State v. Collins

• Decision Date: 27 July 1894
• Citation: 36 A. 550,68 N.H. 46
• Court: New Hampshire Supreme Court
• Parties: STATE ex rel. THORNDIKE et al. v. COLLINS et al.

36 A. 550

68 N.H. 46

STATE ex rel. THORNDIKE et al.

v. COLLINS et al.

Supreme Court of New Hampshire. Merrimack.

July 27, 1894.

Exceptions from Merrimack county.

Petition by the state of New Hampshire, on the relation of Charles H. Thorndike and others, against James M. Collins and another, to abate a liquor nuisance. The petition was amended by substituting legal voters for those petitioners who were not legal voters, and defendants except. Exceptions overruled.

W. H. Sawyer and Burleigh & Adams, for the State.

Albin & Martin and Bingham & Mitchell, for defendants.

CHASE, J. The statute required the petition to be signed by not less than 20 legal voters of Concord. Pub. St. c. 205, § 5. It purported to be so signed, and was therefore sufficient upon its face, but it turned out that only 19 of the signers possessed the requisite qualification. Was the defect amendable? There is nothing in the nature of this action (State v. Saunders, 66 N. H. 39, 25 Atl. 588; Rancour's Petition, 66 N. H. 172, 20 Atl. 930) that excludes it from the operation of the general rule authorizing the court to allow amendments to be made in civil actions by adding new parties, or substituting new ones for original parties, if justice requires the change to be made (Pub. St c. 222 §§ 7, 8, 11; State v. Batcheller, 66 N. H. 145, 20 Atl. 931; Annis v. Gleason, 56 N. H. 16; Judge of Probate v. Jackson, 58 N. H. 458; Boudreau v. Eastman, 59 N. H. 467; Buckminster v. Wright, 59 N. H. 153; Hazen v. Quimby, 61 N. H. 76; Willoughby v. Holderness, 62 N. H. 661; Pitch v. Nute, 62 N. H. 700; Owen v. Weston, 63 N. H. 599, 603, 604, 4 Atl. 801; Smith v. Hadley, 64 N. H. 97, 5 Atl. 717). The requirement that there shall be 20 petitioners, who shall be legal voters in the town where the alleged nuisance exists, was designed to prevent frivolous and vexatious suits. So many persons of mature age, having an opportunity to learn whether a nuisance exists, by a residence in the vicinity for six months at least (Pub. St. c. 31, §§ 1, 8), are not likely to join in a petition unless there is reasonable cause for instituting the proceeding. As a guaranty of the necessity and good faith of the suit, the petition of such persons may well be regarded as equivalent to an information filed by the solicitor of the county. Pub. St. c. 205, § 5. The object of the requirement is not defeated by substituting a qualified person for one not qualified. The substitute will not become a party unless he...