Cate v. Nutter

24 N.H. 108

• Court: Superior Court of New Hampshire
• Decided: December 15, 1851
• Status: Published

Opinion

Woods, J.

The objection that the company book of records was not competent evidence of the issuing of the company order, and of the service of the notice upon the defendant, cannot be sustained. The statute makes a copy of the record of such order, and of the return, under oath, of the sergeant or private thereon, who may have delivered the notice to the party warned, certified by the clerk, competent evidence of “ due notice of enrolment and of such parade.” Rev. Stat., chap. 78, § 3.

By the statute, also, it is made the duty of the clerk of a company to keep an orderly book, and to record therein all orders and official communications received or issued by his commanding officer. Rev. Stat., chap. 89, § 1. And it has been decided by this court, that a copy of record, certified by the clerk, of any order received or issued by the captain, is, upon general principles, admissible in evidence upon the trial of a prosecution for a military fine. State v. Wilson, 7 N. H. Rep. 543.

If the copy of the record be competent evidence of the facts in question, the original record cannot be regarded as evidence of a less satisfactory or less authentic character. Jones v. French, 2 Foster’s Rep. 64. The roll of delinquents in the orderly book kept by the clerk, is made, by express statute, evidence of the delinquency of the party. Rev. Stat., chap. 82, § 1. And by the same section, other evidence relating thereto is admissible ; and we think parol evidence is included in the provision. But we are not aware that the records of the clerk are conclusive evidence of the facts recorded. And we are of opinion, that, although the record is prima fade evidence of the facts contained in it, nevertheless, the original order, offered in evidence, was admissible also, for the purpose of rebutting the evidence afforded by the record; or, in other words, of impeaching it, to the extent, at least, of showing that the record is not a correct copy of the original. The original order of the captain to the clerk must afford evidence of its own contents, of as high and conclusive a character, at least, as the record of it.

No doubt is entertained that it was competent for the defendant to have shown the form and character of the notice that was served upon him., And, when shown, it would have appeared to have been a notice, not addressed to the defendant, or to any one else, by name. The notice is required to be either written or printed. Rev. Stat., chap. 78, § 2. And we think the notice must be addressed to the person by name, who is to be notified. The delivery of the notice to the party will not be regarded as sufficient, unless it is thus addressed to him. He is not to be left to infer from the fact that the notice is delivered to him, that he is a person duly enrolled and intended to be notified to perform military duty. By what name is he to understand that he is enrolled ? And if he be not in fact enrolled by his proper name or designation, can he be considered as enrolled at all ? A notice that is sufficient when delivered to a party, is equally sufficient if it were left at his usual place of abode. But how could a notice, left at one’s usual place of abode, containing the address of no one, be considered a proper and legal notice, such as the statute contemplates ? We have no hesitation in holding that the notice in this case was not such an one as the party was entitled to.

The evidence offered by the defendant at the trial, and rejected by the court, we think should have been admitted.

The limits of military companies, intended by chap. 77, § 1, and chap. 84, § 1, Rev. Stat., are territorial. Jones v. French, 2 Foster’s Rep. 64; Perry v. Dover, 12 Pick. 206. The recorded limits, shown by this case, are of that character. All the hundred acre lots in Barnstead, except one range on the northeasterly end of said lots, are made to constitute the territory within which the persons shall reside who shall be enrolled in the second company of infantry, and the remaining part of said town was made to constitute the sixth company of infantry. By “ the remaining part of said town,” was clearly meant the remaining territory of the town, excepting that part which was included within the limits of the second company. Upon the face of the record, the whole town appears to be divided into two companies, having for their limits well defined geographical boundaries. That is sufficient. Whether the copy of the record given in evidence was competent proof of the facts contained in it, and of due authority to establish the limits of the companies, we need not now inquire. Nor is it necessary to inquire into or decide the other questions in this case not already considered.

The verdict must be set aside, on account of the rejection of the evidence offered on the part of the defendant.

Verdict set aside.