
    Ferris against Armstrong.
    ALBANY,
    Jan. 1813.
    a. being- a artiiiery'com” atyyóf “ve-1»6 York, receivthe captain, á discharge^ in the usual form, signed !>y the capcountersigned íuandánt”0 of the regiment, and C. who was then lieusame1 comp™ A'’ h”dW this certificate; it. having resigned, oi succeethf command °f ''“Xa’s name not havstruck br of the company roll, C. returned him to (lie regimental court-martial as a delinquent, at several parades; A. did not attend the court-martial, relying on his certificate, for an exemption, and was fined by the court for his delinquency.
    A. brought an action on the case against C. for falsely and maliciously returning him, as a delinquent, by reason whereof he was compelled to pay a fine, &c. It was held that the action was not maintainable, it being the duty of C* to return A. as a delinquent, and leave it to the court to decide on the validity of his discharge; and A. having had an opportunity to make his defence before the court-martial, the decision of that court was conclusive that 0» had not made a &lse and malicious return of the delinquency of Al
    IN ER|¿Oít, on certiorari, from a justice’s court. Armstrong' brought an action against Ferris before the justice. Ferris was a company of artillery, in the 3d regiment of artillery in the city of Nem-York, and the plaintiff below, Armstrong, was a private in that company. The plaintiff declared in a special action upon the case, against Ferris, for falsely and maliciously returning him to the regimental court-martial as a delinquent ° * 1 member of the company, at several parades, by reason whereof ke was fined by the court-martial.
    Fpon the trial, Armstrong relied upon a certificate of discharge, signed by Stephen Scudder, as captain, on the 3 7th October, 1809, . , * 77 and while Ferris was a lieutenant of the company, then under Scudder’s command, and the existence of which certificate was known to Ferris when he made the return. The name of Armstrong stood upon the company roll under Scudder, as a member, * *■ ' and had not been erased, or marked as discharged. The certificato bad never been countersigned by the commandant of the regiment, nor had any new company roll been subscribed under Ferris.
    
    The cause was submitted to the court without argument.
   Per Curiam.

The facts in this case furnish no colour for the action. If Arrnstromg was a delinquent member, it was the duty of the captain to return him as such, and he would have subjected himself to grievous penalties if he had omitted this duty. (Sess. 32. c. 165. s. 65.) Armstrong remained as a member on the company roll which the captain had received from his predecessor, and it was not for him, but for the court-martial, to judge of the validity of the assumed discharge. Armstrong was entitled to have made his defence, and it is to be presumed he had due opportunity to make it, before the court-martial, and if he could have shown that he was no longer a member of the company, he would have been acquitted and not fined. The decision of the court-martial is conclusive that Ferris had not made a false and malicious return of him, as a delinquent. But it was admitted that the certificate of Scudder was of no effect or validity, for want of the signature of the colonel; and upon inspecting the acts relative to the regiments of artillery in the city of New-York, and particularly the act of 27th March, 1807, (c. 71.) organizing the regiment of artillery to which Armstrong belonged, it would seem to be the better opinion, that he was not entitled to his discharge. However, it is not necessary, in this case, to decide that point. It is sufficient that Armstrong had not obtained the requisite signatures to render his certificate valid; and that the'competent tribunal adjudged him a delinquent.

Judgment reversed.  