
    * Commonwealth versus John B. Derby.
    The commanding officer of a company of militia issued his orders to A. B., a private in the same company, commanding him to warn the company to appear, &c. The private made a written notification, signed A. B. only, without any declaration that it was made pursuant to the orders of the captain, which notification was left at the usual places of abode of the soldiers in legal time; and it was holden sufficient.
    Where an order of the major-general appointed one day for inspection, and the next for a review, it was holden, that but one fine of four dollars was forfeited by a private who neglected to attend, pursuant to orders, on both the days.
    Where a judgment brought upon certiorari consisted of two parts, the proceedings were quashed as to one part, and affirmed as to the other part.
    This was a writ of certiorari brought to quash the proceedings in a prosecution before Erastus Worthington, Esq., one of the justices of the peace for this county, which was instituted for the recovery of three several penalties, alleged to have been incurred by the respondent for his neglecting to appear, and do military duty, on the fifth, tenth, and eleventh days of October, 1815, he being a soldiec in the company of infantry commanded by Captain Jlsahel Smith, of Dedham.
    
    From the proceedings before the justice, it appeared, that the complainant failed to prove that the respondent was duly notified to attend on the first of those days, namely, the 5th of October, and he was accordingly acquitted of that charge. But on the other two charges, the justice having been satisfied that the respondent had been duly notified, and the prosecution having, in the opinion of the justice, been well maintained in other respects, he proceeded to adjudge, that the said Derby had forfeited the sum of four dollars for not appearing on the said tenth day of October, and another like sum for not appearing on the said eleventh day of the same month, and he thereupon rendered judgment for the sum of eight dollars for the two several offences, and for the costs of prosecution.
    Metcalf, for the respondent,
    took two exceptions to the proceedings. The first related to the manner of the notice or warning to appear. It appeared, that Captain Smith issued his orders to one Daniel Mann, a private in his company, commanding him to warn the company to appear on the two days specified. In compliance with these orders, Mann made out a written notification to the respondent, requiring him to appear on the said tenth day at eight o’clock, A. M., for inspection, and on the said eleventh day at six o’clock, A. M., for review. The said notification was * signed “ D. Mann," without any addition, or any declaration that it was issued by authority of the commander of the company; and it was left at the respondent’s place of abode by a servant of the said Mann. The said several musters were brigade, or battalion, or division, reviews, under orders from the major-general of the division, which were issued to the several commanders of brigades on the 11th of September, 1815 ; and they were required to cause the several regiments and battalions under their command to parade by battalions on the 1 Oth of October then next, for inspection ; and they were likewise required to cause them to march to Low Plain, in Dedham, on the 11th of the same October, there to parade in line of division for review. Pursuant to these orders, the commanding officer of the first brigade issued his orders to the officers commanding regiments, requiring them to order their regiments to meet on the said several days ; and the orders to the several commanders of companies were conformable to the foregoing.
    The other exception was, that there was but one offence ; and that the appointment of two days was made only on the ground, tha the inspection and review would occupy more than one day.
    
      Harrington, in support of the proceedings.
    The cause being continued nisi for advisement, the opinion of the Court was delivered at Cambridge, the succeeding week, by
   Parker, C. J.

With respect to the first error, namely, the want of legal notice, the objection is, that it does not appear, on the face of the printed order left with the respondent, that the person who signed it was either a non-commissioned officer or a private in the company, or that he was any thing but a mere stranger, having signed his name “ D. Mann,” without any addition, and without any words tending to show that he acted by order of the captain. This is certainly irregular, as it may leave the soldier, who is warned, uncertain whether any such orders have actually * issued from lawful authority. But, as it was proved in the case before the justice, that a regular order was issued to Mann by the commanding officer of the company, and that a notification was actually served upon the respondent within the time prescribed by the statute, we do not think, that, for this cause, the proceedings ought to be quashed. As such an irregularity may, however, be the cause of delay and difficulty in the trial of processes before justices of the peace, we hope it will be avoided in future.

The other objection is of a more general nature, and has received the deliberate consideration of the Court. The question it involves is, whether the duty, which the respondent was required to attend on the 10th and on the 11th of October, pursuant to the orders of the commanding officer of the company, was one aggregate duty, composed of several branches ; so that the non-performance was one offence, and one penalty only was incurred.

The duty which was required was assigned by the major-general of the division, pursuant to the twenty-fifth section of the militia law now in force ; which provides, that the troops of each division shall be paraded once in each year for review, inspection, and discipline, either in brigades, regiments, or battalions of regiments, at such times as the commanding officer of the division may order.

