afterward drew up the opinion of the Court. Several of the points raised in this case were considered and decided in the last; and it will not be necessary again to recur to them. The remaining questions relate to the enrolment of the petitioner, to the legality of the order for the meeting of the company, and to the validity of the warning.
1. The only objection to the enrolment consists in an error ■ in the petitioner’s name. It is written in the roll and in the order for warning, “ Daniel P. Coburn”; whereas his true name is alleged to be “Daniel P. Colburn.” It is very clear that this is an immaterial error. Even in a plea in abatement such an objection could not prevail. The orthography and pronunciation of proper names are arbitrary ; and errors in spelling, if the sound is not changed, are never fatal. The petitioner’s name is *59Sometimes written in the one way, and sometimes in the other , and the pronunciation of the two are so similar, that it is difficult in conversation to distinguish them. It is not even certain whether the petitioner or the respondent has adopted the most correct orthography; and it would be difficult to conceive a case in which the rule of idem sonans, would more strongly apply. This doctrine was carried a great length in the case of Tibbetts v. Kiah, 2 N. Hamp. R. 557, where it was held upon a plea in abatement, that Kiah and Currier, though spelt very differently, were pronounced so nearly alike as to be deemed the same name. Not only this, but many other cases cited, go very much further than we are required to do, to sustain these proceedings.
2. It is contended that, the commanding officer had no power to order his company to appear at twelve of the clock, on the first Tuesday in May. The Revised Stat. c. 12, § 76, peremptorily require the commanding officer of each company, to “ parade his company on the first Tuesday in May, annually, at one o’clock in the afternoon, for the purpose of inspecting, examining and taking an exact account of all the equipments of his men,” &c. This direction is imperative and leaves no discretion, as to the time or mode of executing it. The commanding officer clearly can order out his men for inspection, at no other time than the one fixed in the statute ; and he might as well appoint any other day as any other hour in the day. But this same section gives to the commanding officer other powers, than those of inspection. He is authorized to “ exercise and discipline, as well as inspect his company.” If there was no limitation upon this authority, he would have a right to exercise it at such times as he might judge proper. But the statute does impose a restriction, beyond which he cannot go. This restriction relates to time, and limits him to the first Tuesday in May ; and he may rightfully “ exercise and discipline ” his company, and, for that purpose, call it out, at any time “ on said day.” It may as properly be said, that he cannot perform this duty after one o’clock as before that hour.
The members of the company were ordered to appear “for military duty and inspection.” The “ military duty ” men*60tioned in the company order, could be no other than “ exercise and discipline”; and for this purpose the commanding officer had a right to call them out at any time during the day. The roll was not in fact called, till after one o’clock; and no inconvenience or hardship was imposed upon the members of the company. The order, being for military duty, is in the opinion of the Court valid, notwithstanding it was also for in spection, and was obligatory on all those who were duly notified under it.
3. The petitioner further objects to the authority of the warning officer, because, as he alleges, he was not ordered to perform that duty. On the production of the captain’s order, it appears to be directed to the non-commissioned officer who executed it, and is itself a valid order. But it appears from inspection, that the order was first directed to Joseph Fletcher, and that afterwards his name was erased, and that of Lawrence inserted. The petitioner contends that if this was not a forgery which would invalidate the order, yet that the direction to Lawrence was unauthorized, and could confer on him no power to execute it. The reason for the substitution of one of those persons for the other, is fully explained by the evidence introduced before the justice. It appears that the one name was struck out and the other introduced by the clerk in the absence of the captain.
The Revised Stat. c. 12, § 88, require the commanding officer of each company, when he shall order out his company, to issue his order for the purpose, “to some one or more of the non-commissioned officers or privates,” commanding them “ to notify the men enrolled in such company, to appear at the time and place appointed.” And the 89th section provides, that “ no notice shall be legal except the same be g.ven by the non-commissioned officer or private, ordered to. notify,” in-the manner therein prescribed. The power to select the person or persons to perform this service, (warning the members of the company,) is vested in the commanding officer. It is a discretionary power, which cannot be delegated. The order must emanate from the mind of this officer; but he may employ the clerk or any other person to reduce it to writing. He must select the person to execute the order ; but he may direct an*61other U insert the name. He may also make a conditional, as well as an absolute, appointment. He cannot authorize another to exercise this discretionary power for him ; but he can give directions, to be executed positively, or upon the happening of some future and contingent event. The power of his servant or agent will depend, not in any degree upon his discretion, but upon the happening of the contingency. If the order had been made to a particular person, and the bearer of the order had been directed, in the event of his death, to substitute another person by name, there could be no doubt, that, on the happening of the event, the bearer might lawfully insert the other name. But if the directions to the bearer were to insert the name of another person in case he should judge the one named unfit to perform the duty, it would be an unauthorized delegation of power. Such, however, was not the case here. The captain directed the clerk to deliver the order to Fletcher, if he should find him at home, but, if he did not, to erase his name and insert Lawrence’s name and deliver it to him. This is a direct and positive order, to be executed in a certain event. It gave him no discretion. The contingency did happen. The order became peremptory, and the clerk was bound to execute it; and when done, it was, in law, the act of the captain, as much as if done with his own hand. The appointment of Lawrence was therefore clearly valid.
Petition dismissed.