19 N.H. 296 | Superior Court of New Hampshire | 1848
The first question which presents itself, re
The Revised Statutes, ch. 93, § 8, prescribes the mode in which such officers shall be elected, and prescribes, further, that they “ shall have warrants, under the hand of the captain, countersigned by the clerk, and recorded in the orderly book of the company.” Such a warrant the plaintiff had. It was under the hand of the captain, and countersigned and recorded by himself, as the clerk of the company. The effect of this is to make his own acts evidence in his own favor, and to enable him, by his own certificate, to make proof of his title. But this is a necessary, and by no means an unusual consequence, and generally takes place in cases where the recording officer derives his authority from the constituency whose doings he records. And it was held in Briggs v. Murdock, 13 Pick. 305, that it was competent for a town clerk to make a record of his own appointment and qualification, from the necessity of the case, and that such record, or a copy, was competent evidence.
The effect of the warrant itself, when regularly authenticated, became the subject of discussion, in the case of The State v. Leonard, 6 N. H. Rep. 435; and it was there held, that it was in the nature of a commission, and as such, the proper evidence of the official character of the party holding it. The case was like the present, except that the law at that time required the warrant to be signed by the colonel, which it now requires to be signed by the captain, and must be regarded as having settled the precise question here presented. The necessary conclusion therefore is, that the warrant was executed and recorded in due form, and constituted the proper evidence that the plaintiff held the office of first sergeant, by virtue of which he performed the acts which laid the foundation of this action, and in virtue of which he seeks to maintain it. If there were any proper evidence that Melendy held the office in 1845, this warrant operates to remove him, and to create the vacancy ; the office being
It is objected, further, that no competent proof was offered of the due and seasonable enrolment of the defendant. The roll of the company, given in evidence, purported to be the roll of the company, as revised in April, 1846, and after-wards corrected from time to time. The defendant’s name was borne upon the roll; but it is objected, that'it does not appear whether his name was in fact upon the roll before, or at the time of the training, or when it was placed there ; and that for anything that appears, it may have been placed there since.
Company orders, however, were issued for the training, which bore date, May 14, 1846, and the defendant’s name was in the orders, and he was duly warned to appear at the time and place of training.
In Gale v. Currier, 4 N. H. Rep. 169, it was held that the roll of the company of militia is the best evidence of the enrolment of its members, and the insertion of the name of a private, in the orders issued to warn the company, has been decided to be prima facie evidence of his enrolment. State v. Wilson, 7 N. H. Rep. 543. And it is provided by chapter 77, section 3 of the Revised Statutes, that every captain, with the assistance of the clerk, shall enrol each person by law liable to do military duty, who shall reside within the bounds of his company, and that the insertion of the name of such person in any company orders, or its annexation thereto, shall in all cases be evidence that such person is duly enrolled. No doubt, then, can exist, that by force of the statute provisions, united and in accordance with the law as decided in the cases referred to, the evidence offered in this case was competent and sufficient evidence of the enrolment of the defendant, at least as early as the fourteenth day of May, 1846, the date of the orders to warn the
It did appear, then, by competent proof, that the name of the defendant was on the roll prior to the time of training, and seasonably, to wit, on the day on which the orders for the training were issued. This objection, therefore, cannot prevail.
Was the defendant shown to have been a member of the Nashua Guards, or of the Brookline Guards, at a time to have exempted him from the effects of this enrolment ?
The case finds that there was no notice of his enlistment in either of those companies, to the captain of the ninth company, or to the captain of any other company. This notice is distinctly required in all cases, in order to discharge a private from liability to duty in a militia company. Rev. Stat. eh» 84, § 4. There must therefore be
Judgment on the verdict»
