Hill v. Turner

The opinion of the Court was by

Shepley J.

There was but one cause of action stated in the writ. The time when the neglect of duty occurred was erroneously alleged, and this error was allowed to be corrected. That did not introduce a new cause of action. It only reformed the statement of the one in suit. And the amendment was properly allowed.

It was decided in the case of Potter v. Smith, 2 Fairf. 31, that the record of the roll was evidence of the enrollment.

When the enrollment is made a sufficient time before a soldier is called upon to do his duty, it is not necessary, that the date of his first enrollment should be stated upon every correction of the roll. When additional enrollments are made after the first Tuesday in May the time should be stated. The plaintiff in error having been enrolled in 1836 was a member of the company, and the date of his enrollment need not be proved. Carter v. Carter, 3 Fairf. 285.

The certificate of the surgeon respecting his bodily infirmities was given after the neglect charged, and it could have no effect upon the case. Whether he was an able bodied man and liable to be enrolled was a question of fact to be decided by the magistrate, and his decision was conclusive. It is not brought before this court for revision by a writ of error.

Judgment affirmed with costs.