Governor v. Jeffreys, 8 N.C. 207, 1 Hawks 207 (1820)

Dec. 1820 · Supreme Court of North Carolina

8 N.C. 207, 1 Hawks 207

The Governor v. Jeffreys.

From "Wake.

Ey the true, construction of the act of 1806, the certificate of the Adjutant-General is evidence only in such cases of delinquency of the officers of militia in making returns, as consist in not making returns to himself:

Held, therefore, that he cannot certify that a Colonel of Cavalry did not ' make his return to the Major-General.

This was an action of debt brought by the Adjutant-General of the militia of this State, in the name of the Governor, to recover from the Defendant, a Colonel of Cavalry, the penalty of fifty pounds incurred by failing to make his military return to the Major-General of the seventh division, in the year 1818. Plea, nil debet. Upon the trial, the Attorney-General offered in evidence, ^ p¡.0Ve the delinquency of the Defendant, the certificate of the Adjutant-General only, that the Defendant was Colonel of Cavalry in the 17th brigade of militia, A. D. 1818, and that he did not, as Colonel aforesaid, make his return to the Major-General of the 7th division of militia for that year, in conformity with the directions of the, act of the General Assembly in such case made and provided. On the motion of the Defendant’s counsel, the Court instructed the Jury, that the evidence was not sufficient to maintain the action on the part of the Plaintiff, because by the act of 1806, sec. 7, the certificate of the Adjutant-General is only evidence, if “it contain such matter as would be sufficient to convict the officer, if delivered by the rules of Law in open Court and here the Adjutant-General certifies as to a thing’ not relating to any transaction in or concerning his own office, but as to a matter which he could only know by the relation or return of the Major-General, who therefore ought himself to be in Court to prove it. The Attorney-General submitted to the opinion of the Court, and suffered a non-suit ; but thinking the law to be otherwise, he brought the case to this Court by appeal. The case was submitted here, and

The opinion of the Court was delivered by

Chief-Justice Tatxor :

The single question is, Whether the Adjutant-General’s certificate is sufficient evidence that the Defendant, a Colonel of Cavalry, did not make his return to the Major-General according to law i By the act of 1806, the certificate is made conclusive'evidence against a delinquent officer, provided it contain such matter as would be sufficient to convict the officer, if delivered by the rules of law in any Court of record. The certificate here points directly to the Defendant’s delinquency, and therefore, it does contain such matter, as would be sufficient to convict him, if delivered ore terms by the Adjutant-General. But it is not to be expected, that if so delivered, the examination would proceed no further ; for as, by the same act of Assembly, see. 3, the Defendant is directed to make his return, not to the Adjutant-General, but to the Major-General to -whose division he is attached, the knowledge of the Adjutant-General of the Defendant’s delinquency, could only be officially derived from information given him by the Major-General. Such testimony, therefore, resting on hearsay, would be clearly inadmissible 5 otherwise the Adjutant-General’s certificate would be conclusive, even in cases where the officer Informing’ him had received his information from the one next below him in command, and so down to the com-mandani of a regiment. It is certainly competent for the Legislature to make such a certificate evidence, though founded upon hearsay; but the intention to innovate upon so important a rule, ought to be manifested by declaration plain. If the law be susceptible of another and more rational construction, it ought to receive it j and its design appears to me to be extended no further, than to relieve the Adjutant-General from .personal at. tendance in those cases where he could give legal proof of the Defendant’s delinquency; and this will embrace all those cases where it is made the duty of the officer to make his return directly to the Adjutant-General. Further than this, the act cannot be extended by a fair construction of the words, or the evident intent of the framers. ■ Wherefore, the judgment must be affirmed.