Metcalf v. Weed , 66 N.H. 176 ( 1889 )

A description which identifies with reasonable certainty the place or places to be searched is sufficient. G. L. c. 255, s. 1; Bill of Rights, art. 19; Com. v. Intoxicating Liquors, 97 Mass. 334; Com. v. Same,113 Mass. 208, 209; State v. Whiskey, 54 N.H. 164. The description of the place as "the premises now occupied by Parker Metcalf situated in Haverhill" is not upon its face insufficient. It is a question of fact, determinable at the trial term, whether it designates the place with reasonable certainty. The question is similar to that which arises under G. L., c. 75, s. 7, requiring a person injured while travelling on a highway to file with the town-clerk a statement of the exact place where the damage was received. Horne v. Rochester, 62 N.H. 347, 350, Carr v. Ashland,62 N.H. 665; Robin v. Bartlett, 64 N.H. 426. A question of fact is not ordinarily determined at the law term, however strong or conclusive upon one side or the other the evidence recited in the case may seem to be, and though all the evidence relating to it is reported. Jones v. Aqueduct Co., 62 N.H. 488. There the reserved case contained an express finding (omitted as immaterial in the reported case) that "herein are stated all the facts and circumstances claimed by either party to have any bearing upon the question whether the use made by the defendants of their land and of the water is or is not a reasonable use."

Evidence tending to show that Parker Metcalf was the reputed occupant of the premises was competent. The question was, not whether Parker Metcalf was in fact, or in a strict legal sense, the occupant, but whether the place was commonly known as "the premises occupied by Parker Metcalf." If it was so known, the description was sufficient though he was not in fact the occupant. In criminal pleading, a descriptive averment designating a person by a name by which he is commonly known, though not his true name, is sufficient. Com. v. Desmarteau, 16 Gray 1. So of a highway or street. Com. v. Intoxicating Liquors, 113 Mass. 208; Com. v. Noxon, 121 Mass. 42. Witnesses may properly be permitted to testify that in particular instances they have heard the person or street called by such name. Com. v. Gale, 11 Gray 320; Wier v. Allen, 51 N.H. 177, 185. The admissions of Parker Metcalf were not evidence against the plaintiff, and were properly rejected.

Case discharged.

BINGHAM, J., did not sit: the others concurred.