Inhabitants of Clinton v. Heagney , 175 Mass. 134 ( 1900 )

Barker, J.

As applied to proceedings upon the civil side of a court the ordinary meaning of the, word “ prosecution ” includes the institution of a suit, and is not confined to the mere pursuit of a remedy after proceedings have been instituted. That Clinton is a large and populous town, with more than twenty-four hundred legal voters, who could not be.warned and assembled in town meeting without expense and great loss of time whenever it might be necessary for the town to prosecute its rights in court, is matter of common knowledge, which tends to confirm the view that when by an elaborate chapter of its bylaws the town provided for a law board or committee consisting of the principal town officers, and authorized them to choose a town solicitor and “ to prosecute all litigation to which the town is a party,” the town thereby authorized that board to bring suits in the name and behalf of the town. Therefore the bringing of the present suit under votes of that board authorizing the town solicitor to serve notices on the bondsmen of the defaulting treasurer giving them two weeks for settlement, and further authorizing the solicitor, if unable to make arrangements towards a settlement, at the end of that time to take legal measures to collect the amount due. the town, and the vote engaging counsel for the town in the prosecution, make the suit the action of the town.

The report not only states the evidence, but the further fact that there was no controversy concerning the evidence. This being so, both the findings of fact and the rulings of law were wrong. The exceptions to the right of the attorney who entered the action to appear for the town and to the right of the other attorneys who have subsequently appeared of record for the plaintiff so to appear, and the plea to the jurisdiction, should not have been sustained but overruled.

Orders sustaining the exceptions and plea reversed, exceptions and plea overruled, and the case to stand for trial.