
    Commonwealth versus Jacob Allen, Jun.
    Of the power of the governor and council to make new divisions of companies of militia; and of the effect of orders making such divisions.
    Certiorari to remove the proceedings had before a justice of the peace for this county, wherein John Hobart, Jun., clerk of a company of militia in the town of Braintree, commanded by Lewis French, complained against the said Allen, for neglecting to appear at a muster of the company on the 16th of June, 1819 ; upon which the said justice had found Allen guilty, and had adjudged him to pay a fine of two dollars.
    [ * 524 ] *It appeared that Allen had, previous to the 8th of June, 1819, belonged to the militia company in Brain-tree, commanded by Captain French, of which Hobart was the clerk. On that day a new territorial division, between the two companies in that town, was made by order of the governor, with the advice of the council. The said order did not reach the captains of the two companies until the 15th of June. By this new arrangement of the companies, if the same was legal and valid, Allen became a member of the other company in the town, which was commanded by Captain Faxon. Allen was regularly warned, on the 12th, to appear at the said muster on the 16th of June.
    It was contended that Allen’s duty had relation to the time when he was warned, and that the new division had not then taken effect, because ihe order therefor was not promulgated, not having reached the captains of the companies until three days after the warning.
    
      But the Court held that as Allen did not, in fact, belong to Captain French's company on the day of the muster, he was not bound to do military duty therein, notwithstanding notice of the division had not been transmitted, at the time when he was warned.
   The Court,

also, considered that the power of the governor and council to make a new division of this kind, was settled in the case .of Commonwealth vs. Thaxter, 11 Mass. Rep. 386.

Proceedings quashed.  