Wilson v. John , 2 Binn. 209 ( 1809 )

Tilghman C. J.

delivered the court’s opinion.

This action was brought in the Common Pleas of Chester county, by David John the defendant in error against James Wilson the plaintiff in error, for a trespass in issuing a warrant as captain of the militia, by virtue, of which the plaintiff below was arrested. The defendant justified under the militia law, passed 6th April 1808; and in the course of his defence, offered in evidence a paper writing, purporting to be the proceedings of a court of appeals, which was objected to by the plaintiff, and overruled by the court. This is the first exception in the cause. The law directs that the court of appeals shall consist of three commissioned officers, to be appointed by the commanding officer of the regiment, who shall, when sitting, be under oath or affirmation to perform their duty with fidelity and impartiality. The Court of Common Pleas were of opinion it should be proved, not only that the members of the court were officers, by producing their commissions, but also that they took the oath prescribed by law. In this we think they were right. This court is of the nature of special commissioners, and not a court of record as the defendant’s counsel have contended. It is said they have _ . . . .. . , . , ... ... power to fine and imprison, which is the distinguishing quality of a court of record. But they have no such power. Their authority is limited to remitting the fines of such appellants, as shall give satisfactory proof, that their nonattendance on the days appointed for exercising the militia, was occasioned by “ lameness, sickness, or unavoidable neu cessity.” It was necessary therefore to prove, before the proceedings of this court were read in evidence, that they were legally constituted, and had pursued the law in all material points.

The Court of Common Pleas having delivered their opinion on this point, the defendant gave evidence that the court of appeals had taken the oath prescribed, and then offered their proceedings in evidence again; at the same time offering parol testimony, that lieutenant colonel Grier, by whom they were appointed, was commanding officer of the regiment. The court rejected the evidence a second time, because the commission of lieutenant colonel Grier was not produced. In this also we think they were right. A man may assume command without lawful authority. The lawful authority is the commission, and that is to be proved by producing it in court. Our opinion therefore is that the judgment of the Court of Common Pleas be affirmed.

Judgment affirmed.