delivered the opinion of the Court.
The fourth error assigned in this case is, “ that although the original plaintiff was called upon by the defendant so to do, he did not introduce any evidence to shew the bounds or limits of the company, of which he was clerk and that the defendant resided within those bounds. Yet the Justice decided that it was not necessary for the plaintiff to produce such evidence.”
By the laws of the United States and this State, every able bodied white male citizen between the ages of eighteen and forty five years, with few exceptions, is liable to the performance of a certain military service for the public security. The law has pointed out the mode in which this service shall be performed, and clothed certain officers with power to superintend and require its performance. The power of these officers is particularly defined, and is to be exercised only within certain territorial limits. These limits are prescribed by the Governor with the advice of the council. Whoever claims to exercise this power over any of the citizens must shew that his claim is founded in legal right. He must shew that he is properly authorized, and that his authority extends to the case in question.
The original defendant is prosecuted for not attending a training of the company of infantry commanded by William Marean, of which the plaintiff is clerk, and the allegation in the writ is, that the defendant belonged to said company, and was liable to do military duty therein. By the defendant’s plea that he is not indebted, every material allegation in the plaintiff’s writ is put in issue. This being a local company, not raised at large by voluntary enlistment, must have some certain, fixed territorial limits, and is composed of such persons only as reside within those limits. The commanding officer of the company is presumed to know the extent of his com
Suppose the clerk, by mistaking the territorial limits, should place upon his roll, by direction of the captain, the names of persons residing without the bounds of his company. Do they thereby become members .of, and liable to do duty in the company ? Clearly not. And must he not show that they are members, and are so liable, before he can charge them with a penalty"for neglect?
It is not the placing the name on the company roll that creates the liability to perform military duty in any particular company, but
If the proof of enrollment is evidence of belonging to the company, and liability to perform military duty therein, why is not the proof of warning, evidence of the fact also ? The law requires that the enrollment shall be by the captain or commanding officer, of such as reside within the bounds of his company; and as to the warning it requires that the captain shall issue his orders to notify the men belonging to his company. If the act of enrolling by the captain is to be evidence of membership, why not the act of warning ? If by the proof of enrollment it is to be presumed that the person enrolled resides within the bounds of the company, because the captain is to enroll no others, why shall not the proof of warning be presumptive evidence that the person warned belonged to the company, because the captain is not authorised to cause any others to he warned ? And yet it was never contended that this would be sufficient. The plaintiff alleges that he is clerk, must he not prove it ? He alleges that the defendant was warned ; is he not required to prove it? He alleges the neglect to appear, and can he, without proof, rely upon his allegation merely and call upon the defendant to shew that he did appear ? Is not the defendant safe, under his plea that he is not indebted, until these affirmative allegations are all supported by proof ? No one ever doubted it. And can it be that the more important allegation, of belonging to the company and liability to perform duty in it, can be proved, either presumptively or conclusively, by the mere exhibition of the company roll; by proof manufactured by the captain and clerk, the very persons between whom the penalty, if any shall be recovered, is to be divided ? We think not. That is proof of enrollment merely; but as enrollment does not of itself constitute membership ; is not in itself the foundation of the liability, we think that he, who, as clerk, claims a penalty for neglect to perform military duty, must in the first, place, establish the liability, especially, when it is in his power so easily and satisfactorily to do it,; and that he should be
Without giving any opinion upon the other errors assigned, we are of opinion that the fourth is well assigned, and for that, the judgment is reversed.