gave it as his opinion that the plaintiff in error was entitled to the evidence offered before the justice upon the trial, аnd that this having been refused, the judgment of the justice. was erroneous, and ought to be reversed.
This is a writ of error brought to reverse a judg ment of a justice of the peace in favor of the clerk of a company of militia against the plaintiff in error, for the fine, imposed by law, for not appearing on the military parade, to perform his duty as a soldier, according to the warning which he had received.
The record is long, and, in many parts, not very intelligible. Many pоints have been made, and ably argued under the assignment of errors, on which it .is unnecessary, in my opinion, to decide, because there is one which is conclusive on the merits.
The Court is informed judicially that on the trial, the plaintiff in
It appears that the evidence, that the plaintiff in error was prevented from, attending on thе parade by reason of bodily infirmity, was rejected on the idea that he could not avail himself of that excuse, unlеss he had previously obtained such a certificate as is mentioned in the 12th sect, of the act of March 4, 1800, (stat. 1799, c. 73.) The words of that section are, “ That from and after the passing of this aсt, no non-commissioned officer or private soldier, belonging to any company of militia in this commonwealth, shаll be exempted from military duty on account of bodily infirmity, unless he shall obtain a certificate from the surgeon or surgеon’s mate of the regiment to which he belongs, if either of those officers are appointed in the regiment; if nоt, from a reputable surgeon or physician, living within the limits of the same, that he is unable to do military duty by reason of bodily infirmity; the cause of which is to be described in said certificate, and the officer commanding said company may, upon the back of said certificate, discharge the person named therein from doing military duty in said company, for such term of time as he shall judge reasonable; which certificate, if approved and countersigned by the officer commanding the regiment, battalion, or squadron to which said disabled person belongs, shall entitle him to a full exemption from military duty foi the term therein specified.”
* Although it is understood that the opinion of the justice who tried this cause is nоt singular, yet, to my judgment, nothing is more clear than that the exemption, contemplated by the act, which is to be the еffect of this certificate, is to be commensurate with the infirmity which induces it, and is to continue for a length of time; and nоt an exemption which is to endure only for a single day. This is apparent, not only from the common sense and reason of the subject, but also from the words of the statute.. What else can be the meaning that the certificate shall operate “ a full exemption from military duty for the term therein specified ? ” What is the meaning of being exemptеd from military duty ? Could it have been the intention of the legislature that a man not able-
The evidence offered was rejected by the justice because, in his opinion, the law had provided a specific mode of proof. This is cleaHy an error, grounded on a misconception of the act of March 4, 1800, (stat. 1799, c. 73.) The justice seems to have thought that the 12th sect, of that act extends to аll cases; to particular as well as general inability. * But it relates to exemptions for a term of time, which arе to be expressed in the certificate ; and it would be unreasonable to extend it to particular instancеs of inability. The 20th sect. of the act of June 22, 1793, which has been mentioned in the argument, goes only to -stopping the cleric from prosecuting in certain cases. But if there be a prosecution, there is to be а trial; there can be none if the judgment of the justice,in this case is right. If the justice is not to try the cause, and has nothing to do but to issue his wаrrant of distress, why is the cause brought before him? Why does the law authorize the party complained of to apрear, to plead the general issue, and give any special matter in evidence ? All this trouble might be saved, and the officer issue the warrant of distress himself. I am clearly of opinion that the evidence offered ought to havе been admitted, and that the judgment must be reversed.
Judgment reversed.
The counsel for the plaintiff in error moved for costs; but the Court said they never gave costs upon reversal of judgments, for errors in law.
The Court directed their clerk to enter the reason of thе reversal on the record, as follows, viz. “ Because it appears to the Court here that the said justice rеfused to admit a surgeon and surgeon’s
Notes
Vide post, vol. xi. 540, Commonwealth vs. Fitz Acc.