Draper v. Bicknell

1 Super. Ct. Jud. 164

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1765
• Status: Published

Opinion

THE Question in this Case was, whether a Man, having been only on the Alarm-List for a Number of Years past, could be from thence fo transferred by a general Warning from a Sergeant, or Notification, as to make him liable to the Penalty of the Law for Non-Attendance. (²)

Mr. Trowbridge.

’Tis found in the Verdict that Bicknell had been on the Alarm-List. Now, will such general Warning at once bring him into the Train-Band-List? This, I take it, would be extending the Power of Officers beyond all Bounds. In such Case no Man is safe; for when a Man is on the Alarm-List, he is presumed exempted from Training. Now, after this, how unjuct is it, by such a general Warning, to clap him on the Train-List and make him liable to so heavy a Fine! It is putting it in the Power of every Officer to distress his Neighbours, who from long legal Exemption have thought themselves not liable to be transferred without special Notice; and never was it till now pretended such Transfer could be made by such general Warning. Your Honours will therefore be cautious how such an arbitrary and unjuct Precedent is made.

Mr. Gridley.

’Tis by Martial Law that every Person is obliged by such Warning to attend, unless exempted. Some Exemptions are only temporary, and they have not shewn whether theirs is of this Kind or not. If they absent themselves without being legally exempted, they must bear the Consequences.

Judgment for the Plaintiff. (³)

2 (2) The Special verdict found as follows : —

“ That in the year 1754, Japheth Bicknell, the plaintiff in review, was “ returned to the Governour as a soldier upon the Alarm-List of the Third “ Military Company in the town of Attleborough. That afterwards, in “ the year 1757, the said Japheth was duly warned to appear as a trained “ band soldier at what was called a little training, which preceded the “ General Muster of said Company, and also to appear at said General “ Muster; and that his name was called among the trained band sol- “ diers at both training and General Muster, and that he did not appear “ at either. They further find, that some time before said little training, “ the Captain of said Company declared that the said Japheth should be “ upon the trained band list; but whether such declaration was made “before said warning or not, doth not appear. And if, upon the “ whole,” &c.

The notification to appear, of which a copy is on file, is as follows : —

“ Mr. Japheth Bicknell,—

“You, being a Training Soldier in the Company of Militia, under “ the Command of Capt. John Stearns, are hereby required in his “ Majesty’s Name to appear at your Colours upon Tuesday the 22d of “March next, at the Meeting House in the first Precinst, at nine “ o’clock in the Morning, on the second Beat of the Drum, with Arms “ compleat, according to law; Whereof you are not to fail; it being “ according to an Act of the Great and General Court or Assembly of “ this Province requiring the same upon a penalty of paying the Sum “ of twenty Pounds for Non-Appearance.

“ Attleborough, February 1757. James Pullen.”

The act referred to was that of 1757 by which the Province provided for railing 1800 men to serve under Lord Loudoun against the French; and the muster, for non-attendance upon which fo heavy a fine was imposed, was held for the purpose of raising the above force, “ either by inlistment or impress.” It appears by the papers on file, that the absent Bicknell was drawn for the expedition, but was afterwards excused on account of being “ blind with the right eye.”

3 (3) The action here reported appears by the record to have been “ a plea of review of a plea of review of a plea of debt,” — the second review “ being authorized by an order of the Great and General Court.” The case seems to have been obstinately contested through several years. On the first trial in the Inferior Court, the plaintiff had judgment. The defendant appealed and succeeded in obtaining a reversal. The plaintiff then brought his review, and obtained a second judgment. The subsequent history of the case is recited as follows, in the defendant’s petition for the order abovementioned:

-“ Your petitioner manifestly made appear to this Honourable “ Court, by former petitions, the hardship of that judgment; and it “ appeared a subject worthy the justice of this Court to give him a new “ trial.

“ Accordingly, in the year 1761, the Honourable General Court “ gave order for a new trial, and enabled your petitioner to bring a Writ “ of Review for that purpose.

“ This writ being bro’t to the Superiour Court in Taunton, A. D. “ 1761, the defendant Draper pleaded in abatement thereto, that the “ pet’r did not name his action, a plea of review of a plea of review, &c.—“ for this exception the writ abated and the petitioner had new coil to “ pay to the adverse party.

“ On representation of this matter to this Honourable Court, the “ petitioner obtained an order for another Writ of Review, and that “ the merits of the cause should be considered and determined. In this “ writ the petitioner took care to amend the fault sound with his last “ Writ, and named his plea, a plea of review of a plea of review of a plea “ of debt; and, Alas ! even so he could not be right; for it was objected “ by motion that this Honourable Court’s order authorized a writ of “ review of the action of debt, but not a plea of review of a plea of re“view, &c. So, on this motion the Court dismissed the writ and “ ordered the petitioner to pay cost.

“ Wherefore, the petitioner humbly prays an order may pass this “ Court to enable him to bring forward a new writ of review,” “ and “ that the merits of his cause may be at last determined.”

The prayer of the petition was granted, and an order passed, by virtue of which was issued the present writ, to which the defendant again pleaded in abatement, “ that if any order of the Great and General Court of this Province authorizes the plaintiff to bring this writ, a profert of ye copy of such order in Court is not sufficient, as in this writ, but such order and ye session wherein it passed ought to have been particularly set forth above, and that such order appears by record of ye same Court.” This plea, however, was overruled, and the case at last went to trial, and resulted in the special verdict and decision above reported.