| Me. | Nov 15, 1822
Two errors are assigned, viz.
1. That the justice who tried the cause decided that the con-. tinement of the captain of the company, within the liberties of the prison in Portland, at the time of issuing his orders to the original plaintiff to notify a meeting of the company at the time and place mentioned, operated to deprive him of the authority to issue the order; and that it was therefore void.
2. That the said Tole, under the circumstances of the case, was not. bound to attend at the time and place appointed; nor to offer his excuse to his commanding officer within eight days next after the day of muster.
As to the^rsi point. The lGlh sect, of the Militia Law of this. Slate, ch, 164, provides “ That whenever the office of Major “ General, Brigadier General, Colonel, Major, Commandant or “ of Captain shall be vacant, the officer next in grade and in. “ commission in the division, brigade, regiment, battalion or K company, shall exercise the command and perform the duties.
It is urged by the defendant’s counsel, that as the captain, at the tíme of issuing the order, was legally deprived of his liberty; and of the command even over himself and his own actions, it would be an unreasonable construction of the statute, to consider bis military authority over the company as continuing, under such circumstances. To this argument it may be replied that the imprisonment of the captain, in the present case, could not deprive him of the means of issuing the order to the plaintiff; and he, being at liberty, could and did notify the company pursuant thereto. Besides, it appears on the record, that the captain was liberated from the limits of the prison on thé second of May; nearly a week before the day appointed for the muster; at which timé he might have attended and taken the command óf the company, had he not been prevented by the reasons assigned by the justice as the ground of his opinion on the second point. It may be furthér replied, that though the captain was within the limits of the prison, and at large, in consequence oí having given bond pursuant to law, not to depart beyond those limits; still that was an arrangement merely between him and his creditor. It was a contract which he might violate at hb, pleasure, if he inclined to incur the consequences of añ escape. He was under no physical restraint; and we are not prepared to' say that a captain must be considered as vacating his office, merely by laying himself under bond to absent himself from the territorial limits of his command on the day he issues orders for mustering his company, or from the place of parade on that day. Nor can we believe tbat his power to issue such an order is suspended by his being in close confinement on execution for debt, any more than if the captain, at the time of issuing the Order, had been confined to his chamber by sickness; a species of restraint, over which he has no control, and which, surely, could not be considered as vacating his office.
It is not perceived bow any inconveniences can possibly result from the established principle above stated; because, if
It is not necessary on this occasion to decide whether the conviction of a commanding officer of an infamous crime, and imprisonment under sentence for such' crime, would operate to vacate such commander’s office; — nor how far the decision of a court martial in such case would be necessary completely to vacate the office; — nor how far the question, whether a military officer has vacated his office, be a question merely of military jurisdiction. It is sufficient for us to say, that in the present case, we perceive no facts which can authorise us to pronounce the order of the captain as illegal, for want of authority in him to issue it. . _
.We are accordingly of opinion that the first error is well assigned. . •
As to -the second point, we are not required to give any opinion ; but as it has been intimated that several causes are depending upon its decision, we have bestowed our attention upon it, and will state the result. •
It is not denied that the defendant was under a paramount obligation to attend upon this Court on the day of muster, in obedience to its process ; but the objection is, that he did not, within the eight days next following, offer his excuse to the commanding officer, according to the statute, art. 32 * nor shew that he was prevented therefrom by severe sickness, according to said article. — This objection is founded on the facts of the case: In the case of Tribou v. Reynolds, 1 Greenl. 408, it was decided that by th'e “ severe sickness” mentioned in said article, was intended such sickness as prevented the party from giving to his commanding officer, within the eight days, satisfactory evidence of his inability to appear. — The statute has reference to all kinds of excuses. But as the provision contains a very strict limitation, in giving a construction to it, we apprehend it ought never to be applied against a person who, though he might háve been notified in a manner by law prescribed, had in faci;receiv>
In the case before us, however, it appears .that the defendant was duly notified arid warned; and it is not intimated that such •notice was not actual and full. We therefore think the justice erred in this particular, and that the second error also is well assigned. ' .
The consequence is, that the judgment of the justice must be reversed, and a trial be had at the bar of this Court.
Judgment repersed.