Commonwealth v. Hall

Morton J.

delivered the opinion of the Court. By Laws U. S. 2 Cong. 1 Sess. c. 33, § 1, it is made the duty of the commanding officer of every company of militia to enrol every person liable to militia duty within the limits of his company. And by the militia law of this commonwealth (St. 1809, c. 108, § 8) the clerk is required to keep “ a fair and exact roll of the company ” and from time to time to revise and correct the same, so that it shall contain the names of all persons within thei bounds of his company subject to militia duty. Unless thus enrolled and duly notified *263thereof, no person can be holden to perform this onerous 1 service.

The roll of White’s company contained the name of Charles Hall, but not the name of Charles Jones Hall. Charles Jones is the respondent’s Christian name. It needs no argument to prove that Charles and Charles Jones are different names.1 Commonwealth v. Perkins, 1 Pick. 388. The respondent therefore was not duly enrolled in the company of which the complainant claims to be clerk.

The clerk of a company is an officer who has important duties to perform. He alone is authorized to prosecute for all fines and forfeitures incurred by the delinquencies of the non-commissioned officers and privates. The mode of his appointment is fixed by statute. He must be selected from the sergeants of the company by the commanding officer, who must on the back of his warrant as sergeant, certify that he does thereby appoint him to be clerk of the company. He must also be sworn to the faithful discharge of his duty.1 St. 1809, c. 108, § 8, 35. [Revised Stat. c. 12, § 66.]

The complainant produced before the justice no evidence of his appointment. It does not appear that his motion to amend was granted, nor indeed could it be. There was no certificate of his appointment which could be amended. The certificate of the oath did not refer to the office of clerk, and it was clearly inadmissible, in any stage of the proceedings, to permit the commanding officer of the company to make an appointment to enable the complainant to sustain a prosecution, which he had no authority to commence.

We are therefore of opinion, that both of the objections are well founded.

Proceedings quashed.

But see Keen v. Meade, 3 Peters’s Sup. Ct. R. 7, where it is said by Thompson J., that it may well be questioned whether the middle letter form-ad any part of the Christian name. See also Co. Lit. 3 a; Rex v. Newman, 1 Ld. Raym. 563; Franklin v. Talmadge, 5 Johns. R. 84; Reid v. Lord, 4 Johns. R. 119, note a; Wood v. Fletcher, 3 N. Hamp. R. 61; Arbouin v. Willoughby, 1 Marshall, 477; Hutchins v. Gilbie, 2 Chitty’s R. 335.

See Commonwealth v. Dedham, 16 Mass. R. 141; Sherman v. Needham, Pick. 66; Commonwealth v. Sherman, 5 Pick. 239; Bassett v. Marshall, 9 Mass. R. 312.