Sherman v. Needham

Decided September 30, 1826

Massachusetts Supreme Judicial Court · decided 1826-09-30

<p>Upon a complaint by a clerk of a company of militia against a private soldier; for neglect of duty, paroi evidence that the clerk had been duly sworn, is not admissible ; but the fact must be proved by a certificate made on the back of his warrant by the officer who administered the oath. Semble.</p> <p>The provision in St. 1821, c. 92, § 11, [see Revised Stat. c. 12, § 94,] requiring all excuses of non-commissioned officers and privates for neglect of military duty, to be made to the commanding officers of their respective companies within twenty days after such neglect, is not repugnant to the constitution or laws of the United States.</p>

Decided 1826-09-30

Per Curiam.

¶1We incline to the opinion, that the first objection is well taken; and that this is not like the case where the regular evidence has been lost and inferior evidence is admitted. The legislature seem to have prescribed the mode of taking the oath, and the time when it shall be certified, and we think the evidence of the certificate cannot be dispensed with.1 We shall grant a certiorari on this ground, *71leaving the question open however for further argument, upon the return of the writ.

¶2The other objection is not valid. We think the legislature have made a reasonable rule, and that it is not repugnant either to the constitution of the United States or to the act of congress.

¶3Certiorari awarded.

¶4 See Commonwealth v. Sherman, 5 Pick. 239; Clapp v. Watson, 8 Pick 449; Revised Stat. c. 12, § 112.