
    * Commonwealth versus Amos Fanning, in Certiorari.
    When the brigadier-general has endorsed a surgeon’s certificate of the inability of a private in the militia to do military duty, the court will presume that a previous application has been made to the commanders of the company and regiment
    The writ was issued in this case at the instance of Fanning, the respondent, to bring before the Court certain proceedings had before a justice of the peace for the county of Hampshire, upon the complaint of Timothy A. Phelps, clerk of a company of cavalry, charging the said Fanning with neglect of duty in not attending a muster of the company for the purpose of regimental inspection and review 
      The respondent relied, for his defence before the justice, on a cer tificate of the surgeon of the regiment, that he “ was unable to perform military duty, by reason of a lameness in his right knee,” &c. On the back of the certificate was a discharge from military duty for the term of twelve months, signed by the brigadier-general. The justice, notwithstanding the said certificate and endorsement, imposed a fine of four dollars on the respondent, on the ground that it was necessary for him to avail himself of the discharge produced, to show that he had applied to the captain of his company and the commander of the regiment or battalion before applying to the brigadier-general.
    
      Bates,
    
    in support of the conviction, relied on the point taken before the justice, citing the 29th section of the statute of 1809, c. 108, and also the case of the Commonwealth vs. Smith, 
       where the same point was taken and sustained by the court. If the respondent had made the proper applications to the commanders of the company and the regiment respectively, it was for him to show it, in order to render the discharge available. Without such evidence it was a mere nullity.
    
      Howe for the respondent.
    
      
       11 Mass. Rep. 456.
    
   By the Court.

It is necessary to the validity of the discharge

relied on in this case, that the previous steps pointed out by the statute be pursued. It is, however, to be presumed, until the contrary is proved, that the brigadier-general would not grant the discharge until he had satisfactory evidence that the other officers had * been applied to, and had unreasonably refused the party a discharge.

In the case of the Commonwealth vs. Smith, it was ascertained that those previous steps had not been taken. It was not so here ; so the presumption remains without impeachment.

Proceedings quashed.  