Duke v. Marston

• Decision Date: 19 July 1888
• Citation: Duke v. Marston, 15 A. 222, 64 N.H. 603 (N.H. 1888)
• Parties: DUKE et al. v. MARSTON et al.
• Court: New Hampshire Supreme Court

15 A. 222

64 N.H. 603

DUKE et al.

v. MARSTON et al.

Supreme Court of New Hampshire. Coos.

July 19, 1888.

R. N. Chamberlin, for petitioners.Ladd & Fletcher and D. J. Bailey, for defendants.

SMITH, J.This is a petition under Laws 1887, c. 77, signed by 20 legal voters of the town of Berlin, and is as follows: "Coos, ss.— To the Supreme Court: The undersigned petitioners, legal voters of the town of Berlin, in said county of Coos, complain against the building known as the 'Cascade House,' situated in the town of Berlin, on the westerly side of Main street, in Berlin Falls village, in said Berlin, and say that said building is occupied by its owner, Henry F. Marston, his clerks, servants, and employes, for the purpose of selling and keeping for sale spirituous and malt liquors, wine, and cider, and is a common nuisance.Wherefore your petitioners pray that said building may be adjudged a common nuisance, and that said Henry F. Marston, his clerks, servants, and employes, and all other persons who shall occupy the said building, may be forever enjoined and restrained from keeping for sale or selling spirituous or malt liquors, wine, or cider in or upon said premises."The defendants demur, and the question is as to the sufficiency of the petition.The statute is as follows: "Section 1.Any building, place, or tenement in any town or city that is resorted to for prostitution, lewdness, or illegal gaming, or that is used for the illegal sale or keeping for sale of spirituous or malt liquors, wine, or cider, is declared to be a common nuisance.Sec. 2.The supreme court shall have jurisdiction, in equity, upon information filed by the solicitor for the county, or upon petition of not less than twenty legal voters of such town or city, setting forth any of the facts contained in section 1 of this act, to restrain, enjoin, or abate the same, and an injunction for such purpose may be issued by said court or any justice thereof."The petition alleges that the building complained of "is occupied by its owner * * * for the purpose of selling," etc.This is obscure.It may mean that the occupant has an unexecuted intent to use the building for selling, etc.It may mean that the building is so used.In civil actions, where words are used which bear a natural sense, and an anticipated sense, they may betaken either way against the party pleading; and if either sense will operate against the pleader, his pleading is defective.Gould, Pl.c. 3, § 54.The purpose of the occupant is immaterial so long as it is not carried into effect.It is the use made of the building for illegal purposes which makes the building a common nuisance.There is no allegation that the selling or keeping for sale is illegal.The sale of cider in quantities of 10 gallons and upwards is not illegal; and sales of intoxicating liquor by a town agent, within the limitations of his appointment, are legal.The petition is defective in these two particulars.The petition is...