Lowell v. Flint , 20 Me. 405 ( 1841 )

The opinion of the Court was by

Shepley J.

Several of the errors assigned in this case have been decided in the former case between the same parties, ante, p. 401. The fifil error in this, is the same as the fourth in the former case, that written notice of the enlistment was not given to the commander of the standing company,'’within five days. But the testimony of the clerk, as stated in the record of the former case, differs materially from that so stated in this case. The evidence of the clerk is here stated to be “ that he had no doubt that he did notify the said commanding officer within five days, but could not swear positively that he did, but he could not state said notice was in writing.” And the record states that, it was objected to as insufficient, “ but it was admitted as sufficient to show such notice.” This testimony would authorize the conclusion, that notice was given, but not that it was in writing. There was nothing from which such an inference could be drawn, for the clerk testified that he could not state that it was in writing. In the former case, he is reported to have testified, “ I have no doubt 1 gave the notice in writing within five days after the enlistment of said Lowell, but cannot swear positively.” And he also stated that he never gave any notice except in writing. When there is sufficient testimony, although there may be other and conflicting, to authorize the conclusion of the magistrate, his decision upon the fact is conclusive.

In this case, as before stated, there was no testimony, that could authorize the conclusion, that a written notice was given.

Judgment reversed.