38 N.H. 314 | N.H. | 1859
Criminal informations, which are not found upon the oath of a jury, may be amended by the court, and even by a single judge at chambers, at any time before trial; and the reason assigned for the difference between indictments and informations in this respect is, that the latter are originally framed by an officer of the government, while the former are the accusations of a number of men sworn to inquire and to decide according to evidence. 1 Chitty’s Crim. Law 298, 842; King v. Wilkes, 4 Burr. 2527, 2568, and cases there cited; King v. Holland, 4 D. & E. 457. The amendment excepted to was, therefore, properly allowed.
The objections to the laying out are all of one class. They affect the regularity of the proceedings, and not the authority or jurisdiction of the tribunal. A want of jurisdiction renders proceedings void, and advantage may be taken of the defects, when they are incidentally brought in question, by any person. But irregularities and errors in the course of the proceedings make them merely voidable ; until they are avoided, they remain valid as to some persons and for some purposes, and are capable of confirmation. They are not impeachable by everybody, nor open to be assailed by those who have no interest in the matter of the defect, nor by those who have waived their exceptions, and thus confirmed the laying out, either directly or incidentally. The principles on this subject have been so fully discussed in State v. Richmond, 26 N. H. (6 Fost.) 232, and White v. Landaff, 35 N. H. (3 Fogg) 26, that it is not necessary to allude to them further.
The objections that one of the land-holders and the petitioners were not notified, might be valid objections for them to make. They are not so for the town. They may
The third and fourth objections, as to the adjournments, seem to be merely formal defects in making up the record, which, without an amendment, might be fatal on a certiorari, issued on the hearing of a petition alleging that substantial injustice had been done by the laying out, yet cannot have the effect of rendering the whole laying out void, .nor of enabling the town to avoid it. It is not suggested that the town is in any way prejudiced by the omission.
Two of the selectmen, by the explicit language of the Revised Statutes, had authority to act and decide upon this application. Rev. Stat., ch. 34, sec. 2; Butler v. Washburn, 25 N. H. (5 Fost.) 256. It appeared by the evidence that there were three selectmen elected and qualified, and that they were all present and acting at the hearing upon the petition for this highway.
The real ground of complaint is not that these selectmen did not act, but that the record is defective in not showing that fact. The laying out is not to be held void, nor avoided incidentally, for a defect like this, where the record shows a decision by a legal quorum of the selectmen.
It has been often held that junior forms no part of a man’s name. If it appears that there are two men of the same name, one of whom is named in any writing, parol evidence is admissible to show which was intended. The writing is not void for uncertainty. If the younger of two persons of the same name is elected selectman, and is qualified and acts as such, and, in any proceeding of the selectmen, he is named without addition, and objection is made, it will not be intended that the elder person of the name is meant, but evidence will be admitted to show
The exceptions taken to the laying out were properly overruled.
Judgment on the verdict.
