The opinion of the Court was afterwards drawn up by
Morton J.The appointment and qualification of the captain and clerk are admitted. The petitioner also appears to have been duly enrolled. The addition of second to his 'name would as clearly distinguish him from an older person of the same name, as junior. Neither of the terms constitutes any part of the name, but they are used to describe and designate the person; as his residence is sometimes used for the same purpose. Kincaid v. Howe, 10 Mass. R. 203 ; Commonwealth v. Perkins, 1 Pick. 388.
The orderly book was competent and sufficient evidence of the meeting of the company, and of the absence of the petitioner; according to the decision in the preceding case.
The company order directing the sergeant to warn Lewis Cobb, gave him authority to notify the petitioner. Although there was another person within the limits of the company, of the same name, yet he was not liable to do military duty; and this circumstance, if known to the sergeant, would enable him to determine which of the two was intended. Besides, as above remarked, junior or second is no part of the name, *10but only addition or description, used to designate the i ldi vidual referred to ; and where no addition is required by law, an error in it cannot invalidate. If therefore the petitioner was duly notified, he 'cannot object that the warning officer had no authority to warn him.
The return of the sergeant on the warrant, shows that he warned Lewis Cobb junior. It also appears from his testi many, (and he is a competent witness to this point,) that he made out and signed a written notice directed to Lewis Cobb junior, and gave it to the captain to be delivered to the petitioner. That this was left at the house of his father, is directly proved by the testimony of the captain, and is clearly to be inferred from other evidence in the case. It is also shown that the petitioner lived at his father’s house. A notification left at his last and usual place of abode, was a legal warning, whether the sergeant left it himself or sent it by an agent or servant. [But see Revised Stat. c. 12, § 89.] And although it was not a service very appropriate to the office of captain, yet in a legal view he might as well be the messenger, as any other person.
It was further proved by the warning officer, that he per sonally informed the petitioner that a notification was left at his father’s ; so that he had not only constructive, but actual notice of the training.
It unquestionably was the duty of the clerk to record this and all other company orders in the orderly book. But the authority of the orders of the commanding officer do not depend upon their being recorded, and this neglect of duty on the part of the clerk will not invalidate them.
The conduct of trie petitioner in working and lodging about in the neighbourhood and avoiding his father’s house and his own home, was a shallow subterfuge to evade the law, unworthy the character of a soldier, and which, were it effectual, would be a reproach to the administration of justice.
Petition dismissed.