Majority
p. 187Peter Ehel against John Smith. ALBANY August, 1805.
Headnote
IN ERROR on certiorari, the return set forth the warrant to have been directed to the constable of the town where the defendant “ dwelt/’ and thatthe plaintiff below, after declaring generally, thatthe defendant was indebted to him, delivered to the justice a book account, the greater pari of which was for tavern expenses. To this the defendant . , „ . pleaded m bar the 13th section of the tavern act, restricting innkeepers from trusting any persons, other than travellers, for a larger sum than 1 dollar 25 cents, for strong or spirit-ons liquors, or other tavern expenses. The justice, however, went on to trial, and the jury brought in a verdict in favor ci the plaintiff, for 25 dollars, of which sum they found 3 dollars 82 cents to have been for spiritous liquors,Golf assigned as reasons for reversal, that on the face ° .... or the record, it appeared the action was not maintainable, and also that the oath administered to the constable was not . to keep the jury “ together,” but only to keep the “ inquest in some private” place. This last objection he contended was, on the authority of the eighth resolution in Day v. Wil ber,[1] fatal. 5
_ Simonds contra,
^ o insisted, that as the cause went to a jury, it must be intended the defendant was proved to have been a lodger in the tavern, and therefore within the exception of the 14th section.
Gold,
^ _ in reply, said no intendment could be made against the record, and by that, it appeared the defendant below “ dwelt” in the town, to the constable of which the warrant was directed.
If a plaintiff be' cit,ciare ^genera% against a defendant, that ]ie was “ in-book-account will be taken a.s Part bis and if it appear °n return to nave been for tavern expen-se3> plaintiff ought to shew that the defend* ant vvas withire ceptions in the 33th, section f the tavern act, aliter, if the that the de-tavern 'Ixpeí ses, for then the within them. error-books may be deliver-^ut* ffiey will not be al-jaxatioru 0°
Per curiam, delivered bjr
. This .case comes before the court on certior aru Several exceptions have been taken to the return. We shall confine ourselves to that which relates to the declaration.
The account delivered must necessarily be taken as the plaintiff’s declaration, otherwise he sets forth no specific demand to which the defendant could answer. Although a plaintiff in a justice’s court ought not to be held to technical niceties in declaring, yet he ought to make it appear, that he has a sufficient foundation for bringing his action.
p. 188
and not by his own shewing, disclose that his demand was jjjegaj^ jgy t^e genera} terms “ tavern expenses,” the court must necessarily intend such charges as are prohibited ⅛ ^ section of the act pleaded in bar. Had he declared on a common book account, it might have been incumbent on the defendant, to shew that the account was for tavern- expenses, and the court here might intend, in favor of the judgment⅜ that he failed in doing that. But when the declaration states the demand to be tavern expenses, it lay with the plaintiff to disclose that the defendant-was u a traveller or lodger in his house,” in order to bring his account within the exceptions in the act, and give hiin a right of recovery. Not'having done this,.his demand, from his own shewing,- was illegal,- and the judgment in the court below, cannot be' maintained ; more especially as it appears expressly by the return, that three dollars and eighty two cents of the recovery was for tavern expenses. This precludes us from making any intendment that the illegal charges were rejected.* The judgment must therefore be reversed.
N. B. Gold delivered error books to all the judges, who said this was not prohibited from being done, but that they Would not be allowed for on taxation.