In re Samuel Smith

Massachusetts Supreme Judicial Court

In re Samuel Smith

32 Mass. 446

CourtMassachusetts Supreme Judicial Court

DecidedSeptember 15, 1834

StatusPublished

This text of 32 Mass. 446 (In re Samuel Smith) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Samuel Smith, 32 Mass. 446 (Mass. 1834).

Pincite

Opinion

Shaw C. J.

delivered the opinion of the Court. The clerk of a military company holds an important civil as well as military office, of which citizens liable to the performance of military duty, as well as magistrates and others, are bound to take notice ; and he must be duly appointed and qualified, according to the statute regulating the appointment. St. 1809, c. 108, § 8. The statute requires the captain or commanding officer, to certify on the back of his warrant as sergéant, that he does thereby appoint him to be clerk of the company. A certificate, ex vi termini, means a written instrument signed by the commander, or by his direction. This is the commission of the clerk, the authentic evidence of his title to the office. He must be thus qualified at the time of filing the complaint, which is the basis of the legal proceeding against delinquents, and therefore the signing of the certificate, at the time of the trial was insufficient. This is very distinguishable from Clapp v. Watson, 8 Pick. 449, where there was a cer tificate in writing, defective only as to date.

Certiorari ordered.

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Shaw C. J.

delivered the opinion of the Court. The clerk of a military company holds an important civil as well as military office, of which citizens liable to the performance of military duty, as well as magistrates and others, are bound to take notice ; and he must be duly appointed and qualified, according to the statute regulating the appointment. St. 1809, c. 108, § 8. The statute requires the captain or commanding officer, to certify on the back of his warrant as sergéant, that he does thereby appoint him to be clerk of the company. A certificate, ex vi termini, means a written instrument signed by the commander, or by his direction. This is the commission of the clerk, the authentic evidence of his title to the office. He must be thus qualified at the time of filing the complaint, which is the basis of the legal proceeding against delinquents, and therefore the signing of the certificate, at the time of the trial was insufficient. This is very distinguishable from Clapp v. Watson, 8 Pick. 449, where there was a cer tificate in writing, defective only as to date.

Certiorari ordered.

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Bluebook (online)

32 Mass. 446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-samuel-smith-mass-1834.