
    Grace against Wilber.
    NEWYORK,
    Oct. 1813.
    An infant, under 18 years of age, is not liable to be enrolled inthe militia; and if with the consent of his father, he agrees to go as a substitute for another, into actual service for a certain sum of money, which is paid, such a contract is not binding on the infant; and if he after-wards deserts the service,he cannot be compelled to return, and an action of trespass and false imprisonment will lie againes a person who apprehends and detains him as a «>- serter.
    
    THIS was an action of trespass and false imprisonment, brought by the plaintiff, being under 21 years of age, by his next friend. The defendant pleaded not guilty, with notice of a special justification. The cause was tried at the Albany circuit, in April, 1813,before Mr. Justice Yates.
    
    The plaintiff proved, that in the autumn of 1812, the defendant apprehended the plaintiff in Albany, as a deserter, by virtue of an advertisement, and took the plaintiff to Troy, where he was delivered to the sheriff who confined him in gaol for two or three days, when he was brought before the recorder of Albany, on a habeas corpus, and discharged. The plaintiff at the time of his apprehension by the defendant, was under the age of 18 years. Two witnesses testified that on the day Captain Oliver Lyon's company, to which the plaintiff belonged, was marched to the northward, the mother of the plaintiff applied to the captain, and objected to the plaintiff’s going on account of his being under age.
    The defendant proved by Oliver Lyon, that he was a captain in the 55th regiment of the militia of this state; and, under orders from the governor and commander in chief, marched with his company, on the 19th of September, 1812, to Plattsburgh, where he arrived the 23d of the same month. The plaintiff was a private in his company until the 30th of September, when he deserted, and never afterwards returned. The company, on its arrival at Plattsburgh, was placed under the command of Colonel Vosburgh, who, on the 1st of October, issued an advertisement stating the desertion of the plaintiff and others, and offering rewards for their apprehension. This advertisement Captain Lyon sent to the defendant, requesting him to apprehend the plaintiff The witness denied that he had the conversation with the mother of the plaintiff as stated by the plaintiff’s witnesses.
    The defendant offered in evidence the general orders of the commander in chief, which were objected to by the plaintiff’s counsel, on the ground that the defendant had not shown a request to the governor on the part of the President of the United States; but the objection was overruled by the judge, and the general orders read in evidence. The advertisement for the apprehension of the plaintiff and others was also read in evidence.
    
      
      Thomas Bennet, a witness for the defendant,
    testified, that hss was a Pr^’ate ™ Captain Lyon's company, and it being inconvenient £or him to go on this tour of duty, the plaintiff, who came Troy, and expressed a willingness to go, agreed with the witness to go as his substitute for thirty dollars and a suit of uniform clothes; and Captain Lyon agreed to accept the plaintiff as a substitute. The plaintiff said his parents were willing that he should go; and on the morning the company marched the plaintiff’s mother claimed his pay, and the witness advanced 20 dollars, and gave the plaintiff the suit of uniform clothes, and also gave his note for 10 dollars, payable to the plaintiff’s father, which note was afterwards endorsed to one Keeling, to whom the witness paid it; that on the evening of the day the company marched, the father of the plaintiff said to the witness that he hoped his son would make a good soldier. Another witness testified that on the day Captain Lyon's company marched from Troy, he asked the plaintiff’s father if he was willing that his son should go, and the father answered that “ his son was his own master, and might do as he had a mind.” Other witnesses also testified to the assent of the father to the plaintiff’s going, if he got his pay. This evidence the defendant’s counsel insisted was a complete and conclusive bar to the action, and requested that the judge would so decide; but the judge charged the jury that the evidence given on the part of the defendant was not sufficient to bar the action; that if the plaintiff had been of a proper age it would have been a good defence ; but that the whole transaction was illegal on account of the plaintiff’s infancy; that the plaintiff had a right to leave the company when he pleased; and any attempt to restrain him was illegal. The jury, under this direction, found a verdict for the plaintiff for thirty-five dollars. A bill of exceptions was tendered by the defendant’s counsel to the opinion of the judge.
    
      J. Russell, for the defendant,
    contended that the plaintiff, having voluntarily enlisted, with the consent of his father, as a substitute, might be coerced to perform military duty. Though the militia laws declare that persons between the age of 18 and 45 years, shall be liable to military duty, and be enrolled in the militia, yet it nowhere prohibits persons under the age of 18 years from voluntarily entering and serving in the militia. No person can be compelled actually to perform military service, but may make his election • to enter, or pay a fine not exceeding one year’s pay. When entered, and in service, the plaintiff was subject to the articíes of war. If a person, in consequence of his own voluntary act, sustains an injury, no action lies. Volenti non fit injuria.
    
      Foot and Paine, contra.
    A father has no power or authority over his son to compel him to enter the army or navy, or to perform any service that may endanger his life: nor can he, for the same reason, compel him to perform such a service for another person. This is not that kind of service to which a son may be bound with the assent of his father. The consent of the father, therefore, in this case, was idle and nugatory. The case, then, rests wholly on the contract made by the plaintiff, and as he was under age, his contract was voidable. He does not stand on the same ground as a person liable by law to perform military service. Here is a contract between the minor and the government, and the government stands in the same situation as any other person, in regard to a contract with a minor. Such a contract cannot be enforced. Again, the defendant was not an officer of the militia, and was bound to show a sufficient authority to apprehend the plaintiff. The order of the President of the United Stales ought to have been shown.
    The officers in the army have no authority or discretion to take substitutes under 18 years of age; otherwise we might have an army of beardless boys.
   Per Curiam.

The decision of the judge was correct. An infant under 18 years of age is not liable to be enrolled in the militia. His agreement to serve as a substitute was not a contract binding upon him, and having renounced it and quitted the service, he could not be lawfully compelled to return. It would be against the settled principles of law to hold an infant to any contract or engagement not specially provided for by statute, or not made on account of necessaries. The militia service is not a duty required of an infant under 18, and if he is not bound by his contract he is not bound at all; for there was no binding act of the father in the case. The father had no authority to bind; nor did he, in fact, do it, in this instance.

The motion by the defendant to set aside the verdict must, therefore, be denied.

Motion denied.  