
    William H. Howard, Petitioner &c., versus Daniel Harrington.
    
      Oct. 5th.
    
    One who has served seven years in a volunteer company of militia, is ipjo facto discharged, and, unless he reénlists, is liable to be enrolled in a standing company.
    
    This was a petition for a certiorari to Austin Denny, a justice of the peace, by whom the petitioner had been fined for unnecessarily neglecting to appear, on the 17th of September, 1825, at a company training of a standing company of militia in Worcester. The sentence of the magistrate was objected to, because the notification to the petitioner, which was dated “ September 12, 1825,” and required him to appear with the company 66 on Saturday the 17th of September,” did not express the year in which the company meeting was to be held; and because it appeared that the petitioner was duly enlisted, in April 1818, in a volunteer company of artillery in Worcester, and had repeatedly performed military duty in that company, and there was no evidence that he had been discharged from, or that he was not still liable to perform military duty with that company,
    
      J. Davis and Allen, in support of the petition,
    said, that an enlistment in a volunteer company is for an indefinite "time not less than seven years (St. 1809, c. 108, § 34, art. 14), and that although the soldier is entitled to be discharged at the end of seven years, (Commonwealth v. Cutter, 8 Mass. R. 279,) yet that until he applies for a discharge, he continues hable to perform duty in the company. The petitioner was for five years since his enlistment an engine-man, but that did not operate as a discharge. Hamilton v. Shepard, 3 Pick. 226 ; Commonwealth v. Smith, 14 Mass. R. 374. That the petitioner, when warned in May 1825 to appear with the standing company, rendered an excuse to the captain, is no acknowledgment of his liability to serve in this company ; he did it merely for the sake of avoiding difficulty.
    
      Oct. 9th.
    They also insisted on the objection, that the notification did not contain a complete legal notice.
    . Burnside, contra,
    contended, that a person enlisted in a volunteer company is liable, at the end of seven years, to be enrolled in a standing company, unless he reenlists. His contract is then expired, and a demand for a discharge is unnecessary. Commonwealth v. Cutter, 8 Mass. R. 282 ; Commonwealth v. Thaxter, 11 Mass. R. 392. It is like the contract of a servant for a definite period ; at the end of the term he is not obliged to demand a discharge. So if a man enlists for a year in the regular army of the United States, and, when the year is expired, runs away, he shall not be shot as a deserter. But if a demand were necessary in the present case, the petitioner’s making an excuse to the captain of the standing company in May, is evidence of his having demanded a discharge, sufficient at least to estop him.
    
      
       See Revised Stat. c. 12, § 5,17.
    
   Per Curiam.

The objection to the notification is insufficient. The natural construction is, that the meeting was to be in the same September in which the notification was dated, and the party could not be misled.

As to the other objection, we see no difference in prmci pie between this case and Commonwealth v. Cutter. It is clear that a person entering into a contract of enlistment can be held to perform duty only agreeably to his contract ; and we are of opinion, that a member of a volunteer company is held for seven years, and no longer, unless he renews his enlistment. Here the petitioner has not done duty in the artillery company since the expiration of the seven years. He was moreover called upon in May 1825, to perform duty in the standing company, and he offered an excuse for neglect ing to comply with the requisition, and was thereupon excused ; so that there is no ground for supposing that he even intended to continue in the volunteer company.

Petition dismissed. 
      
       On the point of notice, see Revised Stat. c. 12, § 89.
     