Commonwealth v. Bullard 8 Tyng 270, 9 Mass. 270

Commonwealth versus Nathan Bullard.

A soldier in the militia at a muster for inspection of arms, &c., exhibited an equipment as his own, which he had borrowed of another soldier at the same muster, and was returned by the inspecting officer as fully equipped; the owner of the equipment also exhibited the same, and was likewise returned as fully . equipped: it was held that the first soldier was liable to the penalty for the deficiency of such equipment, notwithstanding the return of the officer.

This was a writ of certiorari directed to a justice of the peace, commanding him to certify the proceedings had before him upon the complaint of Bullard, as clerk of a militia company, (against one Nahum Andrews, a private soldier in the same company,) at whose suit the writ of certiorari issued.

From the proceedings returned, it appeared that the complaint against Andrews was for his being deficient of a knapsack on the first Tuesday of May, 1810, at the muster of the company for inspection of their arms and accoutrements.

The facts being set down at length in the justice’s record, as the same were in evidence, it appears that Andrews, being present at the inspection, was callea on by the proper officers to exhibit his *245arms and equipments, and that he exhibited all that the law requires. Whereupon the clerk noted him on the company roll as fully equipped, and so returned him to the captain of the company. But it was afterwards discovered by Bullard that Andrews was not the owner of the knapsack which had been exhibited by him, but had borrowed it, for the purpose of exhibiting it, of another soldier in the company, who also exhibited it as his own at the same inspection. Of this fact the clerk informed the captain, when he made his return, and the captain, in making his return to the commanding officer of the * regiment, returned Andrews as wanting a knapsack. Upon these facts appearing, the justice acquitted Andrews.

Lincoln for the certiorari.

Blake contra.