Nathaniel Hill, plaintiff in error vs. David Fuller, 14 Me. 121

The action was continued for advisement, and the opinion of the Court was afterwards drawn up by Weston C. J. The plaintiff in error removed with his family and came to reside in Carmel, within the bounds of the company, in which lie is alleged to have been enrolled, which brings his case within the first

section of the law of the United States, relating to the militia. While at Carmel, he hired and cultivated a farm there for two successive years. It differs essentially from the case of the Commonwealth v. Swan, 1 Pick. 195, where the party enrolled was absent from his established domicil, on a visit to his friends, which happened to be protracted, beyond his original intentions. The same

section imposes upon the captain, or commanding officer of a company, the duty of enrolling every citizen, liable by law to enrolment. The roll itself is a document of a public nature, constituting an important part of an organization, which has for its object the public defence. It is an original, and properly proved by the authentication of the officer entrusted to make it. For where the law has appointed a person for a specific purpose, it must trust him, as far as he acts under its authority. I Stark, 173.

The certificate of an officer, entrusted by law to enrol a lease or deed of bargain and sale, on the deed or lease in the margin or on the back of the instrument, is competent evidence; and it could never have been doubted that the enrolment itself was so. Kennersly v. Orpe et als. Douglas, 56. The act of Congress, the paramount law, requires that the enrolment be made by the captain. He is tile officer entrusted with this service. Our law, stat, of 1834, ch. 121, $ 12, has given him the clerk, as an assistant; but he may doubtless act wdthout him.

The presence or aid of the assistant is not necessary to give validity to what he does, in the discharge of this duty. When made by him, it is entitled to the credence due to a public original document. The roll in question has the form required by law, and it is authenticated by the officer who was entrusted to make it. The precise time of the enrolment of the plaintiff in error, does not appear; but it does appear to have been done prior to his being warned to do the service, in which he was proved to have been delinquent. And this is sufficient upon this point. In Sawtell v.

Davis, 5 Greenl. 438, it was decided, that the fact of a prior enrolment could not be made out by parol proof. There is some confusion of tenses in the certificate of the captain, on the back of the warrant of the defendant in error; but giving it a liberal and a fair construction, it must be understood to mean, that he was appointed clerk, and that he was thereupon qualified, by taking the oath required by law. And all this might properly appear in one certificate. Abbot v. Crawford, 6 Greenl. 214.

That John Fuller was acting in his capacity of captain, when doing a military act appertaining to that office, is necessarily implied. The company order does refer to a list, containing the names of those to be warned, among which is the name of the plaintiff in error. The captain in his company order, did act in pursuance of a regimental order. We have been referred to no law, requiring that the company order should set forth that fact. The company were directed to assemble at an hour somewhat earlier, than was required by the regimental order.

But we are satisfied, that this is in accordance with military usage. It affords an opportunity to prepare the company for an efficient appearance at the hour appointed. We cannot say that more time was taken than may have been necessary for this purpose. Upon the whole we are of opinion, that none of the points taken in defence can be sustained. Judgment affirmed.