Commonwealth v. Hubbard

41 Mass. 98

• Court: Massachusetts Supreme Judicial Court
• Decided: September 13, 1834
• Status: Published

Opinion

Per Curiam.

We have no doubt the indictment is good. Though drawn with unusual brevity, yet it is sufficiently accurate and contains all the necessary allegations, to bring the offence within the statute of 1834, c. 184. The cause of the distress is sufficiently set forth. It is alleged, that certain neat cattle were taken up on the town way, not being under the care of a keeper, and were about to be restrained in the town pound, for going at large in the said highway without a keeper. This brings the case substantially within the provisions of the fourth section. The change of the expression from town way into highway, implies no absurdity or contradiction. Every town way is a highway for most purposes, and may be described as such in an indictment. Although highway is a more comprehensive term than town way, yet the said highway must necessarily refer to the town way before mentioned, and means the same thing.

The only question which has been argued upon the exceptions turns upon the legality of the election of the field-driver. And of this we entertain no doubt. During the continuance of the annual meeting, whether upon the first day or at any subsequent adjournment, the town had a right to increase the number of its officers by electing additional ones, provided it did not exceed the limit fixed by law. There is nothing which re quires all the field-drivers, or all of any other description of officers, to be elected on the first day, but the town has a discretion as to the number it will elect, and the order and time when it will elect its officers. The field-driver was duly sworn before the proper officer to administer such oaths ; and was legally chosen and qualified to perform the duties of that office.

Exceptions and motion in arrest overruled. Judgment of C. C. P. affirmed.