Cobb v. Lucas

The opinion of the Court was afterwards drawn up by Morton J. Certiorari is not like error, a writ which the party may demand ex debito justitice, but is grantable at the discretion of the Court. In the exercise of this discretion the [4] Court will grant it whenever it appears that it is necessary tc due administration of justice.. But they will always ex- — amine the circumstances of the case, and if substantial justice appears to have been done, they will not grant the writ to enable the applicant to take advantage of formal and technical errors or immaterial and circumstantial mistakes. Ex parte Weston, 11 Mass. R. 417 ; Adams, Petitioner, 4 Pick. 32. If, for instance, evidence has been illegally admitted, the Court will not grant a certiorari to reverse the judgment for such cause, where there appears to have been competent evidence enough clearly to warrant the judgment which was rendered. 6 Dane’s Abr. 260 ; Edwards v. Evans, 3 East, 450 ; Horford v. Wilson, 1 Taunt. 12. And in looking into the proceedings of an inferior tribu nal, for this purpose, the Court will not confine themselves to the records, .but will receive other evidence to enable them to ascertain the merits of the case. Inhab. of New Salem, Petitioners, 6 Pick. 470 ; Freetown v. The County Commissioners of Bristol, 9 Pick. 50. The petitioner, therefore, before his petition can be granted, must show not only that errors which will be fatal to the judgment have occurred, but that they relate to a materia] point and injuriously affect him. The petitioner was duly warned. On the captain’s warrant directing him to notify other members of the company, was a written notice to himself to attend. This was sufficient. That he duly received it, is proved by his own return upon the warrant. If he had not received the warrant containing this notice to himself more than four days before the review, he could not have returned, — that he had “warned and notified according to law,” the other members of the com- . pony. The testimony of the captain and others to this point whether admissible or not, [see Burt v. Dimmock, 11 Pick. 355,] was wholly unnecessary. The clerk was incompetent to testify that the company met at the time and place named, or that the petitioner was absent. He is made by a positive enactment in the statute of 1809, c. 108, § 18, [see Revised Stat. c. 12, § 112, p. 128,] competent for one purpose, but being entitled to a part of the [5] penalty sued for, and so interested in the event of the prosecution, he is inadmissible for any other. Commonwealth v. Paull, 4 Pick. 251. The clerk not being able to testify to the warning, was not admissible at all; and the justice manifestly erted in suffering him to be sworn. But the facts to which he testified were clearly and sufficiently proved by other evidence. The orderly book which was used, is the best evidence of the meeting of the company and of the absence of the petitioner. Although these records appear to have been kept in a very irregular and imperfect manner, yet we think these two facts sufficiently appear from them. Besides, we see no objection to the amendment of the record according to the truth of the case. Welles v. Battelle, 11 Mass. R. 477. The petitioner, in justification of his absence, offered to prove his inability to perform military duty on the day of the review. This evidence was rejected by the magistrate ; and we think, properly. It appeared that the petitioner had been enrolled and had done duty in this company, several years. His enrolment must be presumed to have been properly made, or he would not have submitted to it for such a length of time. The method of obtaining exemption, on account of bodily infirmity, is pointed out in St. 1809, c. 108, §29. “No non-commissioned officer or private of any company shall be exempted from military duty on account of bodily infirmity, unless he shall obtain from the surgeon or surgeon’s mate of the regiment to which he belongs, if either of those officers are commissioned in such regiment, if not, from some respectable physician living within the bounds of the same, that he is unable to perform military duty,” &c. When such certificate is procured, the captain has a discretion to exempt for a limited time or not, as he shall judge right. Johnson v. Morse, 7 Pick. 251. But without such certificate he has no power to act on the subject. If he grant an exemption, it will not avail without the approbation of the commanding officer of the regiment or battalion. The petitioner did not comply with this provision. And the production of a certifi [6] cate from a physician in another town, did not authorize the captain to grant him an exemption from duty. The petitioner was therefore generally liable to do military duty. But he was, as he alleged, unable on this particular occasion. Can he be permitted to show this fact in defence ? We think not. The statute of 1821, c. 92, § 11, requires “ that all excuses for non-appearance shall be made within twenty days after any training,” &c., to the commanding officer of the company, who upon sufficient evidence may then excuse ; “ but no excuse shall avail, on any prosecution, unless made before the expiration of twenty days aforesaid ;” or unless it shall appear that it was not in the power of the delinquent to make the excuse within the twenty days. The meaning of this provision is too plain to admit of any question. It was made to obviate the inconvenience supposed to arise from the construction which had been given to the 32 d article of the 34th section of the statute of 1809, c. 108. See Commonwealth v. Smith, 11 Mass. R. 456 ; Common wealth v. Douglas, 17 Mass. R. 49. It is peremptory. The petitioner admits that he might have made an excuse within twenty days after the training. If he had done so, the captain might have excused him. Or if he had unreasonably refused, the sufficiency of the excuse might have been tried before the proper triounal; for the decision of the captain is not final. It is very clear that no excuse was made, within the meaning of the act. The offer of the certificate, to the captain two days before the review, cannot be construed into an excuse. It was offered before the training; — an excuse must be offered after. It was offered for the purpose of obtaining a future immunity, not to have an incurred penalty remitted, or to be excused for a past delirquency. Petition dismissed