The two last points are conclusive. There is no malice express or implied on the part of the plaintiff in error, and no- action can be maintained against him. The judgment below ought to be reversed.
Thompson, J.Every male inhabitant above 18 years of age, •and under 45, is, prima facie, liable to be enrolled in the militia; and how are the commandants of companies to know that a person is a quaker, or exempted from military duty, unless he claims his privilege ? It is the duty of the officer to return all defaulters, though they are quakers, to the court-martial as delinquents, unless they claim their privilege, and offer proper proof that they are entitled to the exemption given by the statute.
Per Curiam.Judgment reversed.