
    
      Ex Parte Gallup.
    Under St. 1809, c. 108, a brigadier-general may discharge a private from a volunteei company, upon the application of the captain of a standing company; and if the private does duty in the standing company, he will not be liable to a fine for nonappearance in the volunteer company, although his discharge should not be duly notified to the captain of such company.
    This was a petition for a writ of certiorari to a justice of the peace, who had sentenced the petitioner to pay a fine for neglecting to appear on the 24th of September, 1821, as a private in a company of artillery. The petitioner, in his defence before the justice, offered to prove that he was living within the bounds of a standing company, of which one Marsh was captain, and which consisted of a less number than sixty-four privates at the time when the petitioner was enlisted m the company of artillery ; and he offered in evidence a brigade order of the 14th of August, 1821, directed to Marsh, discharging the petitioner from the company of artillery, and requiring Marsh to enrol him in his company ; and he offered to prove that the brigade order was duly notified to him, and that he had in consequence of it done military duty afterwards in Marsh’s company. The justice decided that these facts were insufficient in law to excuse the petitioner, because the captain of the company of artillery had never been served with a cop} of the brigade order.
    Dewey, for the petitioner,
    contended that the order was a valid discharge. By the St. 1809, c. 108, § 34, art. 15, it is provided that the brigadier-general may, upon application of the Cuptain of a company of artillery, discharge a private from the company ; but it appears from Commonwealth v. Walker, 4 Mass. Rep. 558, that he may also do it upon the application of the commanding officer of a standing company.
    
      Hubbard, contra,
    
    said the regular way was for the brigadier-general to issue his order, by the brigade major, to the major of artillery ; by whom it is to be transmitted to the captain of the company. The petitioner by his own conduct made himself liable to contradictory duties, and is not to be excused from doing duty in the company in which he enlisted.
   Per Curiam.

The petitioner could not do duty in both companies, for he might have been warned to appear at the same time in each. The statute makes provision for discharging a private upon the application of the captain of a company of artillery, but says nothing about an application of the captain of a standing company ; but the prohibition against enlisting men in a company of artillery, when by m.eans of it the standing " company to which they belong would be reduced to a less number than sixty-four privates, is so express, that the brigadier-general must have power to restore them upon the application of the captain ot the standing company. The rights of the officers as between themselves cannot be presumed to be known by the private, and if he is enrolled in the standing company and warned, and actually does duty in it, tho is sufficient to protect him

Writ of certiorari awarded.  