
    * Commonwealth versus the Inhabitants of Dedham.
    No person can be lawfully employed as a town schoolmaster, so as to protect the town from prosecution, unless he first produce the certificates or evidence of his qualifications, required by the statute of 1789, c. 19. '
    To constitute a grammar school, within the meaning of the statute, it must be duly regulated as to the admission of scholars ; and the master must be engaged to keep a school of that description.
    
      A grammar school, required to be maintained by every town having two hundred families or householders, must be kept for the use and benefit of all the inhabitants of the town.
    At the Circuit Court of Common Pleas, April term, 1817, the following indictment was returned by the grand jury, viz., “ The jurors, &c., on their oath present, that the town of Dedham, in said con ity of Norfolk, at said Dedham, on the 26th day of April, 1816, and from that time, to the 26th day of April, 1817, did contain, and still doth contain two hundred families and upwards ; and that said town of Dedham, at said Dedham, did, during all the time from said 26th of April, 1816, to said 26th of April, 1817, neglect, and still does neglect the procuring and supporting of a grammar schoolmaster, of good morals, well instructed in the Latin, Greek, and English languages, to instruct children and youth in said languages ; which is in subversion of that diffusion of knowledge, and in hindrance of that promotion of education, which the principles of a free government require, and which the constitution of the commonwealth enjoins; against the peace and dignity of said commonwealth, and the form of the statute in such case made and provided ” .
    The said indictment was tried upon the general issue of not guilty in the Court below, and being brought into this Court by appeal, was again tried before Wilde, J., February term, 1818; when the defendants offered to prove that they employed one person two months during the said year, to instruct the children in one of the town or district schools, which was similar in its regulations to all the other schools in the town, of which there were eleven. The selectmen had never interfered, in any manner, to regulate the admission of children into said, schools. The person so employed was a graduate of Harvard College, and a student in divinity; and the defendants contended that he was a grammar schoolmaster of good morals, well instructed in the Latin, Greek, and English languages ; and * that his being employed as aforesaid [ * 142 ] was, in part, a compliance with that part of the statute on which they were indicted.
    ■ But the judge instructed the jury, that it was not an observance of the statute.
    The defendants also offered to prove, that two other persons, one a senior sophister in the college at Providence, and the other a freshman in Harvard College, were employed during the said year, four months and a half each, to instruct the children of two other schools, having the same regulations as that before mentioned. There were no regular certificates of the qualifications of the said two schoolmasters last mentioned, obtained before their employment; but the defendants offered to prove, by certificates obtained after their keeping said schools, and by the paroi testimony of the ministers of Dedham, that both of them were, at the time of their instructing said schools, of good moral characters, and well instructed in the Latin, Greek, and English languages.
    The judge ruled that such evidence was incompetent, and that the defendants could not prove those facts by any other evidence than those certificates required by the fifth section of the statute.
    The schools, which were kept during the said year in the town, were district schools; and there was no separate school for teaching the languages aforesaid.
    The defendants were able to prove that, during the said year, other schoolmasters were employed to keep other public schools, and were paid with the money of the town ; but the masters thereof were qualified only to instruct English schools; that the time of employment, during said year, of all the schoolmasters being added, was equal or equivalent to three years for one school; and that the town raised by tax, and appropriated to the use of public schools, during the year, the sum of 2000 dollars. But believing [ * 143 ] the said evidence alike rejected by * the above decision of the judge, the defendants did not offer it, and filed their exceptions to the said decision.
    A verdict being returned against them, the defendants also moved in arrest of judgment; because the said inhabitants are not sufii ciently described by their proper name in the indictment; because it is not therein alleged, that the inhabitants of Dedham neglected the procuring and supporting grammar schoolmasters, &c., and because said indictment does not aver that the town of Dedham contained two hundred families or householders.
    At the last October term, Worthington, for the defendants, argued, that all that was required by the statute, of towns comprising two hundred householders, was that they should be provided with com petent grammar schoolmasters for so long a time, as that all their services should make an aggregate of twelve months in each year. These may be employed contemporaneously in different districts, and indeed, would thus diffuse their instructions through the town more equally than if employed wholly in one district. The word equivalent, in the statute, has the same meaning in its application to grammar schools, as to others, and must intend that such schools may be kept at the same time in several districts.
    The defendants complied with the requisitions of the statute for "eleven months in the year; but they are charged with neglecting their duty during the whole year. Had they been indicted for their actual fault only, they would not have resisted the government. They cannot be convicted of twelve months’ neglect, when the evidence shows them guilty of one twelfth part only of the time.
    It is the duty of the masters to produce the certificates of their qualifications. The town is not liable for a deficiency in these, any more than for the want of fidelity in the exercise of their employment. It may be added that there is nothing in the statute negativing other evidence of the qualifications .
    In arrest of judgment it was urged that the indictment * should have charged the inhabitants of the town of [ * 144 ] Dedham, which is their corporate name; and not the town. The word householders was necessary, since many families might occupy one house.
    
