
    Solomon Wilbur, jun. Plaintiff in error, against Lawrence Grace, jun. Defendant in error.
    
    if a person ““eighteen”®6 not‘liabie’ to military duty, voluntarily enters the service, as a soldier, and being tory service, maybe lawful-I’dcserfer^and restfnvUiimWs Bot action6 t0
    This cause came before this court on a writ of error from the,supreme court.-, For the facts and-the judgment of the su» preme court in the case, see vol. X. p. 453-455.
    J. Russell, for the- plaintiff in error,
    contended, that persons
    under the age of 18 years, might be enrolled in the militia, and unless they applied for relief and to be discharged’,'according to-the-, statute, they would be subject to the orders of their" commander. The 8th section of the statute (sess. 32. ch. 165.) to organize the militia,- passed-the' 29th March, [1809, declares that the age and ability of any person to bear arms shall be determined by the captain or coitimanding oEcer of the com-pony, with the right, of appeal to the commandant of the regiment. If a person thus enrolled is not; discharged, and can be compelled to do military düty, he must be equally liable to military service, when he enters voluntarily. Though the enrolment be erroneous, yet the officer acting under competent legal authority, cannot be liable to an action. This principle is laid down in Wilkins v. Despard,
      
       and was recognised by Kent, J. in the case of Henderson v. Brown.
    
    In the present case there was a jurisdiction over the subject matter, and a right of appeal to the party aggrieved.
    Again, the defendant having voluntarily joined the militia in the service of the United States, he was, in fact, a soldier of the United States, and the iaw of congress on the subject applied to him. He was employed in the service of the United States, and entitled to pay, and subject to the rules and articles of war.
    The acts of infants are not9 in all cases, void.
    
    
      Foot and Paine, contra,
    insisted that the officers of the militia had no jurisdiction or authority whatever over persons under the age of 18 years, or over 45 years. If the defendant in error was not within the laws of this state or of the United States, relative to the militia, the argument on the other side wholly failed. These laws say only that all white mate citizens? above eighteen, and under forty-five years of age, shall be enrolled, See. There is no proof, in this case, that the defendant in error ever was enrolled. How, then, can he be deemed a militia man ? If persons not within the ages defined by the statute, being enrolled, may be subjected to military service, as well may females, who should be enrolled, or who should volunteer, unless they were discharged, or appealed to the commanding officer, be made subject to military duty.
    Again, the order of the governor was to Captain Lyon’s company, &c. It did not order out any infants or substitutes» The defendant in error did not belong to Captain Lyon’s company. Bennet was the person ordered into service.
    On the ground of contract, the defendant cannot be bound at all, except for necessaries. The law is clear and settled on this subject. The moment an infant dissents from his contract, he dannot be compelled to a performance. The consent of the father or mother does not alter the case ; nor can it give any force or validity to the agreement. Nor did the laws or government ef the United States authorize such an agreement
    
      
      Russell, in reply.
    The statute, it is true;. directs- ail male persons, above eighteen and under forty-five years of age; to be enrolled; but the commanding officer is constituted the judge of the age and ability of such persons.. The term enrolling is merely directory. Such as voluntarily enter the companies of light infantry, &e., belong to the companies, as much as if they had been first enrolled.
    The 69th section of the militia act authorizes the commandants of companies, when there is an order for a draft from the militia, to accept substitutes in place of the persons drafted. There is no; reason for any distinction, lb this respect, • in case the whole company is ordered into service, without any draft being made.
    That Vosburgh had jurisdiction ease, from the principle established in the case of Henderson v. Brown, and which is well laid down by Thompson, J. Here was a legal and proper warrant from the. commandant of the regiment, and the. plaintiff in error’ was acting under it, by request of Captain Lyon, ministerially. ■■ A ministerial officer is always protected; unless the insufficiency of his authority appears in the warrant or order, under which he acts. It does nót appear that the plaintiff in error knew, or had any intimation, that the defendant in error was" under eighteen; years of age. Captain Lyon, who is entitled to credit,, denied any such notice. '
    
      
      
        Webster's ed. Laws, vol. 5. p. 535.
    
