Remlinger v. Young

Paine, J. One of tlie objections taken in this case is, that tlie complaint does not state a cause of action; yet it is not printed in the case. We have with some reluctance looked into the record, and are satisfied that the objection is groundless. The action is broght in pursuance of the authority given by chapter 295, Laws of 1863, which gives town treasurer the right to bring suit on any subsciption made to pay bounties to volunteers for that town. The subscription here sued on was made after that act was in force; and the complaint sufficiently states a cause of action on the subscription. If, at the time the motion for nonsuit was made, the' plaintiff had failed to prove that he was town treasurer, it was within the discretion of the court to re-open the proof and to allow him to supply that oversight, as was done. This was no error. We do not see that the muster-in papers which were offered and received in evidence were material, and counsel does not suggest what bearing they had upon the issue. If it was merely to show that there had been volunteers credited to that town, the fact was shown by the testimony of Audier, which there was nothing to contradict. If, therefore, it was necessary to prove that fact, it being shown by other competent and uncontradicted evidence, the judgment would not be reversed, even if the certificates were inadmissible, which we do not determine, as there has been no argument presented on either side of the question. We discover no error in the case, and the judgment must be affirmed. By the Court. — Judgment affirmed.