
    Commonwealth versus Horace Frost.
    One who is held by law to do duty in the militia may enlist in an independent company, although under the age of twenty-one years, and such enlistment will take him out of the standing company of militia in which he would otherwise be liable to do duty.
    This was a writ of certiorari, sued by the respondent, to reverse a judgment rendered against him by a justice of the peace for this county, for neglecting to appear at a muster for inspection of a company of militia, on the third day of May, 1814.
    
      * Bigelow, for the respondent,
    took several exceptions to the conviction, upon one only of which the Court gave an opinion. It appeared that Frost was liable to the fine imposed upon him, unless his enlistment in a company of artillery within the same brigade, as a musician, was a legal excuse. And as to this, it appeared that he arrived at the age of eighteen years on the 1st of May, 1813. On the 15th of April, preceding, he enlisted in the said company of artillery ; on the 4th of said May was enrolled therein ; and ever since, and particularly on the said third day of May, 1814, had done duty therein.
    
      Josiah Mams, in support of the conviction,
    argued, that the enlistment, having taken place before Frost was eighteen years of age, was void. And he argued, that this was such a contract as a minor under twenty-one years was not competent to make.  If. the enlistment into the artillery company was void, or even voidable, he was duly enrolled in the standing company, and so liable to the fine imposed on him.
    
      
      
        Commonwealth vs. Harrison, 11 Mass. Rep 63. — Commonwealth vs. Cushing, Ibid. 67.
    
   Per Curiam.

The enlistment of Frost in the company of artillery exempted him from liability to train in the standing company, to which he would otherwise have belonged. This enlistment was not void on account of his minority, though voidable by himself, had he chosen to have avoided it. The law, having made eighteen years the age for military duty, necessarily gives the power at that age to enlist in any company, which is, in fact, a part of the militia. It is merely choosing the kind of militia service he would perform ; and to say, that the enlistment is not binding, would be to break up many independent companies, which may be considered the élite of the militia.

Proceedings quashed.

[See Sup. Rev. Stat., 1840, Chap. 92. — Ed.]  