Town of Shrewsbury v. Town of Mount Holley

Pbentiss J. delivered the opinion of the Court. — The warning, upon the validity of which the question in this case arises, is conceded to be regular and formal in all respects but one. It is signed by John Kilbourn and others, with the word “ selectmen” annexed to their names, but without adding the words of Shrews-bury. It is insisted, that the form prescribed by the statute requires the addition of the latter words, and, that for the .want of them, the warning is defective and void. The form given by the statute must undoubtedly be pursued in every essential particular; but it is not every verbal variance, either in the omission or addition of words, that will vitiate. If there be nothing in substance wanting, it is well enough, though there is some .literal variation from the form prescribed, either in introducing words .which are unnecessary and immaterial, or omitting words, which if inserted, would not alter or change the sense. And where there is an omission to insert words, contemplated by a blank in the form prescribed, in the order and place contemplated, ifthe matter intended by them appears with sufficient certainty from other parts of the instrument, the purpose of the statute is answered, and the o-rnission maybe treated as a mere formal and unessential defect. To hold otherwise, would be to adopt an exactness, in regard to matters of mere form, unnecessarily critical and nice. There is no doubt, that it must appear in this case, from the warning itself, that it was signed and issued by the persons whose names are subscribed to it, as selectmen of Shrewsbury ; and if it does not so appear upon the face of th'e warning, it is insufficient and void.— The warning is directed to the constable of Shrewsbury: it commands him to summon the persons therein named, who are described as residing in Shrewsbury, to depart the town of Shrewsbu-ry ; and it concludes with the words, ‘.‘Given under our hands at Shrewsbury,” &e., followed with the names of individuals, subscribing themselves selectmen. Although the words “ of Shreivsbury,” [222] are not added, the warning, without them, must necessarily he intended to be the official act of the selectmen of Shrewsbury~ There is the same certainty in this respect, upon the face of the warning, as if the words were added ; and the omission, therefore, must be regarded as merely verbal and immaterial. Bates, for appellants. Williams, for appellees. Judgment affirmed.