
    Commonwealth versus Stephen Cutter.
    A warning in writing, in good form, left at the house of a soldier by a stranger, under the direction of a non-commissioned officer, is sufficient.
    One who has served seven years in a volunteer corps, is, ipso facto, entitled to his discharge; and, after demanding it, is no longer liable to a fine for neglecting to attend a muster of the corps.
    This was a certiorari, brought to quash the proceedings before a justice of the peace for this county, had upon the complaint of the clerk of a volunteer corps of militia called * the Medford Independent Light Infantry, against the respondent, for not appearing at a muster of the said company, having been duly warned. The justice convicted him, and sentenced him to pay a fine.
    
      Austin, for the respondent,
    took two exceptions to the proceedings, viz., 1. That it did not appear that he was legally warned.— 2. That it appeared that he was entitled to his discharge from the said company before the time of the muster, and so not liable to a fine. As to the first point, it appeared that the captain of the company duly issued his orders to one of the sergeants, commanding him to notify the company at the time and place alleged in the complaint; that the sergeant made out a written notification to the respondent in legal form, and caused it to be left at his house in due season by one Davis, a minor, and servant of the sergeant, and not one of the company; that the respondent received the said notification four days before the time fixed for the muster; and that it had always been the practice to notify the members in that manner.
    By the 18th section of the statute 1809, c. 108, being the act for regulating, &c., the militia, it is made the duty of the non-commissioned officer or private of a company, upon receiving orders therefor from the commanding officer, to give notice of the time and place appointed for the parade of such company to each and every man, either by delivering to him in person, or by leaving at his usual place of abode, a written or printed order four days previous to the time appointed. And the testimony of such non-commissioned officer or private is made conclusive to prove that due notice was given to the party prosecuted, unless such testimony be invalidated by other evidence.
    
      Austin insisted that this duty must be done by the officer himself, and could not be done by deputy or proxy, any more than a writ could be served by the proxy of a person authorized by law to serve it. And the provision that the officer’s oath should be conclusive evidence of the fact, is * wholly repugnant to the idea of his performing the service by proxy; as in such case he could have but the declaration of another, as the foundation of his own positive testimony. It is material, that in this case the proxy employed was not only a minor, but not even a member of the company.
    The facts, as stated in the justice’s record, which went to prove that the respondent was entitled to his discharge, were, that the respondent had removed from Medford to Charlestown previous to the said muster ; that he had belonged to said company more than seven years ; and that he had demanded his discharge from the commanding officer, before he removed to Charlestown.
    
    By the statute of 1799, c. 73, <§> 3, it is enacted that every person enlisting into any volunteer corps shall be holden to do duty therein for the term of seven years, unless sooner discharged, &c.
    
      Austin argued, from this provision, that a soldier, having served in a volunteer corps for seven years, was, ipso facto, entitled to his discharge upon his demanding it, and that, after such demand, he could not legally be considered as a member of súch corps, nor obliged to do military duty therein.
    
      Bartlet,
    
    in support of the record, argued that what an officer who, in the case of warning the company, acted merely as the servant of the commander, might do by himself, he might do by the intervention of another. The testimony of the officer, though conclusive, is not made by the statute the only evidence ; and the oath of a disinterested stranger might be considered at least as good evidence as that of an officer of the company interested in multiplying the fines. But the objection must have little weight in the present case, since the fact is found that the respondent actually received the notification in due and legal season.
    As to the respondent’s right to a discharge under the provision of the statute cited, Bartlet contended that the * intention of that provision was not to limit the enlist' ment of privates in corps of this kind to seven years ab solutely and in all cases, but merely to prevent the operation oi other grounds of exemption in the case ; as that they should be held seven years, although before that term had expired they should arrive at the age of forty-five years, or been appointed to some office, which by law is made an exemption from all duty in the militia.
   By the Court.

The service of the notification we think sufficient to have compelled the soldier’s appearance, or the exaction of a fine for his neglect, had he been liable to serve in this corps. But we are of opinion that he was not so liable. After seven years’ service he was regularly entitled to his discharge. Any other construction of the clause of the statute cited to this point would render it nugatory.

Proceedings quashed.  