
    Thomas Frost vs. Valentine Hill, Jr.
    Prior to the operation of the additional militia act of 1839, c. 399, in an action to recover a fine for the neglect of a private to attend a company training, he may-give in evidence as a sufficient defence, that he was laboring under a bodily infirmity and permanent disability at the time of the supposed neglect, although he had not procured a certificate of the surgeon, nor offered an excuse to the commanding officer of the company.
    If it be competent for a State legislature to require of one, who is not by the laws of the United States subject to enrolment, to obtain a surgeon's certificate as the only proof of that fact, it was not required by any act applicable to cases prior to Sept. 20, 1839.
    Writ of Error. The original suit was brought to recover a fine incurred by Frost, the plaintiff in error, by unnecessarily neglecting to appear at a meeting of the company of militia within the bounds of which he resided, and of which Ilill was clerk. The meeting was on Sept. 19, 1839, and the suit was brought Oct. 29, 1839. Frost proved at the trial by a physician, who had frequently prescribed for him, that he -was laboring under bodily infirmity and permanent disability at the time of the alleged neglect, and had been for some years immediately preceding. No excuse had been offered by Frost. Frost objected that the action could not be maintained, 1. Because it was proved that Frost labored under a permanent bodily disability' to do military duty. 2. That the action was not brought within the time prescribed by law.
    The Justice decided that such disability was no defence to the action, and that the suit was brought within the time prescribed by law; and adjudged that Frost should pay a fine.
    
      M. Emery, for the plaintiff
    in error, made the same objections taken before the Justice. Under the first he cited Carter v. Carter, 3 Fairf. 291 ; Pitts v. Weston, 2 Greenl. 349; st. 1834, c. 121; st. 1837, c. 276 ; st. 1839, c. 399.
    
      Leland, for the defendant
    in error, contended, that by the last statute where no certificate from the surgeon of the regiment was produced, no disability could be given in evidence as a defence, unless an excuse had been made to the commanding officer of the company within the time limited. The commanding officer is bound to enrol every one within the bounds of bis company, and the legislature intended that if a- person enroled and notified would not make his excuse, so as to prevent the bringing of a suit, that he should pay a fine.
   The opinion of the court was by

Shepley J.

It appears from the record that the plaintiff in error proved before the magistrate that he was laboring under a bodily infirmity and permanent disability at the time of the supposed neglect and for some years before.”

•It has been decided, that those “ who are permanently disabled either by natural defects or by casualty are excluded from the militia. Hume v. Vance, 7 Greenl. 158. It is said that the acf of the 20th df March, 1839, c. 399, deprived him of the right to make such proof.

It is not now necessary to decide whether it be, competent for a State legislature to require one, who is not by the laws of the United- States liable to enrolment, to obtain a surgeon’s certificate as the only proof of that fact, for the act of 1839 did not take effect in season to affect this suit.

Judgment reversed..  