Wayland v. Ware , 104 Mass. 46 ( 1870 )

Wells, J.

It is not controverted that James Davis, Jr., was duly enlisted and mustered into the military service of the United States during the recent civil war; and that he was at the time such a resident of Ware as to bring him within the operation of the Massachusetts statute of 1865, c. 230, § 1, provided he did in fact constitute a part of the quota of that town.

The act of Congress of 1863, c. 75, provided for enrolling and calling out the national forces; establishing enrollment districts and subdistricts; and assigning to the districts the number of men to be furnished therefrom, taking into consideration the number of volunteers and militia already furnished, so as “ to equalize the numbers among the districts of the several states, considering and allowing for the numbers already furnished as aforesaid, and the time of their service.”

The act of 1864, c. 13, § 2, provided that the quota of each ward of a city, town, &c., “ shall be, as nearly as possible, in proportion to the number of men resident therein liable to render military service, taking into account, as far as practicable, the number which has been previously furnished therefrom.”

Under these several statutes, it was held in Bridgewater v. Plymouth, 97 Mass. 382, that any one who, having previously enlisted as a volunteer, although discharged for disability, was taken into account in the subsequent assignment of its quota to the town from which he enlisted, was to be considered to have served as a part of the quota of that town.

It would make no difference if the number of volunteers ex-, ceeded the proportion due from the town, up to the time of assigning quotas; because that excess, being carried to the credit of the town, would reduce by the same number the quota to be assigned. Nor would an excess in the number subsequently furnished affect the consequences of the credit so given. If the credit was due to the town, it must be taken to have been allowed as of the time when due, although the formal adjustment or verification took place later.

That calls were made and quotas assigned to all towns, in-duding the town of Ware, need not be proved by documentary or other evidence, in a case like this. It is a fact of history, recognized and assumed by the very terms of the statute of 1865. The fact to be established, about which the difficulty arises in this case, is, that James Davis, Jr., was credited to the town of Ware in any assignment of its quota by the provost marshal.

The defendants contend that that fact can only be proved by the record of the provost marshal or war department, and that the evidence resorted to was secondary evidence, admitted without first accounting for the absence of the primary and best evidence.' But we do not think that the existence of such a record as this objection supposes is to be presumed. It is not required by the statutes of the United States; nor is it necessarily implied by the nature of the transaction in question.

Even if it were to be assumed that a record exists in the war department, showing not only the quota assigned, but the number and names of volunteers allowed to the credit of the town in assigning that quota, it does not follow that the fact may not be proved by other independent evidence. If the number allowed to' the credit of the town were known, or could be ascertained by comparison of its full proportion with the quota actually assigned as still due at any time, evidence that the same number, including Davis, had in fact previously enlisted from the town as volunteers, or had been claimed by the town as having so enlisted, in adjusting its quota with the officer having the duty of assignment in charge, would tend to show, and if uncontrolled would sufficiently show, that Davis was included in the credit given to the town. Such we understand to be the nature of the evidence admitted in this case. It does not bear the relation of secondary evidence to the supposed record of the provost marshal. It is independent evidence, to prove a fact which may exist in and be proved by a record, but which is not necessarily so to be proved.

But to make the chain of evidence thus resorted to complete, it was necessary to give force to a phrt of the testimony of Adjutant General Schouier, which was not competent as evidence ; to wit, that the table of credits made up by him was never allowed by the war department till after the year 1864 “ he understood that they afterwards allowed it in assigning quotes to towns, but he had no personal knowledge thereof.” This was the turning point of the case; and the report expressly finds that there was no evidence of what credits were given “unless the evidence of General Schouler aforesaid was competent to be considered thereon.” Upon this point it was merely hearsay, and the proof therefore fails. The instructions allowed the jury to consider as competent the whole of the testimony of General Schouler, including this statement upon hearsay.

The record kept in pursuance of the Sts. of 1863, c. 65 and c. 229, being of the character of a public record, is competent evidence, though, from its nature, not conclusive of the facts it is required to contain. 1 Greenl. Ev. § 556. Stark. Ev. (4th ed.) 289, 404. Its imperfect condition may affect the credit and weight to be given to it, but does not render it inadmissible. Sprague v. Bailey, 19 Pick. 436.

The ruling and instruction as to what constituted the disability intended by the statute was correct. It must be such disability, and such only, as operates to terminate the service within one year from the enlistment. Fitchburg v. Lunenburg, 102 Mass. 358.

The admission of hearsay testimony from Adjutant General Schouler, and the instructions to the jury in relation thereto, make a new trial necessary. Exceptions sustained.