
    Chester Moody versus William Ward.
    Officers commanding the militia at musters are answerable for damage accruing to citizens from firing guns in or near the highway by the soldiers under their command.
    By the statute of 1809, c. 107, § 19, the commanding officer of militia on duty may not include any highway within the parade ground, so as to prevent travellers from passing upon it.
    This was a special action upon the case against the defendant, who was lieutenant-colonel commandant of a regiment of militia, for damages which the plaintiff sustained by the death of his horse, occasioned by the firing of the troops under the defendant’s command.
    It appeared at the trial, which was had at the last April term in this county, before Putnam, J., upon the general issue of not guilty, that the defendant had mustered his regiment, the place of parade being partly upon the travelled part of the turnpike road in Chesterfield, which road is of the width of six rods. This was the ground usually occupied as a place of parade for the regiment; and there was no other way or path, upon which the * plaintiff could have travelled, than that on which he was travelling, when his horse was killed, as hereafter mentioned.
    The defendant, in the afternoon, having called his officers to' the centre, directed the captains to take the command of their respective companies, and to dismiss them when they thought proper. The defendant, with the other field officers, then retired to a public house adjoining the road where the regiment was mustered. While the field officers remained in the house, the plaintiff was passing the road in a wagon, drawn by two horses, one before the other ; and the leader, being frightened by the firing of the troops a few rods before him, turned round and ran violently against the shaft of the wagon, which was thereby thrust into his side, and the horse died of the wound in a few hours.
    The jury returned a verdict for the defendant, subject to the opinion of the Court upon the foregoing facts.
    
      Jlshmun, for the plaintiff,
    observed, that he had relied, at the trial, on evidence, that the firing was by the command of the defendant ; but, faifing of that evidence, he still contended, that the defendant was guilty of a violation of his duty in mustering the regiment upon a public highway ; and, the injury complained of by the plaintiff being a direct consequence of this unlawful act, he was answerable to the plaintiff for his damages. The defendant might be considered as virtually present at the time, being in a house adjoining the parade, and in full view of the troops.
    
      By the act for regulating the militia  it is expressly provided, that no road in which people usually travel shall be included within the limits to be fixed by a commanding officer to his parade.
    Howe, for the defendant.
    Had the defendant given orders for the firing which caused the accident to the plaintiff’s horse, he might, perhaps, have been answerable in this action. But so far was this from being the case, that his command had ceased a long time before ; he had dismissed the regiment, and had wholly left it. If his command * continued at the time in ques-lion, it has not ceased yet, and he is still responsible for the conduct of the troops composing his regiment.
    The provision of the statute cannot admit the construction given it by the plaintiff’s counsel. The whole intention of it is to authorize commanding officers to prevent annoyance to the troops by idle spectators, and not to give them power to stay travellers. Had the defendant impeded or obstructed the plaintiff in passing the road, he could not have been justified.
    Commanding officers of regiments are obliged by law to muster them once in every year. They cannot muster them on lands of individuals, without committing a trespass. They must, then, do it in the public roads or commons.
    
      
      
        Stat. 1809, c. 107, § 19
    
   By the Court.

It would not have been to be lamented, had the facts in this case authorized an opinion in support of the action. The mischievous and disgraceful practice of firing guns in and near the highways on days of military musters, which is so prevalent in various parts of the State, should be restrained by those who have the militia under their charge. If they neglect this duty, they are legally responsible for all damage sustained by a citizen in consequence of such neglect. In the case before us, however, the facts are not sufficient to maintain the action against this defendant. He, with the other field officers, had retired from the parade. He had dismissed the regiment, and it was no longer under his command. Each company was under the orders of its distinct commanding officer. The captain of the company, to whose misconduct the plaintiff owed his injury, may have been liable. But no blame can be attached to the defendant, unless he mustered his regiment in an unlawful place. We think this point not made out. The road occupied was six rods wide, giving sufficient space for the troops, and for travellers to pass. The intention of the legislature, in the provision of the law cited for the plaintiff, seems to have been * to author-

ize a commanding officer, when on duty, to mark out the lines of his parade ground ; provided that he shall not include any public way, so as to prevent travellers from passing upon it. He shall not exclude them from the highway.

Upon the whole, although the plaintiff seems well entitled to satisfaction for the gross injury he has received, we do not think the facts proved at the trial entitle him to an action against the present defendant. Judgment must, therefore, be rendered on the verdict.  