| Me. | Jun 15, 1839
The case was continued for advisement, and the opinion of the Court subsequently given by
The defendant in error objects, that the record is not regularly before this Court, because the bill of exceptions was not seasonably tendered and allowed. It appears, that the trial before the magistrate took place on the 25th of November, 1837, There is no notice of any continuance, and the certificate of the magistrate upon the bill of exceptions states, that notice was given on the day of trial, that exceptions would be filed, and that he allowed and sealed them on the l4th of May, 1838.
It sometimes happens in practice, that the bill of exceptions is not completed until after the close of the session, but it should bear date as of the term, and is supposed to have been then made up in like manner as the records of the Court are, although written out afterward. The magistrate has Hot in this case conformed to that practice ; and the exceptions are irregularly here, unless the defendant is precluded from making that objection. The effect of the plea in nullo est erratum is, that this record as it is, is without error, and the party cannot allege that there is none before the Court. Meredith v. Davies, 1 Salk. 270. It is said, that the
The Captain of the company having been elected Major was commissioned as such on the 22d of August, 1837, but was not qualified to act by taking the oaths until the 4th of the next October ;. and the plaintiff in error contends, that the company was not legally ordered upon 'duty by the Lieutenant, because there was not a vacancy in the office of Captain. The act of March 8, 1834, <§ 10, provides, that'“ every person who shall be elected to any office as aforesaid and shall not within one hour after he shall have been notified of his election by the officer presiding thereat (excepting Major Generals) - signify his acceptance thereof, shall be considered as declining to serve, and orders shall be forthwith issued for a new choice.” The Captain must therefore have accepted very soon after he was elected, or he could not have been commissioned; and by being elected and accepting the office of Major he vacated that of Captain. This case differs from the case of Chapman v. Shaw, 3 Greenl. 372. The question theré arose upon the exercise of powers belonging to a different department of the government, under article 3, § 2 of the constitution. Before he could exercise the duties of a justice of the peace he must have taken the requisite oaths, and therefore the decision was, that one office was not vacated until he could exercise the other, being qualified for that purpqse.
For like reasons, it must be inferred that Pishon had accepted the office of Ensign, otherwise he could not have been commissioned as such; and he had been commissioned before the warrant issued to him to warn the men. The same act, § 21, provides that the commanding officer of the company “shall issue bis orders to some one or more of the non-commissioned officers or privates of his company requiring him or them to notify the men.” The testimony of such non-commissioned officer or private, “ unless invalidated by other evidence,” is made conclusive, that due notice was given. And he is subjected to a penalty of not less than one, or more than three dollars for each one, whom he shall neglect or refuse to warn. It appears to have been the intention of the legislature to appropriate the duties in such a manner, and to attach such penalties to the
Judgment reversed,