Cutter v. Tole , 3 Me. 38 ( 1824 )

WestoN J.

delivered the opinion of the Court as follows.

Several objections are made to the verdict in this case ; — first that the release of the interest of Charles JllcUn, the captain, who was admitted as a witness, was insufficient; no consideration being expressed in the release. But every deed imports in itself a consideration, and no contract or agreement made by deed is ever regarded as nudumpactum. Plowden 809.

It is further urged that it does not appear that the plaintiff was duly appointed or sworn, as clerk pro tern. The certificate of his appointment, bearing date May seventh 1822, on the back of the plaintiff’s warrant as sergeant, is expressed in the past tense ; but in our opinion sufficiently indicates that he was then appointed and sworn, and that the law has been substantially pursued. It is insisted that by law the time should be distinctly expressed for which fíe was appointed, but this may be considered as done by the use of the words pro tem. by which his authority is continued only during the inability or absence of the standing clerk.

Another objection taken is, that the plaintiff cannot maintain this action ; as his authority had ceased prior to its commencement. This fact does not appear in the case ; the captain testified that the standing clerk was absent on the day of the training; but there is no evidence that he has ever yet returned.

The surgeon’s certificate, read at the trial, clearly constituted no defence, not being conformable to the requirement of the revised statutes chap. 164, sec. 35, it neither stating the nature of the infirmity, nor having been allowed and signed by the commanding officer of the company, or countersigned by the commanding officer of the regiment or battallion.

It is lastly contended that the defendant, having a sufficient excuse, seasonably made it to the lieutenant, and was by him lawfully excused. If the lieutenant was competent to excuse, this point would be decisive in favor of the defendant. By the 32d article of the 45th section of the militia law befo,re cited, the commanding officers of their respective companies may excuse any non commissioned officer or private for non-appearance, upon satisfactory evidence of his inability to appear ; provided the excuse be made within the time limited. The sixteenth section of the same law provides, among other things, that whenever the office of captain shall be vacant, the officer next in grade and in commission shall exercise the command. But the office of captain was not vacant, that officer being in the full exercise of his áuthority. He had removed his residence out of the bounds of his command, but that did not even entitle him to his discharge, unless he had removed to such a distance that, in the opinion of the Major Genera], it would be inconvenient for him to discharge the duties of his office. Sec. 45, art. 9, of the law before cited. The lieutenant therefore, at the time the excuse was made and allowed by him, cannot be regarded as the commanding officer of the company; and unless he was, his allowance of the excuse cannot avail the defendant.

The exceptions in this case are overruled, and there must be

Judgment on the veftñct.