Gale v. Currier

4 N.H. 169 | Superior Court of New Hampshire | 1827

The opinion of the court was delivered by

Richardson, C. J.

The seventh section of the statute of December 22, 1820, entitled an act for forming, arranging and regulating the militia, provides that the first sergeant shall be clerk of the company ; and thfe forty-third section of the same statute enacts, that “ the first sergeant of each company shall keep an exact roll of the company together with the state of the arms, &c., which roll he shall annually revise in the month of April, and correct the same from time to time as the alterations in the company may require.” It is also enacted in the fourth section of the statute, that each and every person liable to do duty “ shall severally and respectively be enrolled in the militia and that “ any legal notice or warning to the citizen enrolled as aforesaid to attend a company or regiment-tal muster or training, shall be a legal notice of his en-rolment.” And it is further provided in the forty third section, that if any noncommissioned officer or private shall in due course of law be convicted of any infamous crime, he shall be forthwith disenrolled from the militia.” In the enacted form of the information in the fiftieth section, it is alleged that the respondent u being duly enrolled in said company,” neglected, &c.

It is very apparent from these provisions in the statute, that it is a legal enrolment which makes a citizen a member of a company and subjects him to the command of the officers ; and that without such an enrolment he cannot legally belong to the company, nor be liable to do duty in it.

It is equally clear, that the roll of the company is the best evidence of an enrolment, and that other evidence of the fact is inadmissible until a good reason can be shown why the roll is not produced.

In this case the roll was not produced nor was any excuse offered for the nonproduction of it, of course there was no legal evidence that the respondent was liable to do duty in the company. The verdict must be set aside and J). new trial granted.