Spaulding v. Bancroft

afterward drew up the opinion of the Court, The complaint or information, which includes other persons, as well as the petitioner, substantially follows the formula prescribed by the Revised Stat. c. 12, § 112. And although there are in it a few verbal variations, they are not material, and it is undoubtedly sufficient.

The evidence satisfactorily shows, that the petitioner was duly enrolled. Having been notified, he appeared at the time and place appointed, answered to his name when called, and actually did military duty. He thereby submitted himself to the authority of the commanding officer, and was bound to obey all his legal orders, and in every respect to conform to the requirements of the law. It is now too late for him to object to the legality of the notice or of the order to notify him. If the warning was informal or without authority, or made by a person incompetent to make it, the appearance cured the defect. The petitioner suffered no inconvenience from any neglect or omission; and having once waived the irregularity, he cannot afterwards retract the waiver and take advantage of the defect. The soldier who chooses to appear, either with or without legal notice, and take his place in the ranks with his brethren, is subject to all lawful commands, and bound to conform to all legal rules and regulations. The contrary would be subversive of all military order and discipline. Foye v. Curtis, 21 Pick. 330.

The clerk, though a party, is, like the complainant, under the statute for “ the maintenance of bastard children,” made a competent witness by express enactment. But it is supposed to be from the necessity of the case, and his testimony is con fined to a specific point. He cannot testify to any thing else Commonwealth v. Pauli, 4 Pick. 251 ; Commonwealth v Peirce, 15 Pick. 170. Nor can he be compelled to testify against himself. The rule, when not varied by statute, is uniform and inflexible. A party to the record can never be a witness. Commonwealth v. Marsh, 10 Pick. 57 ; Columbian Manuf. Co. v. Dutch, 13 Pick. 125 ; Page v. Page, 15 Pick. 369.

*57The deficiency of the equipments of the petitioner, was properly proved by the roll and the orderly book. They were the best evidence of the fact. Cobb v. Lucas, 15 Pick. 7. The circumstance that the record was not made up till some time after the transaction, and not until the day of the trial, will not invalidate it. The orderly book is the record of the company. It is the duty of the clerk to keep it; and he is entitled to the same indulgence in making and amending his records, which is allowed to other similar recording officers.

The disbanding of the company of infantry in Dunstable, and the incorporation of the members of it into the company of infantry in Tyngsborough, is established by the highest evidence, viz. the orders of the commander-in-chief with the advice of the council. The boundaries of companies, as well as all other boundaries, not only may, but from their nature* must be proved by parol evidence.

Petition dismissed.