
    Commonwealth versus Cromwell Bliss.
    The certificate of a surgeon in the militia, that a private, “ by a wound in his hand, has his thumb and fingers rendered useless thereby, and is unable to perform military exercise,” is not necessarily an excuse for the life of the private ; but it is competent for a justice before whom he is sued for a penalty, to inquire whether the disability continues.
    This was a writ of certiorari issued at the suit of the respondent, directed to a justice of the peace for this county, commanding him to certify the proceedings before him in a cause wherein James Goff was complainant, and the said Bliss was respondent.
    *Upon the return of the writ, it appeared that Goff, as clerk of a company of militia, had complained against Bliss, as a private in the same company, for neglecting to attend a muster of the company on the 16th of September, 1808. The justice issued his summons for Bliss's appearance at a day and place appointed.
    The respondent pleaded, 1. The general issue of not guilty, which was joined by th.e complainant. 2. In bar, that having become, by misfortune, disabled and infirm in body, he obtained from the surgeon of the regiment to which the said company belonged, a certificate as follows, addressed to the captain of the company: “ Mr. Cromwell Bliss, a soldier in your company, by a. wound in his left hand, has his thumb and fingers rendered useless thereby, and is unable to perform military exercise. Rehoboth, May 5, 1807.” And that on the same day the captain of the company discharged him from doing military duty in the company the full length of time expressed or implied in the certificate, that is to say, for life, by endorsing his name on the said certificate, which was afterwards approved by the commanding officer of the regiment; by force of all which the said Bliss was, and still is, discharged, &c.; and this, &c.; wherefore, &c.
    The complaint replied that Isaac Fowler, who signed the said certificate, was not then the surgeon of the said regiment, upon which issue was joined.
    After hearing the cause, and adjourning his court to another day for consideration, the justice found that Bliss was, on the day charged in the complaint, a private soldier, as set forth in the complaint, and liable to do military duty in the said company, and that he did unnecessarily neglect to appear, &c., and thereupon sentenced him to pay a fine and'costs.
    At the last term, Tillinghast, for the respondent, contended that the proceedings should be quashed. Here were two issues joined in good form. Neither of them are found, but other matters foreign to them both; and upon these foreign matters the justice rendered judgment.
    * Wheaton,
    
    in support of the proceedings, insisted that the special plea in bar ought not to have been received, and so ought now to be thrown out of the case. Then, supposing the cause tried on the general issue, that issue is substantially found ; and the judgment is well supported.
    The cause was continued for advisement; and now,
   The Court

expressed their opinion that as the siiigeon had, in his certificate, given no limitation of time, it was competent to the justice to inquire whether the infirmity still continued. It would not h^ve been a just construction of the certificate, to suppose it necessarily to continue for the life of the soldier.

Then the finding him to be a soldier belonging to the company, and that he unnecessarily neglected to appear, is a sufficient finding of the general issue ; and as by the statute of 1783, c. 42, § 7, all special pleading in civil actions triable before justices of the peace is rendered needless and improper, it was not necessary to find the issue joined under the special plea in this case. There is sufficient found to maintain the judgment; and let it be affirmed.  