
    Bezaleel Fiske versus Timothy Parker.
    A non-commissioned officer or private in the militia, who is ordered by the commanding officer of his company to warn the members, is not justified in wholly disobeying the order, because the number required to be warned by him is unreasonably large, but he must execute so much of the order as lies in his power.
    This was a complaint by the clerk of a company of militia in the town of Holden, against the defendant, a private in the company, for disobeying an order of the commanding officer. The complaint was founded on St. 1821, c. 92, § 10. ,
    At the trial in the Court of Common Pleas, before Howe J., it was proved that an order was issued by the commanding officer of the company, requiring the defendant to warn a certain number of persons, among whom were those mentioned in the complaint, which order was delivered to the defendant on August 25th, 1826, about 9 o’clock in the forenoon, and that he wholly neglected to execute it. The defendant proved that he had only that day in which to execute it; that the day was rainy ; that he did not own a horse ; and that he must have travelled twenty-five or thirty miles to have warned all the persons named in the order.
    The complainant offered to prove, that the duty of warning the company to appear at the muster in question, was imposed with fairness and impartiality, on three members, of whom the defendant was one ; that the other two performed their duty, and one of them did it on foot; that orders to warn the company were usually issued to two or three persons and no more ; that the defendant might have warned all the persons named in the complaint, by travelling seven miles, and one of them by travelling two miles. This evidence was all rejected, and the jury were instructed, that if, under the circumstances, they believed it was unreasonable to require the defendant to execute the order, they would find a verdict in bis favor, although they should be of opinion that he could have warned the persons mentioned in the complaint.
    A verdict was returned for the delendant.
    To the rejection of the testimony offered as above stated ana to the foregoing instructions, the complainant excepted.
    
      J. Davis and Allen, for the complainant.
    
      Oct. 8th.
    
    
      
      Burnside, for the defendant.
    
      Oct. Uth.
    
   Per Curiam.

From the nature of the evidence rejected, the instructions of the judge must have been, that if the jury thought it unreasonable to require the defendant to warn all the persons named in the order, he vvas not obliged to warn any of them. We think this was incorrect. The commanding officer is authorized to require this duty, and a non-commissioned officer or private has no right to inquire into the reasonableness of the order, or, at least, he does so at his peril. It may be that he has a good excuse for not performing it in full, as that he is physically unable, but he is not excused from performing such part of it as may be within his power.

Mew trial granted. 
      
       See Revised Stat. c. 32, § 93, 10P
     