Morse v. Eaton

23 N.H. 415

• Court: Superior Court of New Hampshire
• Decided: December 15, 1851
• Status: Published

Opinion

Bell, J.

Upon demurrer, the complaint would be clearly bad for duplicity. Little v. Perkins, 3 N. H. Rep., 469; 1 Ch. Pl., 230 ; Commonwealth v. Eaton, 15 Pick. Rep., 273; Austin v. Parker, 13 Pick. Rep., 222.

In civil cases, duplicity is bad only on special demurrer, and is cured by pleading over. Joy v. Simpson, 2 N. H. Rep., 179 ; Tarlton v. Wells, 2 N. H. Rep., 308; 1 Ch. Pl., 513. But in criminal cases, if two distinct and separate offences are regularly laid in one count of an indictment, the judgment will be arrested. The State v. Nelson, 8 N. H. Rep., 163.

This is not a criminal case, strictly speaking, yet it is a case of a prosecution for an offence, a neglect of duty imposed by law, prosecuted by a public officer, iij pursuance of a duty imposed upon him by law, and to be punished by the imposition of a fine; and we are of the opinion, that the principle established in the case of The State v. Nelson, must be applicable in a case of this kind.

Judgment arrested.