
    * Commonwealth versus David Cummings.
    A private in a volunteer company of militia, removing out of the limits, within which such company was authorized to be'enlisted, is not bound afterwards to do duty in such company, and may be enrolled in the regular militia company, within the limits of which he dwells.
    A warning to a soldier in the militia to appear at a muster, being left at his workshop, is not a sufficient notice.
    Certiorari to remove the proceedings had upon a complaint of one Mosley French, clerk of a company of militia, to a justice of the peace, alleging that the respondent, Cummings, had unnecessarily neglected to appear at a muster of the company. The facts appearing were as follows, viz.
    
    About five years before the neglect charged, Cummings resided within the limits of a company of cavalry commanded by T. Emerson, which was raised by voluntary enlistment and attached to the regiment of cavalry in the first brigade of the third division ; and he did duty with that company, from that time until his removal hereafter mentioned, and was never discharged from the same. The rolls of the company had been very irregularly kept, but at the time of these proceedings Cummings was enrolled therein.
    About two years before this complaint was preferred, he removed from within the limits of that company, and came to reside within the limits of the standing company of militia commanded by Captain Mastín, which is in the second brigade of the same division, in which company he was enrolled, and for neglecting to do duty in which he was in this case prosecuted and fined.
    It did not appear that he could not conveniently do duty with the said company of cavalry ; but since his said removal he had in fact mustered therein, and that after he had been warned to do duty in Mastin’s company. He had, however, been excused by a certificate rrom the surgeon of the said regiment of cavalry.
    The appointment of the complainant, as clerk, was upon the back of his sergeant’s warrant as follows: “ Tewksbury, May, 1812 This may certify that the within warrant appoints Hosley French clerk of said company. Samuel Hardy, captain.”
    [ * 195 ] *The warrant to the warning officer directed him to notify and warn all the persons belonging to Captain Mastin’s company, residing within a certain district, to appear, &c., within which district Cummings resided ; but his name was not in the warrant, nor in any wise attached to the same.
    The notification, warning Cummings to appear, &c., was not given to him in person, but was left at his shop where he usually worked, and which was separate, but not far distant, from his dwelling-house, where his family resided.
    
      Nichols, for the respondent.
    The removal of Cummings did not of itself operate a discharge from the company of cavalry, to which he belonged. The limits of these volunteer companies are fixed only with relation to their first organization and enlistment; and although a member of one of them removes his domicil beyond those limits, he is still a member and bound to do duty in the company for the term of seven years, unless before the expiration of that term he obtains his discharge from the commanding officer of the brigade ; as is provided in the 14th and 15th articles of the 34th section of the act for regulating, &c. the militia . It is true that a removal to an inconvenient distance would be a sufficient reason for a discharge; and there can be no doubt, that it would always be considered so by the officer having authority to grant such discharge. By the 9th article, officers of the standing companies are not to be discharged on account of their removal out of the bounds of their command: unless the removal be to so great a distance, that the major-general shall think it inconvenient for them to discharge the duties of their office. The two companies in this case being in two different brigades makes of itself no difference; for in fact some companies of the militia are made up from two brigades, although they are still under command of one brigadier only.
    [ * 196 ] * The certificate of the appointment of the complainant as clerk is wholly insufficient, and indeed is without mean ing or effect. It certifies nothing; or if any thing, a falsehood.
    The ] 8th section of the statute requires notice of the time and place of parade of a company to be delivered to each man in person, or left at his dwelling-house. The notice in this case was left at Cummings’s workshop, which is not, in the sense of the law, his place of abode or domicil. And if it had been 'duly served, yet the name of Cummings not being in the warrant, the notice would have neen served without authority, and so without effect.
    
      
      Locke, for the commonwealth.
    The respondent had lived two years within the limits of Captain Mastin’s company, without doing :ny militia duty whatever. It was the right and the duty of the captain to enrol him in his company. The same reason which prescribes the limits of a volunteer company at its formation, applies with equal force when one enlisted removes out of those limits ; especially when the removal is to a place out of the brigade. The greatest inconveniences will arise from a contrary construction. If a removal out of the brigade does not operate the discharge of a private, a removal into the most remote part of the state would not have that effect; and the captain must send his notifications to any imaginable distance within the limits of the commonwealth, and the warning officer and the private must travel that distance, and this without any compensation.
    The statute does not require the notice to be left at the dwelling-house, but the usual place of abode, of the party warned. It is quite as conformable to the spirit and intent of the requisition, to leave it at his workshop, where it is to be presumed he spends much the greater part of the day. In the present case, the shop was within the curtilage of Cummings’s dwelling-house, and so in aw a part of it. The objection to the certificate of the appointment of the warning officer seems more captious than important.
    
      
      
        Stat. 1809, c. 108.
    
   * Parker, C. J.

The question, which appears most [ * 197 J to have engaged the counsel in support of the certiorari, viz. whether the removal of the soldier beyond the limits of the company of cavalry, and even into another brigade, and his fixed residence in his new domicil, did not make him liable to do duty in the company of militia within whose limits he had removed, we have considered of some importance, as it is likely to have an extensive influence.

There is nothing positive or direct in the law regulating the militia, upon the subject; but we think the meaning of the legislature may be clearly inferred from the general tenor of the sections of the act which relate to the raising of volunteer companies. It is apparent that these companies are to be raised within the brigades, and that none can be lawfully enlisted without them. It seems also that the executive department, by virtue of authority vested in them by the second section of the statute, have assigned certain limits, within which this company was to be raised. Now, if a person, not living within the limits of one of these companies, cannot lawfully be enlisted into them, we think it follows of course that, when such person has removed permanently beyond those limits, he must cease to belong to the company, and may be enrolled in the regular militia company, within the limits of which he dwells. If he should be held to serve two masters, it must be of his own choice; for upon application to the commander, stating his removal, he would be entitled to a discharge.

We do not think that the section of the act, which provides for the continuance for at least seven years in the company into which a soldier has vduntarily enlisted, can be held to apply to those who have removed out of the brigade, within which the company is raised. If it should, a person once enlisted might be required to attend a muster, however distant his domicil upon removal may be from the limits of the company.

* 198 ] * As to the manner in which the clerk was appointed, or rather as to the manner in which his appointment is certified, there appears a defect only in form, not in substance.

But with respect to the service of notice upon the respondent, for. the training which he did not attend, which was the offence complained of in this process; we are sorry, after much consideration, to pronounce it bad; but we are obliged so to do. The statute requires that the notice shall be delivered to the soldier in person, or left at his usual place of abode. It appears by the record brought before us, that the notice to the respondent was not delivered to him in person, but left at his shop or place of business. There was no evidence that he had received actual notice; and he can only be bound, if it be served according to law. The usual place of abode has been always construed to be the dwelling-house. It has this application in all our civil processes; and it is impossible to give it any other. There is also sufficient reason for the legislature to require this kind of service ; for in a man’s house some one is always present, who will receive the notice, and will communicate it. But a man may be often absent from his shop, without leaving any one to act for him in his absence. We think, for this cause, the proceedings are incorrect, and ought to be quashed.

Proceedings quashed.  