
    EX PARTE LEOPOLD ZALINSKA.
    Applicant petitioned for the writ of Habeas Corpus, on the 30th day of September, 1864, alleging that he was illegally restrained of his liberty, by Capt. Lev Sutherland, Provost Marshal. Respondent made his return to said writ on the 3rd day of October, and claimed to hold applicant, as a conscript, liable to do military duty under the O. S. conscript law. On the trial of the cause, Frank Swetze testified, that himself and applicant were born in the same town, in Prussian Poland, where they both lived until some ten years ago, when they immigrated to this State, and have lived here continuously up to the present time; that it was customary in Prussian Poland, for the priest or clerk of court to record the births of children born in the country ; that witness and applicant, at the time of their immigration, procured certificates of such records respectively; and that according to these, witness was born in the year 1813, (did not recollect the month) and applicant in July, 1814; that he had kept said certificates until about six years ago, when he lost them. He did not know what officer gave them the certificates, whether a clerk or judge, nor the names signed to them, nor the date, nor any word or words therein, except those concerning the date of his own birth and that of applicant. He looked at said certificates about six months before they were lost, but he had no motive for so doing. Another witness testified that it was customary to record the births of children in Prussian Poland ; that it was usual for emigrants, before leaving there, to procure certificates of their ages ; that Frank Swetze is a man of good character and veracity. Held, that the evidence is insufficient to prove at what time applicant became fifty years of age.
    
      Quere ? Is a party liable to perform military service, under the conscript laws, who, though not fifty years of age at the time of the passage of the act of February 17th, 1864, becomes so prior to his enrollment?
    Appeal from the judgment of the Hon. John H. Duncan, Judge of the 4th District, sitting in Chambers, at San Antonio.
    
      Patrick & Prior, for appellant.
    
      Attorney General, for appellee.
   Roberts, C. J.,

delivered the opinion of the Court.

Judgment affirmed.  