Shoeey v. Chandlee

• Decision Date: 18 June 1888
• Citation: 80 Me. 409,15 A. 223
• Parties: SHOEEY v. CHANDLEE.
• Court: Maine Supreme Court

15 A. 223

80 Me. 409

SHOEEY

v. CHANDLEE.¹

Supreme Judicial Court of Maine.

June 18, 1888.

Exceptions from superior court, Kennebec county.

Action under civil damage act, to recover damages resulting from sale of intoxicating liquors to plaintiff's husband by defendant. Reported by rescript, 15 Atl. Rep. 24. Webb & Webb, for plaintiff. Brown & Carver, for defendant.

PETERS, C. J. In this state the general rules of pleading are simple and certain, and should be adhered to. The law should be observed, because it is the law. The toleration of constant departures from the rules soon casts them into confusion and disrepute. No rule has been better established in this state than that requiring in declarations that the time of every traversable fact shall be named. The pleader must name some certain day, whether correctly named or not. The rule imposes no burden or risk. It is easier to obey than it is to disobey it. Declarations omitting this certainty of allegations have been repeatedly held in this state to be bad on demurrer; the last reported case in which previous cases are cited being Cole v. Babcock, 78 Me. 41, 2 Atl. Rep. 545. The plaintiff suggests that a special demurrer is required to point out the defect. We think a general demurrer is sufficient. The demurrer was general in the case cited, and also in most of the cases there cited. In the case at bar the declaration asserts that the defendant "did, on divers days and times between January 1, 1886, and the date of the writ," sell liquors to the plaintiff's husband, from which certain effects ensued. Now, it is clear that stating certain acts as done between two points of time many days apart, does not state any particular day on which they were done. Such a statement is no more certain than it would be to allege an act as occurring "on or about" a certain day named, or "near" such time; and such allegations have been held to be insufficient. Here is a continuando with nothing for it to attach to, with no day to begin with or to continue from. The acts complained of may have occurred months after January 1, 1886, the writ bearing date in May of that year. We find no fault with the allegation that the acts were done diversis diebus et vicibus. That mode of describing them is indispensable where the selling consists of continuous acts. It would be very difficult for a plaintiff to ascertain the details of an habitual offending, so as to allege them in any other way. But the plender should have alleged some certain day, and, in addition thereto, the divers days and times. It is just as unnecessary to allege a day certain where a continuando accompanies it as where it does not. Says METCALF, J., in Wells v. Com., 12 Gray,...