
    Keys v. M’Fatridge.
    Decided Nov. 4, 1817.
    1. Militia — Recovery of Money Paid Substitute — Case at Bar. — If a militia man employ and pay a substitute to perform his tour of duty, and thereupon he discharged by the commanding officer, he cannot recover back the money paid, upon the ground that the defendant, after repairing to the place of rendezvous, and commencing the march, was discharged as a supernumerary, and therefore, never performed the tour of duty.
    2. Bill of Exceptions — Certification of Facts — Reversal, of Judgment. — Upon the Court’s overruling a defendant’s motion for a new trial, if he file a bill of Exceptions to such opinion, stating all the facts proved to the jury; from which it appears that, upon the merits, the plaintiff ought not to recover; the judgment ought to be reversed, and a new trial granted.
    After a verdict for the plaintiff in as-sumpsit, for $102 damages, the defendant moved for a new trial, and, his *motion being overruled by the Court, filed a Bill of Exceptions, stating that, “upon the trial of this cause, the plaintiff to support his action, proved, that he was enrolled in a company of militia in Washington County; that, in the year 1813, part of the militia of said county were called for by the constituted authorities for the purpose of defending Norfolk, a town about 430 miles distant from said County of Washington; that the number required from the Company to which the plaintiff belonged were detailed; but there being a deficiency in a volunteer rifle company belonging to the 70th Regiment, a draft took place, by order of the commanding officer, to supply the said deficiency, when the plaintiff was drafted and taken as one of the said rifle company, and put upon the first requisition, which was to march in a few days ;■ — that the plaintiff, shortly after this, delivered to the defendant a horse worth $6S, and $62 in cash, to go as a substitute, and perform his the said, plaintiff’s tour of duty to Norfolk, according to an agreement then made between them; that the defendant made preparations to perform for the plaintiff said tour of duty as his substitute, at considerable expense, and was received by the Court Martial as a substitute for the plaintiff; and the proper officer, in con sequence thereof, gave the plaintiff a regular discharge from performing said tour; that, a few days after this, the said militia composing the first requisition were ordered to march, and the defendant, pursuant to said orders, marched, with the rest, to the seven mile ford, a few miles distant from the place of rendezvous, at which place the lieutenant Colonel of said County of Washington, being the commanding officer, finding that he had more men than had been required, the said troops by his order drew lots, to designate the soldiers who should return to their homes; that the defendant was one of those who drew to return home, and the proper officer thereupon gave him a discharge from performing said tour of duty; and the defendant thereupon returned home, and did not go any further with said troops; which was all the evidence given in the cause on either side.”
    *Judgment being entered according to the verdict, the defendant appealed to this Court.
    Wickham for the appellant.
    Stevenson for the appellee.
    
      
       Bill of Exceptions — Certification of Facte — Reversal of Judgment. — On this subject, see foot-note to Bennett v. Hardaway, 6 Munf. 125; monographic note on “Bills of Exception” appended to Stoneman v. Com., 25Gratt. 887. See also, monographic «oís on “New Trials” appended to Boswell v. Jones, 1 Wash. 822.
      The principal caséis cited in Bennett v. Hard-away, 6 Munf. 126; Cluverius v. Com., 81 Va. 863; Moses v. Old Dominion, etc., Co., 82 Va. 27, 28.
    
   JUDGE ROANE

pronounced the Court’s opinion, that, upon the merits, as disclosed in the bill of exceptions, the appellee had no right to recover.

The Judgment was therefore reversed, and a new trial granted.  