
    Theodore L. Savage vs. William Gibbs.
    A member of the Massachusetts volunteer militia cannot maintain an action against the colonel of his regiment, for services performed pursuant to a military order given by the latter by direction of his superior officer.
    Action of contract upon this account annexed:
    “ Col. Wm. Gibbs to Theod. L. Savage, Dr.
    “ For services one day at Lexington as member of your regimental band, $5.00.”
    The parties submitted the case to the decision of the court upon the following statement of facts: This action is brought against the colonel commanding the first regiment of artillery of the third brigade and second division of the Massachusetts volunteer militia, by a member of the regimental band of that regiment, for services as a musician on the 30th of March 1854, at Lexington, at the funeral obsequies of Jonathan Harrington, pursuant to an order of the defendant hereinafter set forth, and for which the State has refused to pay.
    On the 27th of March, the brigadier general of said brigade issued the following order: “ Head Quarters 3d Brigade, Second Div. M. V. M., Lincoln, March 27th 1854. Brigade Order No 5. Col. William Gibbs, commanding first regiment artillery, is hereby ordered to have Company A in his command report with a battery of two pieces for the purpose of firing minute guns at the funeral obsequies on the 30th inst. Also to furnish the regimental band of his regiment.
    “ James Jones, Jr., Brig. Gen.”
    The defendant, upon receipt of this order, caused the following order to be issued to the plaintiff: “ Head Quarters 1st Keg. Artillery, 3d Brig., 2d Div. M. Y. M., Waltham, March 28th 1854. Sir, You are hereby ordered to appear with the regimental band, in obedience to special order No. 4, and Brig, order No. 5, at Lexington Common, 30th inst., at 1 o’clock, p. m. for the purpose of attending the funeral obsequies of Jona. Harrington, the last of the gallant band of patriots who were engaged on the memorable 19th of April 1775; your band to appear uniformed and equipped for escort duty. This being an ordered parade, you will draw pay from the State.
    “ Per order, William Gibbs, Colonel.”
    “ S. A. Clifford, Adjutant.”
    “ To T. L. Savage, clerk regimental band. N. B. You are requested to meet at the Charlestown Artillery Armory, at 11 o’clock, to escort the field and staff officers to the depot, to take the cars at 12 o’clock.”
    
      M. G. Cobb, for the plaintiff,
    cited St. 1846, c. 218, §§ 7, 8; Barnes v. Perine, 9 Barb. 202; Chit. Con. (8th Amer. ed.) 56.
    
      G. A. Somerby, for the defendant.
   Shaw, C. J.

The order given by the defendant, being a regular military order, made by the direction of his superior officer, constituted no ground for an assumpsit, express or implied, by the defendant to the plaintiff, to pay any thing for the service to be performed. It seems, that the plaintiff and his associates, as a military musical band, constituted a part of the organized volunteer militia, and whether they were entitled to any pay for such occasional service, and if so, on what occasion, to what amount, and from whom to be received, must depend on the rules and regulations for the government of the volunteer militia, to which, by enlisting, the plaintiff assented.

Judgment for the defendant.  