#### WRIGHT *v.*MUNGER.

Militia law — political and legal rule — construction—evidence—averments.

The eommand in the thirty-ninth section of the militia law to the justice to render judgment for fines, unless the defendant show he was not liable, will not be extended to embrace the Court of Common Pleas.

*Quere:*if the law be obligatory on the justice, is it not against first principles!

Material averments in the declaration must be proven on nil debet; the court cannot take them for granted.

Error to the Common Pleas. Munger having sued Wright before a justice of the peace for a militia fine, appealed to the Com*615mon Pleas from the justice’s judgment against him. He declared in the Common Pleas upon a sentence of a court of inquiry for 4 *a penalty, forfeiture, ox fine, oí*$1 75,’ which was afterwards 4 by the court of appeals *adjudged to be*confirmed,’ and made' proferí of the records of the courts of inquiry and of appeals. Issue was joined on nil debet.

On the trial, two papers were offered in evidence, admitted to be all the records kept by the courts of inquiry or of appeals, as was the justices’ transcript. No other evidence was offered. The paper claimed to be a record of the court of inquiry, stated the meeting of the court, the adoption of a resolution, 4 That the board proceed to the assessment of fines on the delinquent lists.’ Succeeding which is a caption and list of names in the following form, viz:

*Captain Gordon's list of delinquents certified to have been put up according to law.*

| *Com.*¡ *Reg.*[

*A. Wright, Jr.*I 75 | 100 *T. C.*j 75 j 100 &c.’

After these lists were several resolutions imposing fines, in direct

terms, upon several persons for disorderly conduct.

The record of the court of appeals contains a resolution remitting one or two fines, and for orders on the treasury to pay the members of the court, &c. On this evidence the court gave judgment for the plaintiff.

*A. Harlan,*for the plaintiff in error,

claims to reverse this judgment, because there was no record of the assessment of the fine declared upon, or of the confirmation of said fine.

*J. M. Williams,*contra,

insisted the irregularities in the proceedings of the military courts were of no importance, because it was not allowed to the party fined, or the justice in the suit before him, to look back of the assessment of the fine, to see if the proceedings were regular, and the law required of the justice, to give judgment for the fine assessed, unless the defendant satisfied him that he was not liable to be fined, or that it ought to have been remitted.

Wright, J.

In political life it has sometimes been held that accusation is evidence of guilt, unless the accused prove himself innocent. The 39th section of the militia law is the first provision we have met with, which carries that principle into courts of justice. The express terms of the section confine it to justices of the peace. We cannot by construction extend it to embrace the Courts of Common Pleas, and therefore need not consider its effects further. The *616papers relied upon as records, neither show a fine in this case to have been assessed by the court of inquiry, or confirmed by the court of appeals. These facts are set forth in the declaration as part of the plaintiff’s right to recover in the Court of Common Pleas. They were essential to the title, and therefore to be proved. The plaintiff exhibited no proof of these facts, and could not, in law, recover. The proceedings in the court, since entering the appeal from the justice, are reversed.

Collett, J. dissented.