Avery v. Butters , 11 Me. 404 ( 1834 )

Parris J.

It was incumbent on the plaintiff to prove that the defendant was liable to perform military duty, in the company of which the plaintiff claims to be clerk. To do this, he must necessarily shew that the defendant resided within the bounds of that company. The statute of 1832, chap. 45, sect. 4, provides that the commission Of the captain or commanding officer of any company, shall in all actions for the recovery of fines, &tc. be deemed sufficient evidence of the organization of such company. But the commission cannot afford any proof of the extent or Km-its of the company. It contains no description of bounds or monuments; and from it nothing can be determined as to the extent of the authority which it purports to confer. That must necessarily be shown by other proof. Whitmore v. Sanborn, 8 Greenl. 310. Suppose a case -a commission is produced appointing an individual captain of the south company in Bangor. Will not the clerk of that company, in prosecuting for a fine, be required to prove the limits of the south company in Bangor, and that the person prosecuted resided within those limits, and was liable to enrolment ? Most clearly he will. But the captain’s commission will not advance him one step in such proof. He must rely upon evidence of a more certain and definite character ; and in conformity with general principles, w'ill be required to exhibit the best, wdiich the nature of the case will admit of. And what is that ? A copy, properly authenticated, of the record of the doings of the Governor and Council, by which tito company W'as formed and its local limits prescribed. This, according to W'ell established principles, is indispensable, unless it be first shown that there is no such record to be found. That record is presumed to be in the archives of Massachusetts. A copy of it w'as, no doubt, regularly transmitted through the several grades of division, brigade and regiment, at the time of the organization of the company, and ought now to be on the records and files of each. From the evidence in the case there is reason for believing that it cannot be found except on the original record in Massachusetts. No search has been made there ; no diligence used to procure a copy from thence, or to ascertain w'hether there be any original record of the establishment of this company in existence. The presumption is, that an examination in either of the offices of the Secretary or Adjutant General of Massachusetts, would, at once, have put at rest this question relative to the bounds of the company. If there be a record, as there probably is, that must and ought to govern. If the record be lost by time or accident, the secondary evidence, which, in this case, is very strong, would be admissible. But however convincing the secondary evidence may be, it cannot be received, it ought not to be heard, unless it be first shown that the record evidence cannot be obtained. The landmarks of the law must be preserved; and although this is not a case of great magnitude, still the consequence of disturbing a legal principle, so wholesome and well settled as the one we are now applying, might be most disastrous. We have not been referred to any case, neither have we been able to find any, where evidence of an inferior nature, which supposes evidence of a higher nature in existence and which may be had, has been admitted; but on the contrary, the cases are numerous and uniform where such inferior evidence has been excluded until it was shown that the higher evidence could not be obtained. Sevey’s case, 6 Greenl. 118, and Battles v. Holley, ibid. 145, are both corroborative of this principle, as, in each, the inferior evidence was admitted on the ground that the record evidence could not be procured. See also, 1 Phil. Ho. 177 ; 3 Stark. Ho. 1163; Rhind v. Wilkinson, 2 Taunt. 231. In Dillingham v. Snow, 3 Mass. 216, where secondary evidence of the existence of a parish had been received, the Court say, “ If better evidence of the existence of the North Parish, and of the plaintiff’s relation to it, were not to be had, the proof relied on by the defendants, was legal and sufficient. But it is not necessary to decide conclusively on this part of the case, because in the event of a new trial, the plaintiff may have the benefit of his objection.” A new trial was ordered, and the defendants, in order to lay the foundation for secondary evidence of the existence of the Parish, proved by a certificate from the Secretary of the Commonwealth, that no act of incorporation could be found. The Court charged the jury, that the best evidence had been offered, which the nature and circumstances of the case would admit, if no act of incorporation by the Legislature could be found, and that the questions of fact, for them to find, were, whether there was a Parish, and whether the plaintiff was proved to be an inhabitant within the bounds of it. Upon this ruling and charge, Parsons C. J. in giving the opinion of the whole Court, says, “ It appearing from the regular evidence that no act of incorporation could be found, the Judge very properly, in our opinion, permitted the defendants to prove a Parish by reputation.” 5 Mass. 552. In Stockbridge v. West Stockbridge, 12 Mass. 400, it became material to prove the incorporation of the latter town. The Court say, “ records, generally, are to-be proved by inspection, or by copies properly authenticated ; but if there he sufficient proof oj the loss or destruction of a record, much inferior evidence of its contents may be admitted. The act of incorporation is not to be found, nor can any record relating to it be discovered in the Secretary’s office. From the facts, however, the presumption is violent that the town has been regularly incorporated, and that the record has been in some way lost or destroyed. This then being satisfactorily proved, secondary evidence of the incorporation of the town is clearly admissible by the rules of evidence.”

The original record of the establishment of this company is presumed to be in the office of the Secretary of the Commonwealth of Massachusetts. The company could not have been legally organized previous to 1820, except under the authority of the Governor and Council of that State. The proceedings of that body, in such cases, are duly recorded by the Secretary, and there is no reason for believing that this record has been lost or destroyed. In addition to this, the Secretary furnishes the Adjutant General with an attested copy of this record, which becomes matter of record in his office, and on which is predicated the general order for carrying the doings of the Governor and Council into effect. Here, then, are two public offices, in each of which the record of the establishment of this company is presumed to be deposited, and neither of which have been examined, nor does it appear that any application has been made to either for an authenticated copy. Under such circumstances, we think the secondary evidence is pot admissible.