Ichabod Foster vs. Peter Haines, 13 Me. 307

The opinion of the Court, at a subsequent term, was delivered by WestoN C. J. In the case of Wyman v. Dorr, 3 Greenl. 183, and in Clapp v. Balch, 3 Greenl. 216, it was held that the granting or refusing to grant amendments, was wdthin the discretion of the Common Pleas, and therefore did not furnish matter for exceptions. But if the original declaration had contained the counts, offered under leave to amend, we are of opinion, that after the plaintiff had introduced his testimony, a nonsuit was properly ordered, by the Judge who presided at the trial.

It appeared by the plaintiff’s own showing, that the defendant was a licensed innholder. He was then authorized to sell spirituous liquors, having a license therefor. It is lawful for innholders to sell such liquors, except to certain persons, for selling to w'hom a special forfeiture is provided. They are to take care not to suffer within their premises any revelling, riotous or disorderly conduct, under pain of forfeiting the bond, they are required to give. The plaintiff relies, to support his action, upon the latter part of the first

section of the statute of 1834, ch. 141, for the regulation of innholders, retailers and common victuallers. It provides that if any person shall at any time sell any spirituous liquors, or any mixed liquors, part of which is spirituous, without license therefor, duly had and obtained, he shall forfeit for each offence the sum of ten dollars. This is an offence, which cannot be committed by a regular innholder, for ho has a license, which authorizes such sale. If the defendant was licensed, which is in proof, the acts charged, even in the amended count, constitute no offence.

He had a right to sell to travellers and others, as may be deduced by fair implication, especially if we take into consideration the statute passed in pari materie, at former periods. And this right has been extended also to a common victualler. State v. Burr, 1 Fairf. 438. And it is admitted in argument, by the counsel for the plaintiff, that an innholder might thus sell, to be drank in his house, but not to be carried from it. If this distinction is well founded, the gist of the offence consisted in its being sold to be carried away, which should have been averred in the declaration.

As it was not averred, it failed in an essential point, according to his own construction. The offence charged was not proved. The nonsuit then was proper; although there may have been proof of an offence not charged. And if an inn-holder has no right to sell spirituous liquor to be carried away from his house, it would be difficult to show, that by so doing, he forfeits the penalty demanded in this action ; or that he is liable under the section, upon which it is based, which is silent upon this point.

It is further insisted, that if an innholder sell spirituous liquor to be carried away, and may do it with impunity, he has all the privileges of a common retailer. But if he presumes to be a common retailer, without being licensed as such, he is liable under the statute to a forfeiture of fifty dollars. It is not pretended, that the defendant is charged as a common retailer. And we are all of opinion, for the reasons before stated, that the nonsuit was properly ordered. Exceptions overruled,.