Terrell v. Town of Colebrook

35 Conn. 188 | Conn. | 1868

Butler, J.

We are all of opinion that the defence in this case cannot be sustained.

1. The parol evidence offered to prove the desertion was that of private soldiers, of the company in which Terrell enlisted. As primary evidence that ought not to have been received. Terrell was under the control of superior officers, who kept records for the company and regiment, in which the fact of desertion, if actual, was presumptively recorded. It is the practice of the government to keep those records in the war department at Washington, and a sworn copy can always be obtained. It is also well known that soldiers are detailed by their superior officers to serve as spies or detectives, leaving the service as apparent deserters. The thrilling history of Champe, who was so detailed at the instance of Washington, in the ‘Revolutionary war, is familiar to all. Such details were frequent during the rebellion. It is obvious therefore that in a case like this, the general rule, that the best evidence must be produced, especially as that evidence existed of record, should have been applied, and the offered evidence excluded.

2. We are also of opinion that the town received all the consideration for the note contemplated by the vote. The purpose therein stated is single and clear, viz : “ securing volunteers for the United States service, equal in number to the town’s quota, as in duty bound, and whereby a draft in the town may be avoided.” This purpose was fully answered when the volnnteer enlisted and was accepted. The quota was so far forth filled, and the draft so far forth avoided. That the engagement on the part of the volunteer, so far as contemplated, was thereby fulfilled, and no longer executory, is further apparent from the fact, that the bounty was then to be fully paid in cash, and no further stipulation was required. Terrell then, as soon as he had enlisted and was accepted, was entitled to the bounty in cash, and the giving of the note by the selectmen, and the cashing of it by the plaintiff, were matters of accommodation to the town. And it would be gross injustice to the plaintiff to make the collection of the note depend upon a contingency not then contemplated by any of the parties. The cases cited from Pennsylvania have been examined. They differ in essential particulars from this, and are not applicable as authority.

The Superior Court is advised to render judgment for the plaintiff.

In this opinion the other judges concurred.