The whole authority emanated from the major-general ; and the question is, whether the duty he required is divisible, so that any person, neglecting to appear on both the days assigned by him for the purposes of inspection and review, may be considered as having committed two offences, namely, one in neglecting to appear on the day assigned for inspection, and the other in being absent from the review.

Taking into view the general principle, that, in the construction of penal statutes, if any obscurity occurs, the most lenient opinion is to prevail, we are satisfied, that the justice erred in considering the respondent guilty of two several offences, and in exacting of him a double fine. The * duty required by the commanding officer of the division was but one duty, that of inspection and review ; both of which acts may be performed in one day, or may require more than one day, according to the form in which the troops shall be assembled, namely, in divisions, brigades, regiments, or battalions ; it being discretionary with that officer, by the statute, to call them out for that purpose in either of those forms. But he may not do this more than once every year ; unless in case of such emergencies as are provided for by the statute. The purpose for which they are thus to be called in any of these forms is, for review, inspection, and discipline ; which is one complicated duty ; and which, although divisible for the convenience of the commanding officers, and the better regulation and appearance of the troops, is not divisible for the purpose of multiplying the penalties prescribed for neglecting to appear on either of the days or times which may be necessary for carrying those purposes into effect.

By the twenty-ninth article, for governing the militia when not in actual service, it is provided, that every non-commissioned officer or private, who, being duly ordered, shall unnecessarily neglect to appear for any battalion, regimental, or brigade inspection or review, at the time and place appointed, shall forfeit four dollars. It is obvious, that the legislature contemplated that the appearance, the neglect of which was to be so punished, was one act of duty, and that the fine, which is larger than any other to which privates are subject, applied to the whole subject-matter, and not to each branch of duty of which the aggregate might be composed.

The order of the captain, to meet on the day preceding the review, cannot be considered as an order for a company training ; for his order was bottomed upon the division order, issued by the major-general ; and, if it might be considered in this light, the adjudication was erroneous ; for, in that case, the fine could only have been two dollars, according to the twenty-eighth article.

* The justice states in his record, that the trainings, which the respondent neglected to attend, were brigade, or regimental, or battalion reviews, referring to the order of the major" general ; and the captain of the company must be supposed to have acted altogether in subordination to that order. So that the offence consisted in not attending the brigade review and inspection which was ordered by the major-general; and, if this were capable of being divided into two offences, with equal reason there might have been three, if the major-general had ordered the brigades to appear for review, inspection, and discipline; provided a different day had been assigned for each of those objects.

It is true, that, by this construction, the delinquent who attends on one of the days appointed is subject to the same penalty with him • who neglects both. But we cannot, for this reason, deviate from the plain intent of the legislature. It is probable, that one day was thought sufficient for the purposes specified in the twenty-fifth section of the statute, and the penalty was deemed sufficient for this breach of duly. At any rate, if the militia service requires the exaction of greater penalties, the legislature will enact them. Hitherto, we are persuaded, that one fine only has been exacted in cases like this before us, under a general belief that there was but one offence committed ; although the orders issued by commanders of companies contemplated two distinct cases of militia duty, to be performed on two successive days.

The order or adjudication complained of was, therefore, erroneous, as to one of the fines imposed upon the respondent. We have been led, however, to consider whether, for this cause, the proceedings must be quashed in the whole ; or whether they may not be quashed in part only, leaving the judgment in force with respect to one of the fines, and the costs. And we are satisfied that this may be legally done, and that it will consist with justice in the present case.

* The justice has distinctly adjudged upon two several offences ; one as having been committed on the 10th, and the other on the 11th, of October; and he has adjudged the respondent to have forfeited the sum of four dollars for each of those offences, both of which are summed up in the close of his order or judgment.

It was settled with great deliberation, in the case of The Commonwealth in certiorari vs. The Blue Hill Turnpike Corporation, that a judgment of the Court below, consisting of several distinct parts or orders, might be quashed for those parts which are bad, and remain for those which are good, even upon certiorari. And the case before us is as suitable for such a discrimination as the case now cited, or those which are referred to in the opinion of the Court upon that case. Here there were two distinct informations, and the justice considered that there were two distinct offences ; and he proceeded to adjudicate upon them severally. It turns out, that the whole of-fence was committed on the first day, upon which the respondent was ordered to appear ; and that there was no new or additional offence on the last day. The judgment was then right as to the first day, and wrong as to the second.

The proceedings must, therefore, be quashed, so far as they respect the fine, which was ordered for non-appearance on the 11th of Octooer; but, so far as they respect the fine for non-appearance on the 10th of the month, and for the costs, they are affirmed. 
      
      
        Stat. 1809, c. 107
     
      
       5 Mass. Rep. 420.
     