In an action of trespass and false imprisonment, the defendant justified under two warrants, issued by him, as commandant of the 7th company in the 22nd regiment of infantry, against the plaintiff for fines imposed for neglect of duty as a private in that company, on the first Mondays of May and September, 1723, which the plaintiff claimed to be void, 1st, because he had previously enlisted into the 12th company in the 1st regiment of light artillery, equipped and dressed himself according to law, and produced a certificate thereof from the commanding officer of the company to the defendant: 2ndly, That on appeal to the judge-advocate, the fines were abated.
By the 26th section of the statute, tit. Militia, p. 342. it is provided, that when the person fined claims in writing to belong *222to a different corps from that to which the officer fining belongs, he may, within twenty days after notice, appeal to the captain-general, or such person as he shall appoint, who may abate such fine.
1. When the captain-general appoints a person to hear and determine appeals, he ought to designate such person by name, and not assign this duty to an officer; as the person appointed is to act as the special deputy of the captain-general, and not ex officio. The trust is personal; and may be of much greater responsibility than the duties of such office.
2. The general order making this appointment, is void : It is a mere carte blanch, and signed by nobody. It was issued long before the fines were imposed, and before James S. Huggins was made judge-advocate. It appoints another person, if any body, to hear and determine all appeals of this sort; and has no reference to his successor.
3. The appeal itself is void. By the 14th section of the same statute, it is provided, that no person belonging to a battalion company, shall, under colour of enlistment into any company of artillery, &c. be excused from doing duty in the battalion company, until he shall have completely equipped himself for service in the corps into which he enlists, with arms, accoutrements and uniform, according to law, and shall have produced a certificate thereof from the commanding officer of such artillery company, &c. to the commanding officer of such battalion company. But the appellant does not state, that he had equipped himself for service in said corps, with arms, accoutrements and uniform, and that he had produced a certificate thereof from the commanding officer of said artillery company to the commanding officer of said battallion company, previous to the imposition of said fines.
4. The judge-advocate finds no facts to warrant the interposition of the captain-general; nor does he profess to act on the apeal by appointment, but ex officio. As the appellant, to entitle himself to relief, was bound to allege and prove such facts as excused him from duty in the battalion company, to be adjudicated upon, by proper authority, which has not been done; I am of opinion, that the appeal and decision thereon, are both void; and that the court below erred, in admitting the testimony offered by the plaintiff, and rejecting the testimony offered by the defendant. I, therefore, advise a new trial.
*223The other Judges were of the same opinion, except Dag-sett, J., who gave no opinion, having been of counsel in the cause.New trial to be granted.