Atwood v. Inhabitants of Winterport

60 Me. 250 | Me. | 1872

Appleton, C. J.

There is no legal proof of the plaintiff’s enlistment.

Parol proof of the plaintiff’s enlistment is not admissible.

To prove this enlistment the plaintiff offered the following certificate :

‘Provost-marshall’s Office, 5th Dist. of Maine,

Belfast, Me., May 29, 1865.

I hereby certify that Samuel Atwood has this day been credited as a Recruit in the hlavy, to the town of Winterport, by order of the A. A. Pro. Mar. Gen’l of Maine.

A. D. Bean, Capt. and Pro. Marshall,

5th Dist. of Maine.’

The fact of enlistment is a matter of record. It must be proved by a duly authenticated copy from the army records. A sworn copy is admissible or a copy certified by the proper certifying officer. But the certificate offered is not, and does not purport to be a copy of any recorded fact, or of any record. It is the assertion of the person certifying that the fact therein stated is true. A mere certificate that a certain fact appears of record, without the production of an authenticated-copy of the record, is not evidence of the existence of the fact. Owen v. Boyle, 15 Maine, 147. The officer certifying should certify a transcript of the record.

The certificate does not show that the plaintiff has been ‘accepted as a soldier of the United States for the term of one year,’ or for what period of time he has been so accepted. He may, for ought that appears, have entered the service for a lesser period of time. The certificate, therefore, if without objection on other grounds, does not bring the plaintiff’s case within the vote of the town.

The ‘ bounty of three hundred dollars ’ was to be ‘ paid to the person enlisting.’ To entitle the ‘person enlisting’ to receive this sum, an enlistment, it would seem, must be shown. But none has been legally proved, though the objection was specially taken.

The certificate offered does not even state the fact of enlistment, though, perhaps, that might be inferrible, if this were the only objection.

If the enlistment appears in the office of the adjutant-general, there is no certificate signed by him in relation thereto, though such certificate would be admissible by R. S., c. 82, § 101.

Plaintiff nonsuit.

Cutting, Kent, Walton, Barrows, and Tapley, JJ., concurred.