
    Vanderbilt against Downing.
    ALBANY,
    Jan. 1814.
    No action lies’ tSn or cóm™^pany °f in the militia for quaker to the asadeibquent, “ the6parade,pursuant tj,at purpose, “hlth^gave notice to^ the claim tobe ex-offiiredpropev |eingnentitied tosuchexemption under the statute. There ™press l)lied to suption.
    IN ERROR, on certiorari, from a justice’s court. Downing sued Vanderbilt before the justice, to recover the amount of ® ame paid by him, in consequence of being returned by the defendant below, who was captain of a company of militia, as a delinquent for not appearing at the company parade, to the court-martial, who imposed a fine upon him. There was a trial by jury. It was proved by the plaintiff that when his name was called on the parade, a person, in the ranks, answered that he was a quaker, but it did not appear that the defendant heard him, or that he knew the plaintiff. It was proved that he was, in fact, a quaker, and had a certificate of membership from the society of friends. He was enrolled by a corporal of the company, and warned to appear at the parade. It was admitted that the plaintiff, being marked on the roll for not appearing on the parade, ivas returned to the court-martial as a delinquent, and that . . . , - due notice was given to him to appear before the court-martial, and show cause why a fine should not be imposed on him, &c.
    The jury found a verdict for the plaintiff for 10 dollars and 50 cents, on which the justice gave judgment.
    
      Bloom, for the plaintiff in error.
    1. The militia act (sess. 33. ci 165.) requires every captain or commanding officer of a company to enrol every free, able-bodied male citizen, of the age of 18 and under 45 years, resident within his bounds, and all such persons are subject to the performance of military duty. Certain persons, specially enumerated, are, however, exempted from militia duty, their offices or occupations being of a public nature. Other persons, (s. 14.) being the people called quakers, who would otherwise be subject to military duty by virtue of the act, and who refuse personal military service, are exempted from such service, on paying the annual sum of four dollars for such exemption. This class of persons must claim their exemption, and give notice of such to the commanding officers of the companies, who are required by the act to deliver a list of them to the assessors of the town.
    2. Again, the plaintiff below ought to have appeared before the court-martial, and there claimed his exemption, otherwise, their decision against him justifies the return made by the défoodant, and is conclusive on the subject.
    
    3. The return of the captain to the court-martial being an act of official duty, he cannot be liable to the action, unless on the ground that he made the return wilfully and maliciously, with a view to harass and injure the plaintiff below; nor even on that ground, unless it appear, also, that he knew that the plaintiff1 below was a quaker, and exempt from military service. There is no evidence of any notice to the defendant below of that fact, or that the plaintiff claimed the privilege, or gave any proof whatever, that he was entitled to the exemption allowed by the statute. There is not, therefore, any evidence of malice on the part of the plaintiff in error.
    
      P. Ruggles, for the defendant in error,
    was stopped by the court.
    
      
      
        Ferris v. Armstrong, 10 Johns. Rep. 100.
    
   Kent, Ch. J.

The two last points are conclusive. There is no malice express or implied on the part of the plaintiff in error, and no- action can be maintained against him. The judgment below ought to be reversed.

Thompson, J.

Every male inhabitant above 18 years of age, •and under 45, is, prima facie, liable to be enrolled in the militia; and how are the commandants of companies to know that a person is a quaker, or exempted from military duty, unless he claims his privilege ? It is the duty of the officer to return all defaulters, though they are quakers, to the court-martial as delinquents, unless they claim their privilege, and offer proper proof that they are entitled to the exemption given by the statute.

Per Curiam.

Judgment reversed.  