
    KNIGHT v. PAYNE, PAYMASTER.
    Militia law — fines—notice—court of inquiry.
    The militia law requires notice of the fines assessed by the court of inquiry to be posted, and . unless that is done, a right of action for the fine is not made out against a delinquent.
    On trial for such fine, the paymaster should prove the notice, which should appear on the record.
    Error to the Common Pleas. This case was originally brought by Payne before a justice of the peace, for a fine of $¡10 25, assessed against the defendant as a militia officer. At the trial, the plaintiff produced a certified list from the court of appeals, showing a fine annexed to Knight’s name of $10 25. The defendant then offered evidence to show that he was not liable to fine, which the justice refused, and gave judgment for the plaintiff. The proceedings were removed to the Common Pleas by certiorari and affirmed. It is now assigned for error, that the court should have reversed the justice’s proceedings,
    
      Perkins, for the plaintiff,
    cited the twenty-eighth section of the militia law of 1820, and the thirty-ninth section of the act of 1831; 3 Cranch, 331; Com. Dig. 413.
    
      J. C. Paine, contra,
    cited 5 O. R. 441; 1 Phil. Ev. 150.
   Bt the Court.

The militia law requires of the court of inquiry, after it has acted on the list of delinquents, to cause a notice to be posted, and suit brought within thirty days thereafter, if the fine is not paid. There is' no right of action, if the list has not been advertised the time required. The paymaster should have proven the notice, and the omission to do so left him with no right to a judgment. The judgment is reversed with costs, and remanded to the Court of Common Pleas, with instructions to reverse the judgment of the justice, and set the cause for hearing under the statute.  