Commonwealth v. Derby
Massachusetts Supreme Judicial Court
This was a writ of certiorari brought to quash the proceedings in a prosecution before Erastus Worthington, Esq., one of the justices of the peace for this county, which was instituted for the recovery of three several penalties, alleged to have been incurred by the respondent for his neglecting to appear, and do military duty, on the fifth, tenth, and eleventh days of October, 1815, he being a soldiec in the company of infantry commanded by Captain Jlsahel Smith, of Dedham.
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This was a writ of certiorari brought to quash the proceedings in a prosecution before Erastus Worthington, Esq., one of the justices of the peace for this county, which was instituted for the recovery of three several penalties, alleged to have been incurred by the respondent for his neglecting to appear, and do military duty, on the fifth, tenth, and eleventh days of October, 1815, he being a soldiec in the company of infantry commanded by Captain Jlsahel Smith, of Dedham. From the proceedings before the justice, it appeared, that the complainant failed to prove that the respondent was duly…
1Opinion of the CourtParker, C. J.
With respect to the first error, namely, the want of legal notice, the objection is, that it does not appear, on the face of the printed order left with the respondent, that the person who signed it was either a non-commissioned officer or a private in the company, or that he was any thing but a mere stranger, having signed his name “ D. Mann,” without any addition, and without any words tending to show that he acted by order of the captain. This is certainly irregular, as it may leave the soldier, who is warned, uncertain whether any such orders have actually * issued from lawful authority.…
2Cases cited1 opinion
- Commonwealth v. Blue-Hill Turnpike Corp.Massachusetts Supreme Judicial Court · 1809
3Cited by7 opinions
- City of St. Albans v. AverySupreme Court of Vermont · 1921
- Mullin v. StateSuperior Court of Delaware · 1937
- Staats v. Hudson River Rail RoadNew York Supreme Court · 1862
- People ex rel. Haskin v. Board of Supervisors of the County of WestchesterNew York Supreme Court · 1870
- Coffin v. WilburMassachusetts Supreme Judicial Court · 1828
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