Hall v. Inhabitants of Falmouth , 59 Me. 421 ( 1871 )

Walton, J.

We think the plaintiff’s evidence was fatally defective. The burden of proof was upon him to show, not only that he-was drafted, but also that he was examined by the surgeon appointed by the United States, and pronounced an able-bodied man.

Such are the very terms of the vote under which he claims to recover. .And it was not only competent for the town to annex this condition to their vote, but it was highly proper and important’ for them to do so. For if a man drafted was not able-bodied, he would not be required to serve himself or furnish a substitute or pay commutation. And if he was under no obligation to do either of these, there would be no reason in voting him three. hundred dollars. A draft, which, by reason of physical inability, created no liability, would furnish no ground for claiming aid from the town.

The plaintiff’s evidence was, therefore, fatally defective in not showing that he was duly examined and pronounced an able-bodied man; and the nonsuit was properly ordered.

The failure to show a compliance with this important condition of the vote under which the plaintiff claims, may have been an oversight. But if so, it is one which we have no power to rectify. The case was tried in the superior coúrt and is before us on exceptions. We can only judge of the correctness of the ruling by what appears in the record. Looking at the record, the nonsuit appeal's to have been properly ordered, and the exceptions must, therefore, be overruled. Exceptions overruled.

AppletoN, C. J.; Kent, and Daneortii, JJ., concurred. Barrows, J., concurred in the result.