Porter v. Sherburne

The opinion of the Court was drawn up by

Shepeest J.

— The first error assigned is, that an action cannot be maintained against a minor for neglect of duty in the militia. And the third error assigned is, that the enlistment into a company raised at large, was a contract which the minor was incompetent to make, and that he might avoid it at pleas*260ure. Both these points have been decided. Dewey, pet’r, 11 Pick. 265 ; Stevens v. Foss, 6 Shepl. 19.

The second error assigned is, that there was no proof that the plaintiff in error ever enlisted into the company. When testimony is legally admitted, it is the duty of the magistrate to judge whether the fact be proved or not, and there is no appeal by writ of error from his decision on the fact, unless spme question of law is involved in such decision. In this case, however, it appears from the record, that, although he did not sign the book of enlistment, he gave another person authority to do it for him; and that he met with and performed duty in the company two or three times; and this might be regarded as a full confirmation of the enlistment.

It is now objected in argument, that there was no proof of notice of the enlistment, given in' writing, to the commanding officer of the standing company, as the statute requires. The record does not show, that any such question was made before the magistrate, or was decided by him; nor does it show, that there might not have been other facts proved in the case, which w.ere not stated in the bill of exceptions. This objection cannot therefore be taken for the first time in this Court.

Judgment affirmed.