LEES VS. CHILDS. person would entitle himself to a privilege depending on a condition, he must take care to perform it strictly (1). [* 354 ] *2. The certificate produced is defective both in form and substance. The statute requires that the elders or overseers should certify, in order to entitle any one to exemption from militia duty, that the person claiming the privilege is a member of their society, that he frequently and usually attends with such society for religious worship, and that they believe he is conscientiously scrupulous of bearing arms. This last clause was omitted in the certificate produced by the petitioner; so that the evidence required by the statute, that he is conscientiously scrupulous of bearing arms, has not been produced. But it has been contended, that it is a fundamental and wellknown principle of the sect of Quakers, that it is unlawful to bear arms; and therefore it must be inferred, that every member of that sect has such scruples as the statute requires. It is, however, certain that the legislature, who passed the law, were not of this opinion. For to guard against fraud, they have required additional and more satisfactory evidence of the existence of such scruples; and the evidence required by the statute cannot be dispensed with, even if other evidence of the fact, equally convincing, had been produced. In this case, however, there is no such evidence. There may be members of the society of Quakers, as well as of other religious societies, who do not believe all the doctrines generally admitted by the society to which they belong. Their parents may have belonged to that society, and they may adhere to it through the influence of habit, and the prejudices of education, without much consideration of the tenets peculiar to the sect. Or they may become members, because in the main they agree better with that sect than with any other. Or they may adopt that form of worship to avoid militia duty; as some, we have reason to think, have joined other religious societies to avoid the payment of taxes. To prevent, as far as possible, the allowance of exemptions, under the pretence of religious scruples which [* 355 ] do not exist, the legislature * have interposed a check, in the form of the certificate; and this form must be strictly observed. Upon both grounds, therefore, we think the magistrate decided correctly, and that there is no reason whatever for granting the certiorari prayed for. Costs for the respondent. (1) 3 East, 400, Thurtell vs. The Hundred of Mutford.-6 D. & E. 720, Worseley vs Wood. CASES ARGUED AND DETERMINED IN THE SUPREME JUDICIAL COURT. FOR THE COUNTY OF MIDDLESEX, OCTOBER TERM, 1821, DAVID OSGOOD, Appellant, versus THE HEIRS OF Interest is not chargeable on moneys advanced to a child by his parent. THE said Osgood, being joint administrator with Ebenezer Breed, of the goods and estate of Mary White, deceased, made a petition to the judge of probate for this county, setting forth that the said Mary died intestate, leaving only two heirs at law, viz., Hannah Osgood, late wife of the petitioner, and Ebenezer Breed, father of his co-administrator; that by the death of his said wife, the petitioner, in her right, was by law entitled to a moiety of the personal estate of the said Mary, and the representatives of the said Ebenezer deceased were entitled to the other moiety thereof; that it appeared from sundry memoranda, accounts and documents left by the said Mary, that she had in her lifetime given to her children OSGOOD vs. BREED'S HEIRS. and especially to the said Ebenezer, deceased, large sums of money, which ought to be considered as advancements, and to be taken into the account of the personal estate of the said Mary, and considered as part of the same, in the distribution [* 357 ] * thereof; or otherwise charged and accounted for in the final adjustment of the same; and praying that interest may be charged upon the sums of money so advanced to, or received by the said Ebenezer. The petitioner proceeds to state the sum of 324 dollars, 59 cents, as advanced by the said Mary to her said son Ebenezer, in the year 1763; and the sum of 178 dollars, 88 cents, as advanced in the like manner to the said Hannah in the same year; and he claims that the excess of the first sum beyond the second, with interest thereon from the time of the advancement, should be charged to the representatives of the said Ebenezer, in the distribution of the personal estate of the said Mary. He also states other sums as lent, advanced or intrusted by the said Mary to the said Ebenezer, and for which the latter had never accounted. The judge of probate, after hearing the parties interested in the subject matter of the petition, decreed that the two sums before mentioned should be taken and estimated as part of the estate of the said intestate, to be added to the personal assets in the hands of the administrators, in the distribution thereof; and as to the interest thereof, and as to all the other items and sums of money mentioned in the petition, the judge decreed that the same were disallowed, and held and taken wholly for nought. The petitioner appealed from this decree, because interest was not charged on the sums allowed as advancements, and because the other claims were disallowed, which, although they might be considered as debts due to the intestate, to avoid circuity of action, might and ought to be considered as charged to the representatives of the said Ebenezer, in the distribution of the personal estate of the intestate. Stearns, for the appellant. Peabody, for the respondents. PARKER, C. J., pronounced the opinion of the Court. The decree of the judge of probate