Mower v. Allen , 1 D. Chip. 381 ( 1824 )

The case is fully and clearly stated in the opinion of the Court, delivered by

Skinner, Ch, J.

This cause is brought before the Court by writ of Error upon the judgment of the County Court of this County. From the record, it" appears that the action is trespass, for taking an ox, valued at 50 dollars. One of the defendants, Bateman, justifies the taking, &c. as orderly sergeant of a militia company, under a writ of execution, to him directed and issued, or the 3d of October, 1820, by Marcus Allen, Captain and commanding officer of the said company, upon an amercement imposed by said comma'nding officer upon Mower, the plaintiff, for delinquency of military duty. Replication, de injuria. Allen, the other defendant, under the general issue and notice, justifies on the ground that the plaintiff being subject to military duty, the defendant s" Captain and commanding officer of the company, amerced him t >r neglect of duty, and, as such commanding officer, issued the execution therefor. The first cause assigned for error is the admission in evidence of an irregular muster-roll. From the record it appears, tpat the defendants having on the trial shown in evidence, that the office of Captain in the company was vacant, and that Allen was Lieutenant, to show, that the plaintiff was a private, subject to do military duty in the company, and had been duly enrolled therein, offered a paper purporting to be a muster-roll, said to be irregular. The objection to its admission was overruled. The principle on which we rest the decision in this case, renders it unnecessary to notice the irregularity complained of.

The statute requiring the making of a muster-roll is directory to the officer; and the neglect cannot be taken advantage of in this way; nor will it excuse any member of the company from the performance of military duty. This statute has provided, that a warning for a company training shall be notice of the enrollment; and without "such warning no fine can be imposed. The muster-roll, therefore, was immaterial on the trial, as was the fact of enrollment. Showing the enrollment, however regular, would have no tendency, it is true, to establish the fact of Mower’s being subject to military duty in the company, but this was not the objection. If the fact of his being subject to military duty was material on the trial, and the record did not show that evidence was given of all that is required of the defendants in relation thereto, the question would merit a different consideration. It does not appear that Mower claimed to be exempt from military dutyj and if he did, the omis probandi would fall on him. , *

The second error assigned is the admission of the order for warning, and the return thereon. The objections are, that it had not been shown that Bateman, to whom it was directed as second sergeant, was such officer, and that his return does not show the time or manner of service. The law authorises the commanding officer to issue his order for warning to one or more non-commissioned officers, or, for want thereof, to one or more privates; and it is immaterial, and cannot be questioned by the private warned, whether he, to whom the order is given by name, sustains the office mentioned in the order or not. The law requires no return to be made upon the order, by the person to whom it is directed, though the return in form in this case lias been sanctioned by a long course of practice.

From these decisions, the Court are enabled to avoid a more careful consideration of the question as to the effect of the proceedings of a military tribunal in imposing fines. It may well be urged, that the Legislature has constituted militia officers Courts of competent jurisdiction to decide the question. An appeal lies, from the commanding officers of companies, to the regimental field officers, whose acts in the case are not ministerial, but judicial; and it would seem their decisions must be conclusive. It is fully established, that the judgment of a Court, having jurisdiction of the subject matter, cannot be, collaterally impeached. If a person amerced in a fine is aggrieved, his proper remedy is by appeal. A different course would be dangerous indeed to the officers of the militia, and in the end subversive of all military authority. Cowp. 315. 3 T, R, 125. 2 Bos. & Pull. 391. 3 Maul & Sel. 411. 7 T. R. 633. 12 East. 75. 16 East. 21,

The writ of execution is objected to on the gro'und that it does not appear that Allen was Captain; the same being signed by Marcus Allen, commanding ojlcer. The defendants justify under him; and he is described in their pleadings, as Captain and commanding officer. The record sh~ws that the office of Captain had been vacant; and the commission of Allen, as Lieutenant, also appears; therefore his authority to issue the execution is established, whatever may have been the defect in his commission as Captain.

It is also objected, that~Bateman, to whom the execution is directed, as orderly sergeant, was not such officer on the 3d day of October, 1820, the time of issuing the execution. The warrant to Bateman is dated July 3d, 1820: the oath administered by Marcus Allen as Captain, August 28, 1820: and the record in the of.~ flee of A~ljutant bears date March 2Sd, 1821. If it was necessary to the validity of the acts of Bateman, as sergeant, that he should have been sworn, there can be no doubt of the authority of Ahlen~ as Lieutenant and commanding officer of the company, to administer the oath, however he may have entitled'hiniself in the certificate thereof. The record, required to be made, of the issuing of the warrant, is directory to the Adjutant, and not material to the authority of the officer. The charge of the Court therefore must b~. approved, and judgment affirmed.