Commonwealth v. Eastern Railroad

Dewey, J.

Although the proceedings under St. 1840, c. 80, assume the form adapted to a criminal offence punishable by indictment, yet it is apparent that a leading object of the statute was to secure some pecuniary provision for the widow and children, or heirs at law. It is true that the statute provides that the fine is to be recovered to the use of the executor or administrator of the deceased person, but it is to be recovered by him for the benefit of the widow and heirs at law.

It could not have been the purpose of this act to levy a fine upon the defendants, to be paid over to an administrator, to be held by him for his own private benefit. But such might be the effect if there was no widow and no heirs at law.

We think the indictment should allege, as a distinct affirmative averment, that the deceased has left a widow and child, or one of these only, as the case may be; and if no widow or child, then that it should be alleged that thé deceased left heirs at law, for whose benefit the executor or administrator is to recover the amount of the fine imposed upon the conviction of the party in default, through whose negligence the life of a person who was a passenger has been lost.

Exceptions sustained.