is affirmed, for the following reasons: [* 358 ] *As to the claim of interest on the balance of the advancements made to the son and daughter of the intestate, it is not supported by any authorities, nor by the principles of the law on the subject of advancements. All the authorities cited in support of the claim of interest relate only to marriage portions, which are considered as vesting at the OSGOOD vs. BREED'S HEIRS. marriage, and stand upon a different footing from advance ments. The true notion of an advancement is a giving, by anticipation, the whole or a part of what it is supposed a child will be entitled to on the death of the parent, or party making the advancement. It must, according to our statutes, be proved to have been intended as an advancement, chargeable on the child's share of the estate, by certain evidence prescribed; otherwise it will be deemed an absolute gift. It would, in our opinion, be entirely contrary to the character of an advancement, that it should be viewed in the light of a debt upon interest, as contended by the counsel for the appellant. The very claim in this case proves that such could not have been the intention of parent or child. Fifty-six years elapse from the time of the advancement to the settlement of the estate in the probate office; so that the interest, if allowed, would amount to nearly four times as much as the sum advanced. If this allowance could be made, few children would be willing to take an advancement and run the hazard of having their estates swallowed up by it, as might frequently happen. An advancement is usually made with a view to set up the child in business, or on the event of marriage. It has never been thought this was a borrowed capital on which interest was to accumulate; and we are confident no case can be found, either in England or in this country, where such a claim has been allowed. In the case at bar, an appearance of equity has been given to the claim, by setting the advancement of one child *against that of the other, and claiming interest only [359] upon the excess in favor of the son. But if the principle is admissible at all, it must apply as well where there is no such setoff, as where there is. The parent, in the case before us, well knew the difference between a loan and an advancement; as is evident from her taking proper security from her son, when she meant to lend money upon interest. With regard to all the other claims made by the appellant, if they exist at all, it is in the character of debts, and not of advancements; as they are not supported in the latter character, by any evidence of the nature which is required to prove advancements. As debts, if they are now recoverable, resort must be had to the estate of Ebenezer Breed, through his administrator; it not being in the power of the Court to consider them in the process now before us, and, by so doing, to deprive the administrator of the right to a trial by jury. Decree affirmed. 289 COMMONWEALTH vs. MARTIN. COMMONWEALTH versus MICHAEL MARTIN. To make robbery a capital offence, within the first section of the statute of 1818, c. 124, it is sufficient that the party be armed with a dangerous weapon, with intent to kill or maim the party assaulted by him, in case such killing or maiming be necessary to his purpose of robbing, and that he have the power of executing such intent. AN indictment was returned at this term against the prisoner, charging that he, "On the 13th day of August, now last past, with force and arms, at, &c., in and upon one John Bray, in the peace of the said commonwealth then and there being, feloniously did make an assault, and him the said John Bray in bodily fear and danger of his life then and there feloniously did put, and one gold watch of the value of one hundred and thirty dollars, and sundry bank bills, amounting together to the sum of nine dollars, and of the value of nine dollars, of the goods and chattels of him the said John Bray, by force and violence, feloniously did steal, rob, take, and carry away; he the said Michael Martin being [* 360] then and there, at the time of committing the assault aforesaid, in manner and form aforesaid, armed with a dangerous weapon called a pistol, with intent him the said John Bray then and there feloniously to kill and maim; against the peace of the commonwealth, and contrary to the form of the statute in such case made and provided." Upon this indictment the prisoner was arraigned and tried at this term, before Parker, C. J., Thatcher, Jackson, and Putnam, justices. At the trial it was proved that, soon after sunset on the day alleged in the indictment, on the turnpike road leading from Medford to Boston, the prisoner on horseback pursued Mr. Bray, who was riding in a chaise with his wife towards Boston; and, having overtaken him, ordered him to halt; and presenting a large pistol towards the breast of the witness Bray, in a fierce tone of voice demanded of him his money or his life; that the witness, in fear of his life, took bank-notes out of his pocket-book, of the value of nine dollars, and delivered them to the prisoner, he all the time holding the pistol in his right hand toward the breast of the witness, and using threatening language, indicating a design to discharge the pistol if the money was not immediately delivered, the pistol being cocked Having obtained the money, the prisoner showed an intention to depart; but in a short time presented his pistol again in the same. manner, and demanded the witness's watch, holding the pistol as before in his right hand, pointed towards the breast of the witness, and using menacing language, indicating an intention to fire, if the |