Cleaves v. Jordan , 35 Me. 429 ( 1853 )

Wells, J.

— It is contended on the part of the defendant, that the declaration is bad, because it is not alleged, that the offence was committed against the form of the statute. The allegation, after describing the offence, is, “ contrary to an Act of the State, entitled Of Pounds and Impounding Beasts.”

The statute c. 172, <§> 38, relates to indictments and complaints, and does not include penal actions. They were probably omitted from inadvertence, for it can hardly be supposed that the Legislature intended to require less strictness in criminal than in civil proceedings.

In the case of Lee v. Clark, 2 East, 333, it is said by Lawrence, J., that the reason why the count should conclude contra formam statuti is, “ that every offence for which a party is indicted is supposed to be prosecuted as an offence at common law, unless the prosecutor, by reference to a statute, shows he means to proceed upon it, and without such express reference, if it be no offence at common law, the Court will not look to see if it be an offence by statute.” And it is further said in the same case, as the ultimate opinion of the Court, “ that in all cases, -where the action is founded on a statute, it is necessary in some manner to show that the offence on which you proceed is an offence against the statute.”

But no exact and precise form of words could be necessary; any language, which clearly communicates the idea, would be a compliance with the rule. Hence it is said by Story, J. in the case of the United States v. Smith, 2 Mason, 150, “ all that is required is, that some phrase should be used, which shows that the offence charged is founded on some statute.” Commonwealth v. Stockbridge, 11 Mass. 279.

The language of the plaintiff’s declaration very clearly indicates, that the action is founded on a statute, and for an offence committed in violation of it.

It is contended by the defendant’s counsel, that “ chapter 30, of Pounds and Impounding Beasts” cannot bo called an Act, but only a chapter of an Act, by which the statutes were revised. But although in the arrangement of the statutes, it is called a chapter, still it is an Act of the State. Each chapter is a statute or Act upon the subject to which it relates.

The demurrer must be overruled and the declaration adjudged good.

Shepley, C. J., and Tenney, Howard and Appleton, J. J., concurred.