10 Johns. 100 | N.Y. Sup. Ct. | 1813
The facts in this case furnish no colour for the action. If Arrnstromg was a delinquent member, it was the duty of the captain to return him as such, and he would have subjected himself to grievous penalties if he had omitted this duty. (Sess. 32. c. 165. s. 65.) Armstrong remained as a member on the company roll which the captain had received from his predecessor, and it was not for him, but for the court-martial, to judge of the validity of the assumed discharge. Armstrong was entitled to have made his defence, and it is to be presumed he had due opportunity to make it, before the court-martial, and if he could have shown that he was no longer a member of the company, he would have been acquitted and not fined. The decision of the court-martial is conclusive that Ferris had not made a false and malicious return of him, as a delinquent. But it was admitted that the certificate of Scudder was of no effect or validity, for want of the signature of the colonel; and upon inspecting the acts relative to the regiments of artillery in the city of New-York, and particularly the act of 27th March, 1807, (c. 71.) organizing the regiment of artillery to which Armstrong belonged, it would seem to be the better opinion, that he was not entitled to his discharge. However, it is not necessary, in this case, to decide that point. It is sufficient that Armstrong had not obtained the requisite signatures to render his certificate valid; and that the'competent tribunal adjudged him a delinquent.
Judgment reversed.
