Opinion
May Term, 1819.
From Wake.
Action of debt for 25 l the penalty incurred by a Colonel of the militia, for not making a return to the Brigadier-General, as directed by the act of 1806, relative to the militia. The certificate of the Adjutant-General, is evidence under that act, only of the delinquency of the officer. It is not evidence, that the person sued, was an officer at the time, and bound to make the return.
This was an action of debt to recover the sum of twenty-five pounds, the penalty incurred by a Colonel of the Militia, for failing to make a return to the Brigadier-General. Upon the trial, the Plaintiff offered in (332) evidence the following certificate of the Adjutant-General, to-wit:
"STATE OF NORTH CAROLINA.
"I do hereby certify that Thomas Bell was Lieutenant-Colonel commandant of the regiment of militia in Camden County for the year 1815: and that he the said Thomas Bell did not as such, make his military return to the Brigadier-General of the brigade in which Camden County was included for the said year, as directed by the law in such cases made and provided Given under my hand and seal at Raleigh, this 15 October, 1818.
"ROBERT WILLIAMS, Adjutant-General of the Militia of North-Carolina. (SEAL.)"
And no other evidence was offered on behalf of the Plaintiff. On behalf of the Defendant, it was insisted that under the act of 1806, relative to the militia, the certificate of the Adjutant-General was evidence only as to the delinquency; that it was no evidence of the Defendant's being the Lieutenant-Colonel commandant as stated in the certificate — and of this opinion was the Court; and the Plaintiff was nonsuited. A rule for a new trial was obtained, which upon argument was discharged, and the Attorney-General on behalf the Plaintiff appealed.
The act of 1806, makes the certificate of the Adjutant-General, proof of the delinquency only of the officer. To render the Defendant liable to the penalty, it is necessary further to prove that he was an officer at the time, and bound to make the return. — The nonsuit was properly awarded, and the rule for a new trial must be discharged. (333)