Commonwealth v. Certain Intoxicating Liquors

88 Mass. 599

Opinion

Chapman, J.

The complaint alleges that the liquors described were kept “in a certain building situate on the west side of a road leading from Cherry Valley to Worcester, and known as the Booth Bottomly Place in said Leicester, and occupied by said William Webster as a barn, shed and dwelling-house.” It also makes the averments required by statute to authorize the search of a dwelling-house. The warrant conforms to the complaint in this respect. But the notice ordered by the magistrate describes it as “ the building occupied by said Webster as a house, shed and barn in said Leicester.” It is contended that this is a variance, particularly as the house is not called a dwelling-house. But a “ house,” without further description, is generally understood to be a dwelling-house. 2 Saund. 401, n. 2. Com. Dig. Fait, E. 4. And a house occupied by a man is generally understood to be that in which he dwells. This is the primary signification of the term. In this case, there is no fact alleged tending to show that the notice would mislead any one, and substantial certainty is all that is necessary in a notice.

The words “ within one month last pastin the warrant, signify one month next before the making of the complaint.

The objection that the notice to claimants does not include the casks as well as the liquors is founded on a misconstruction of the language. Both are equally included ; and the notice is in the form prescribed by the statute.

Exceptions and motion in arrest of judgment overruled.