
    William Pratt, Plaintiff in Error, versus Aaron Hall, Jun.
    A writ of error does not lie upon a process before a justice of the peace under the militia law.
    If a writ of error has issued in a case where a certiorari ought to have been moved for, the Court sometimes look into the proceedings, and if an error is found, on which a certiorari would have been granted, they will quash the proceedings ; otherwise they will quash the writ of error, as having issued improvidently.
    A master of a licensed vessel under twenty tons, employed as a lighter in a harbor, and not going to sea, is not exempted from duty in the militia as a mariner in the sea service of a citizen of the United States.
    
    The fine for non-appearance at a company muster of the militia is two dollars; at a battalion or regimental muster, it is four dollars.
    The plaintiff in error brought his writ to reverse a judgment rendered by W. Wetmore, Esq., a justice of the peace for this county, founded on a complaint of Hall, as clerk of a company of militia. The complaint alleged that Pratt was a soldier in [ * 240 ] the company, and liable to do military duty therein ; * that being so liable, he was duly warned to attend a muster of the company on the 7th of October, 1806, and neglected so to attend, whereupon the complainant alleged that the said Pratt had forfeited four dollars, one half to the complainant, and the other to the captain, for the use of the company.
    The facts in evidence are recited by the justice, and from them it appeared that Pratt was liable to do duty in the company, unless he was exempted as being a mariner actually employed in the sea service of a citizen or merchant of the United States. In support of his claim to this exemption, he proved that he was master of a certain sloop called the John, of the burden of eighteen tons, owned by .himself and one Benjamin Green, and had been master thereof from the seventh day of July preceding; that on the day last mentioned he had paid hospital money as a mariner to the collector of the customs in Boston; that the said sloop was duly licensed to carry on the coasting trade, and was actually and generally employed in transporting bricks, stones, gravel, and wood, from and to the islands and other places in the harbor of Boston never going outside of the lighthouse.
    
      The' plaintiff demurred to the evidence before the justice, who overruled the demurrer, and adjudged that Pratt was not a mariner within the meaning of the statute, under which he claimed the exemption, and sentenced him to pay a fine of four dollars and costs.
    
      B. Whitman, for the plaintiff in error,
    insisted, 1. That the evidence proved the plaintiff to be a mariner within the meaning of the statute; and, 2. That the fine to which he was liable, in case he was not by law exempted from military duty, was two dollars in this case, it being a company muster only, which he had neglected to attend. For both these causes, Whitman contended that the judgment should be reversed.
    
      
      
         [Vide, post, Winslow vs. Anderson, 376. — Edgar vs. Dodge, 670. — Ball vs Brigham, 5 Mass. Rep. 406. — Ed.]
    
   The opinion of the Court was delivered by

Parsons, C. J.

The writ in this case was sued out to remove the record of a complaint and proceedings before Justice Wetmoi'e at the suit of the defendant in error, to recover of the plaintiff in error a fine for neglecting to appear *at a [*241 ] muster of a company of the militia, to which it is said the plaintiff belonged.

It is very clear that in this case a writ of error does not lie; and the plaintiff in error, if aggrieved, ought to have sought relief by writ of certiorari. From an irregularity in the practice heretofore existing, the Court sometimes, after the record has been sent up, have looked into it; and if any error was found, on which a certiorari would have been granted, they have quashed the proceedings; otherwise the writ of error has been quashed, as having issued improvidently.

Two exceptions to the proceedings have been taken by the plaintiff in error; one, that it appears from the evidence recited by the justice, that the plaintiff in error was, at the time when he was notified to appear, and when the company was mustered, a mariner actually employed in the sea service of a citizen within the United States. If this exception is supported by the evidence, it ought to prevail, agreeably to the act of congress, entitled, “ an act more effectually to provide for the national defence, by establishing a uniform militia throughout the United States,” passed May 8th, 1792.

But by examining the evidence, it appears that the plaintiff in error, at those times, was a lighterman, plying within the harbor of Boston, transporting ballast and stones from one part to another part of the harbor, in a vessel under twenty tons’ burden. From these facts, we are satisfied that the plaintiff in error was not a mariner actually employed in the sea service of a citizen of the United States, and that the conclusion drawn by the justice was legally correct.

C. Davis for the defendant in error,

A second exception is, that the justice imposed on the plaintiff in error a fine of four dollars, when by law he had subjected himself only to a fine of two dollars. When a soldier, on due notice, shall neglect to appear armed and equipped at a battalion or regimental muster, he will forfeit four dollars; but he wil. forfeit only two dollars for neglecting to appear armed and equipped at a company muster.

In the proceedings before us, it does not appear that the plaintiff in error had been notified, or had neglected to appear at a [ * 242 ] battalion or regimental muster. The justice has, * therefore, mistaken the fine, and has exacted of the plaintiff in error a higher forfeiture than he had incurred.

As we should for this cause have granted a certiorari, let the proceedings be quashed.  