    
      
       5 Term Rep. 112.
    
    
      
       1 Caines' Rep. 102.
    
    
      
      
         3 Burr. Rep. 1717. 1802.
    
    
      
      
        Cro. Jac. 484. 3 Caines' Rep. 333.
      
    
   P. W. Radcliff, Senator.

The real question in this cause is not whether an infant under the age of eighteen years,, enrolled in the militia, and neglecting to avail himself of his right to appeal to the commandant of his regiment, is or is not, until such appeal, liable to military service. It does not appear by •the case, hor was it alleged oil the argument, that the defendant ever resided within the bounds of Captain Lyon’s, company, or was even enrolled, or liable to be enrolled, therein. On the contrary, it does distinctly appear that another person belonging to that company, when it was about to march on a tour of duty to the frontiers; applied to this defendant,, and, foria reward stipulated between them, induced, him to agree, with" the consent of the captain, expressly obtained for that purpose, to take his place in the ranks, as a substitute for the former.. This was the first moment at which he appears to have had any connexion whatever with the company. The question, therefore, is, whe* ther an infant under the age of twenty-one years (no matter whether under eighteen or not) is bound by his contract to serve as a substitute in a company of militia, ordered out upon public duty.

The general doctrine, with respect to the liability of infants upon contracts, is perfectly well settled, and universally understood. It is, that no such contract is binding, unless made for necessaries, or authorized by statute. If, indeed, the infant choose to carry it into effect, he shall he permitted to do so, for his own advantage, and while he continues in the execution of it, it shall be deemed a valid performance. But the moment he chooses to recede from it, and acts upon a determination to do so, its obligation ceases, and he is wholly absolved, These principles are applicable here, and are perfectly decisive of the question before the court.

The defendant having voluntarily marched with the company to the place designated in the orders, the officers under whose command he acted, would, undoubtedly, be held justified for any restraint imposed, or discipline inflicted upon him while he continued in service. But the moment he chose to avail himself of his right to withdraw from that service, their right to control him ceased, and there was an end of the contract. It follows, that the plaintiff, acting under the advertisement of the colonel, could have no right to take him as a deserter, and, consequently, that the decision in the court below was, in all respects,♦correct.

It has been argued ihat the contract was made with the consent and approbation of the father, who even received a part of the consideration for it, and that it is, therefore, to be held obligatory. Put this was not an enlistment unler the laws of congress, allowing in certain cases the enlistment of minors with the consent of their parents, masters, or guardians. It cannot, therefore, be supported on that ground. Nor can the father’s consent, in any view of the case, give it validity, or in any way affect the question. It was still the contract of an infant, and void, because relating to a subject on which he was incapable of binding himself. And even if it could be regarded as a' contract of the father, it would be equally void, as against the son, and,, therefore, equally unavailing here; a parent having clearly no right to bind his són to military service.

The judgment of the court below ought, in my opinion, to bé affirmed. ....

Cochran, Jónés;,,WendEee', and SíeWarv, -'Senators, 'were ' of the same opinion. • :. \. , ■■ ''

Sanford, Senator.

A person not liable, to military duty, voluntarily enters the 'service, as a soldier, and being actually in, military service, deserts. . Candle be apprehended as a deserter ? This is .the sole question in the' cáuse. ' Ttio q;uéstión.isi not-' whether 'the contract is valid,' or void ;• nor is it whether the soldier, is entitled' to be discharged from the service dr not. The contract' may be void; and he may be entitled to his discharge ; but it does not follow that hé is to, be his pwn judge, and to discharge himself,by desertion,, ■ Any person detained by military authority, or military fbrce, may, obtain his discharge, if he" is entitled to it, by application to the proper civil authorities. ■ But a soldier, in actual; service, cannot be allowed to desert, at pleasure. . The right to detain him; and to arrest him, if he deserts, results-directly and necessarily from the ‘laws of the United States and of this state, concerning the militia, and military service; The apprehension of this deserter;was, - therefore, lawful; and the action-cannot be maintained.

Tjje judgment of the supreme court ought to be reversed.

A majority of the court being of the. same opinion; it was, .thereupon,, ordered and adiUdoed, ¡Ehat. the;judgment of the supreme court be reversed,v&ti> -: -• ;•

Judgment óf-rdvérsaL , 
      
      
         April 1814. For reversing, 17. For affirming, 5.
      
     