      Metcalf, for the commonwealth.
    The cause was continued for advisement, and at the last February term in this county, the opinion of the Court was delivered by
    
      
      
        Stat. 1789 c 19
    
    
      
       8 Mass. Rep. 111. —3 Mass. Rep. 232.
    
   Wilde, J.

We have taken time for the consideration of this case, not because we thought it entangled with much difficulty, but because we felt unwilling to give a hasty construction to a statute, which has relation to a subject of general interest and importance ; and which, although it has been in operation many years, has not been much discussed in our Courts of law. On this statute, therefore, we have bestowed considerable attention, and we have no remaining doubts, as to its construction.

The first section requires, among other things, that every town or district, containing two hundred families or householders, shall be provided with a grammar schoolmaster, of good morals, well instructed in the Latin, Greek, and English languages; and shall, in addition thereto, be provided with a schoolmaster or schoolmasters, to instruct children in the English language, for such term of time as shall be equivalent to twelve months for each of said schools in each year.

The fifth section provides that no person shall be employed as a grammar schoolmaster, unless he shall have received an education at some college, and before entering on the business of said school, shall produce satisfactory evidence thereof; or shall produce a certificate of a learned minister or ministers, that he is of competent skill in the Greek and Latin languages for the said purpose.

And the second section empowers towns to determine and define the limits of school districts,' for the accommodation of those inhabitants whose dispersed situation might render such a division expedient.

[ * 145 ] * These are all the provisions which are applicable to the present case; and they seem to describe, with sufficient clearness, the duties of towps, in relation both to the regulation of their schools, and the qualifications of the schoolmasters they are permitted to employ. The question then is, whether the defendants have complied with the requisitions of the statute. To determine which, we must first decide what is necessary to constitute a grammar schoolmaster within the act.

It has been argued, that the character or denomination of a school must be determined by the qualifications of the master, and not by the nature of his contract with his employers ; and that the production of evidence, to the selectmen, of his learning and morals, is not indispensable.

This argument, however, cannot be supported against the express words of the statute. Doubtless, the qualifications of the master are of the first importance to the school; and if these are unexceptionable, it seems hard to say that the school would be illegally instituted, unless the certificates of such qualifications were exhibited to the selectmen,“in compliance with the law. But the words of the statute are express, and the meaning is too obvious to admit of a doubt. No person can be lawfully employed as a town schoolmaster, unless he first produce the certificates or evidence required by the statute. Such evidence is decisive as to the legality of the school, and can never afterwards be questioned. Nor can the want of it be supplied aliunde. It maybe regarded as equivalent to the license of the ordinary, required by the law of England; without which no person can there lawfully be employed to teach a grammar school, whatever may be his learning and other qualifications for such a ti ust.

Again, to constitute a grammar school, within the meaning of the statute, it must be duly regulated as to the admission of scholars ; and the master must be engaged to teach a school of that description. Now, none of the schools in Dedham wrere under [ * 146 ] the regulations prescribed * for grammar schools; nor is it pretended that the masters were engaged to teach any such schools. In most of the districts they were in no respect qualified as grammar schoolmasters ; and it is expressly admitted that all the schools in the town were under similar regulations. They must therefore be regarded in the same light, and as forming but one description of schools.

But there is another objection to the defence set up in this case. The schools required by the statute are to be maintained for the benefit of the whole town, as it is the wise policy of the law tc give all the inhabitants equal privileges, for the education of their children in the public schools. Nor is it in the power of the majority to deprive the minority of this privilege. If, then, the schools in three of the districts are to be considered as grammar schools, and those in the other districts as of another description, the whole proceedings, of the town have been irregular; and it may well be doubted, whether the money of the town can be lawfully appropriated to the support of schools thus instituted. Every inhabitant of tho town has a right to participate in the benefits of both descriptions of schools ; and it is not competent for a town to establish a grammar school for the benefit of one part of the town, to the exclusion of the other; although the money raised for the support of schools may be, in other respects, fairly apportioned. If the whole of the money so raised by the defendants had been expended in three districts, no one would contend for the legality of such an appropriation. Yet the principle of the present case is the same. For the two descriptions of schools are to be considered as distinct and independent of each other. Both must be town schools, and not schools for the benefit of a part of the town only.

For these reasons, the Court are all of opinion that the motion for a new trial must be overruled.

As to the motion in arrest of judgment, there seems to be no ground for it. Misnomer is only matter of abatement,

* and is nota good cause for arrest, even in criminal [*147] prosecutions. But if it were, we are of opinion that the defendants are rightly named; and that the delinquency of the town is described with sufficient certainty.  