James Gleason, Petitioner, versus Ambrose Sloper, 24 Pick. 181

Morton J. delivered the opinion of the Court. A petition for a certiorari is always an application to the discretion uf the Court. When, in obedience to the writ, the proceedings are certified to us, we are bound to act upon strict legal principles ; and if any error, however unimportant or foreign from the merits of the case, appear, to quash them.

But in the exercise of our discretion we examine all the circumstances, and if we find that substantial justice has been done, without violating any important rules of proceeding, we refuse to grant a certiorari, although we may discover some technical or formal errors and some unimportant departures from the correct rules of practice.

On this inquiry we always recebe extrinsic evidence, not for the purpose of contradicting the record, for if that contains affirmative defects it is incurable, but to supply omissions and to show that there was a more perfect compliance with the rules of law, than the record shows, and that real justice was done between the parties. Adams, Petitioner, 4 Pick. 32 ; New Salem, Petitioners, 6 Pick. 473 ; Freetown v. Bristol County Commissioners. 9 Pick. 50 ; Cobb v. Lucas, 15 Pick. 3. A stronger case for the application of these principles seldom occurs, than ■ the present.

For although the magistrate received evidence which he ought to have rejected, decided some questions erroneously, founded his opinions on improper grounds and gave insufficient reasons for them ; yet it will be seen, on further examination, that none of these prejudiced the petitioner, and that in truth no injustice was done him. 1. To prove that the petitioner was duly enrolled, the complainant produced a roll, purporting to be made by the selectmen of Sutton, in obedience to the order of the colonel of the regiment and addressed to him.

To this the petitioner, admitting the genuineness of the signature, objected, because it was not proved that the individuals who signed the roll were duly chosen selectmen. But the roll was admitted and we think properly admitted. The selectmen were acting in the capacity of public officers.

They were, by statute, made returning officers for this special purpose; they had returned the petitioner’s name on the roll; it was rightfully placed there ; and the petitioner had no more right to call for evidence of their election than the defendant upon whom a writ had been served, would have, to call for evidence of the appointment of the sheriff who made the return. Rex v. Verelst, 3 Campb. 432; Taylor v. Cooke, 8 Price, 653; 2 Stark. Evid. 373; 3 Stark. Evid. 1250; Doty v. Gorham, 5 Pick. 487.

But were this doubtful, we would now receive evidence of their election, which the petitioner agrees can be furnished. 2. To prove that the company was u without any commissioned officers,” so that the immediate command of it devolved upon the colonel of the regiment, the letter of the adjutant-general to Mr. Hastings was offered. This should have been rejected. It is a mere statement of facts and inferences made by an individual who was not under oath.

It does not purport to be a copy of any record or public document; and a certifying officer is no more competent to make a certificate of facts than any other individual. But the facts satisfactorily appear from other evidence used on the trial; and the petitioner suffered no injury from the improper admission of this evidence. The general order for an election of all the company officers, shows, by necessary implication, that the offices were then vacant. And the subsequent order refusing to com ■ mission those who were elected, shows that they continued lo be vacant.

The common presumption, that the proceedings of public officers are regular and that they correctly discharged their duty, should apply to the present case. 3 Stark. Evid. 1250; Commonwealth v. Fanning, 14 Mass. R. 290. But whether the governor’s omission to grant commissions to those who were chosen was right or wrong, they could not act as officers and were not in fact officers, until they were duly commissioned.

The company therefore was “without any commissioned officers.” And it became the imperative duty of the colonel to assume the immediate command' and to issue his orders to the selectmen, there being no clerk, to return a roll of the company, and “upon receiving such roll,” “from time to time to issue his orders to any one or more of the persons whose names are borne thereon,” requiring them “ to notify the persons named in said order and others liable to do military duty in the company, to appear at the time and place appointed in said order, for any company inspection or training, or any battalion, regimental, brigade or division inspection or review.” St. 1825, c. 153, § 1. 3.

The warning to the petitioner to do duty in the company under the command of the colonel, was sufficiently certain. The object of the warning is to notify the soldier, when, where and in what company, he is required to perform military duty. No other description than what is needed for these purposes, can be required. This order was perfectly understood by the petitioner. He knew what company he belonged to ; he knew the place where he was required to appear ; and he doubtless knew the disorganized state of the company, and that the immediate command had devolved on the colonel.

The warning was in the prescribed form; St. 1809, c. 108, § 35 ; and in our opinion was sufficient. Field, Petitioner, 9 Pick. 41. Petition dismissed.