to that. His conclusion was right, and the demurrer originally filed to the declaration should have been sustained. The action is purely and simply on the bond of the dramshop keepers and their sureties, given under code, § 1582. In the case made by the declaration, neither the principals nor their sureties are liable on that bond, because it is confined to the actions of the licensed dramshop keepers at the place specified in the license for conducting the business. The declaration makes no complaint of any impropriety at that place, but charges that the keepers had, in fact, another place, in another building, and across the street, where they carried on the illegal traffic by making sales. The question whether the principal might be indicted or separately proceeded against by the revenue agent is not involved here; and so Black on Intoxicating Liquors, sec. 434, cited by counsel, has no application. The plaintiff must stand or fall by the bond, because he sues on that.

Affirmed.