Howard v. Folger

The case was continued for advisement, and the opinion of the Court subsequently given by

Shepijsy J.

The defendant in error objects, that the record is not regularly before this Court, because the bill of exceptions was not seasonably tendered and allowed. It appears, that the trial before the magistrate took place on the 25th of November, 1837, There is no notice of any continuance, and the certificate of the magistrate upon the bill of exceptions states, that notice was given on the day of trial, that exceptions would be filed, and that he allowed and sealed them on the l4th of May, 1838.

It sometimes happens in practice, that the bill of exceptions is not completed until after the close of the session, but it should bear date as of the term, and is supposed to have been then made up in like manner as the records of the Court are, although written out afterward. The magistrate has Hot in this case conformed to that practice ; and the exceptions are irregularly here, unless the defendant is precluded from making that objection. The effect of the plea in nullo est erratum is, that this record as it is, is without error, and the party cannot allege that there is none before the Court. Meredith v. Davies, 1 Salk. 270. It is said, that the plea does not bind the Court, but the Court cannot be expected to seize upon such objections as arise out of a want of conformity to a well known practice of the courts.

The Captain of the company having been elected Major was commissioned as such on the 22d of August, 1837, but was not qualified to act by taking the oaths until the 4th of the next October ;. and the plaintiff in error contends, that the company was not legally ordered upon 'duty by the Lieutenant, because there was not a vacancy in the office of Captain. The act of March 8, 1834, <§ 10, provides, that'“ every person who shall be elected to any office as aforesaid and shall not within one hour after he shall have been notified of his election by the officer presiding thereat (excepting Major Generals) - signify his acceptance thereof, shall be considered as declining to serve, and orders shall be forthwith issued for a new choice.” The Captain must therefore have accepted very soon after he was elected, or he could not have been commissioned; and by being elected and accepting the office of Major he vacated that of Captain. This case differs from the case of Chapman v. Shaw, 3 Greenl. 372. The question theré arose upon the exercise of powers belonging to a different department of the government, under article 3, § 2 of the constitution. Before he could exercise the duties of a justice of the peace he must have taken the requisite oaths, and therefore the decision was, that one office was not vacated until he could exercise the other, being qualified for that purpqse.

For like reasons, it must be inferred that Pishon had accepted the office of Ensign, otherwise he could not have been commissioned as such; and he had been commissioned before the warrant issued to him to warn the men. The same act, § 21, provides that the commanding officer of the company “shall issue bis orders to some one or more of the non-commissioned officers or privates of his company requiring him or them to notify the men.” The testimony of such non-commissioned officer or private, “ unless invalidated by other evidence,” is made conclusive, that due notice was given. And he is subjected to a penalty of not less than one, or more than three dollars for each one, whom he shall neglect or refuse to warn. It appears to have been the intention of the legislature to appropriate the duties in such a manner, and to attach such penalties to the non-performance of them as effectually to compel those upon whom the duty was imposed to order out and warn the men. No commissioned officer’s testimony is made equally effectual to prove the notice; nor is it made his duty to give the notice, nor is he subjected to any penalty or delinquency for neglecting or refusing to do it. If the commander may issue his warrant to a commissioned officer, who will consent to assume the performance of the duty, the company may fail to be called out and yet no one bo liable to be punished for any neglect, and thus the intention of the legislature would be defeated. It is important that no such irregularities, as would impair the efficiency of the militia law, and allow a practice, by which the officers and men might evade it with impunity, should he allowed. In the case of the Commonwealth v. Cutter, 8 Mass. R. 279, the non-commissioned officer would have been responsible for the neglect, and the course permitted did not violate the spirit of the law or permit it to be evaded with impunity. The warrant must be regarded in this case as illegally issued to a commissioned officer, contrary to the letter and spirit of the law ; and the notices under it were unauthorized. It is only when a civil suit is pending, that depositions not in perpetúan are authorized to be taken. Appearing and putting interrogatories to the witness waives only objections to the form of the question, or the manner of examination, if not taken at the time, but does not preclude objections to the legal character of the testimony. Polleys v. Ocean Ins. Co. 14 Maine R. 141. The deposition was not legal testimony. As the judgment must be reversed for these causes, it is not necessary to decide upon the other errors assigned.

Judgment reversed,