Jones v. French

22 N.H. 64

• Court: Superior Court of New Hampshire
• Decided: December 15, 1850
• Status: Published

Opinion

G-ilchrist, C. J.

It seem's not to be the duty of the Adjutant to record the limits of the company. Rev. Stat. chap. 89, § 1, provides that he shall record orders, official communications, and returns. By chap. 84, § 1, after the limits have been prescribed, any alteration in them shall be recorded in the orderly book. These are the only provisions. But the original order was produced, and that is enough. It is as good evidence as the copy at least.

The limits should be territorial. Under the act of December 28th, 1805, Selectmen are empowered to define the limits of school districts, and it has always been considered that the limits must be territorial. Chap. 69, § 1, Rev. Stat., provides that the limits of school districts shall be defined by metes and bounds. And chap. 77, § 1, enacts that a person shall be liable to do military duty in the company within whose limits he may reside, clearly meaning territorial limits.

The limits here are not territorial. The limits of the 5th company are first defined, and then certain persons named are to be included. Where must a person reside to be liable to do duty in the 5th company ? Would it be sufficient if he should build a new house on some part of the farms of one of them ? But then he would not be included, for the only mode in which persons are included is by naming them, and he would not be named. Now as the limits of the two companies are given, they are bounded by each other. If one is uncertain and defective, both are so. And as we think the limits are defective, the action cannot be maintained.

The other questions in the case need not be inquired into.

Verdict set aside.