Sawtel v. Davis , 5 Me. 438 ( 1828 )

Mullen C. J.

delivered the opinion of the Court,

By the record, which has been certified to us by the magistrate be. fore whom the original action was tried, it appears that he rendered judgment in favor of the defendant; and upon inspection of the exceptions filed on the day of trial, and duly allowed, we are to determine whether there is error in the proceedings. The 6th sect, of the act of Congress which is recited by way of preamble to the act of Maine, St at. 1821, ch. 164, declares that there shall be an Adjutant General appointed in each State, a part of whose duty it shall be “ to furnish blank forms of different returns that may be required, and to explain the principles on which they should be made.” The 12th sect, of said act declares it to be the duty of the captain or commanding officer of each company “ to keep a fair and exact roll of the company,, together with the state of the arms and equipments belonging to each man; which roll he shall annually revise in the month of May, and correct the same from time to time, as the state of, and alterations in the company may require.” The section enumerates many other duties which he is directed to perform ; but, in the present case, it is not important to notice them. In the form furnished by the Adjutant General, as the form of a return of an enrollment, there is a column, designated as the one in which the time when any citizen shall be enrolled shall be entered; and another column in which the time of a citizen’s disenrolment shall be entered. So also in the form of the record of the roll, a column is provided, in which the “ time of additional enrolments, made after the Tuesday following the second Monday of September,” is to be inserted. The evident object of these provisions is to prevent all mistake or misrecollection, by preserving the evidence of facts in writing. These forms thus furnished are to be considered as binding as though they had been contained in the act itself; and it is the duty of all concerned to conform to them. By examination of the record before us, it appears that the plaintiff offered as evidence, a list of names called “ Company Roll,” certified by the clérk as a correct one, and on which was borne the defendant’s name; and offered parol evidence, to shew that his name had been recorded on the list, four days, at least, before the day of inspection; and that the corrected roll of the company, which was produced with the name of the defendant thereon, was made by transferring tq it the names found on the list. This parol evidence so offered, was rejected as inadmissible to prove an enrolment, and to this decision of the justice, the exception was' filed. Why was this parol evidence necessary ? Because the clerk had omitted his duty by neglecting to record the day when the defendant was enrolled. By the document offered in evidence, it did not appear that he had been enrolled so long as to be liable to do military duty in the company; and yét by law, the day of his enrolment should have been recorded, according to the form prescribed by the Adjutant General. A man is not permitted in a court of justice to take advantage of his own wrong or neglect of duty. Our bpiniqp is, that the parol evidence offered, was not admissible to prove a legal enrolment. The decision of the justice was given upon the offer to introduce the list or company roll, accompanied by parol testimony to show a fact as to the time of enrolment, which ought to have appeared in the appointed column. We think his decision was correct. There is no error in the record, and accordingly the judgment is affirmed with costs for defendant.