Wilbur v. Grace , 12 Johns. 68 ( 1814 )

P. W. Radcliff, Senator.

The real question in this cause is not whether an infant under the age of eighteen years,, enrolled in the militia, and neglecting to avail himself of his right to appeal to the commandant of his regiment, is or is not, until such appeal, liable to military service. It does not appear by •the case, hor was it alleged oil the argument, that the defendant ever resided within the bounds of Captain Lyon’s, company, or was even enrolled, or liable to be enrolled, therein. On the contrary, it does distinctly appear that another person belonging to that company, when it was about to march on a tour of duty to the frontiers; applied to this defendant,, and, foria reward stipulated between them, induced, him to agree, with" the consent of the captain, expressly obtained for that purpose, to take his place in the ranks, as a substitute for the former.. This was the first moment at which he appears to have had any connexion whatever with the company. The question, therefore, is, whe* ther an infant under the age of twenty-one years (no matter whether under eighteen or not) is bound by his contract to serve as a substitute in a company of militia, ordered out upon public duty.

The general doctrine, with respect to the liability of infants upon contracts, is perfectly well settled, and universally understood. It is, that no such contract is binding, unless made for necessaries, or authorized by statute. If, indeed, the infant choose to carry it into effect, he shall he permitted to do so, for his own advantage, and while he continues in the execution of it, it shall be deemed a valid performance. But the moment he chooses to recede from it, and acts upon a determination to do so, its obligation ceases, and he is wholly absolved, These principles are applicable here, and are perfectly decisive of the question before the court.

The defendant having voluntarily marched with the company to the place designated in the orders, the officers under whose command he acted, would, undoubtedly, be held justified for any restraint imposed, or discipline inflicted upon him while he continued in service. But the moment he chose to avail himself of his right to withdraw from that service, their right to control him ceased, and there was an end of the contract. It follows, that the plaintiff, acting under the advertisement of the colonel, could have no right to take him as a deserter, and, consequently, that the decision in the court below was, in all respects,♦correct.

It has been argued ihat the contract was made with the consent and approbation of the father, who even received a part of the consideration for it, and that it is, therefore, to be held obligatory. Put this was not an enlistment unler the laws of congress, allowing in certain cases the enlistment of minors with the consent of their parents, masters, or guardians. It cannot, therefore, be supported on that ground. Nor can the father’s consent, in any view of the case, give it validity, or in any way affect the question. It was still the contract of an infant, and void, because relating to a subject on which he was incapable of binding himself. And even if it could be regarded as a' contract of the father, it would be equally void, as against the son, and,, therefore, equally unavailing here; a parent having clearly no right to bind his són to military service.

The judgment of the court below ought, in my opinion, to bé affirmed. ....

Cochran, Jónés;,,WendEee', and SíeWarv, -'Senators, 'were ' of the same opinion. • :. \. , ■■ ''

Sanford, Senator.

A person not liable, to military duty, voluntarily enters the 'service, as a soldier, and being actually in, military service, deserts. . Candle be apprehended as a deserter ? This is .the sole question in the' cáuse. ' Ttio q;uéstión.isi not-' whether 'the contract is valid,' or void ;• nor is it whether the soldier, is entitled' to be discharged from the service dr not. The contract' may be void; and he may be entitled to his discharge ; but it does not follow that hé is to, be his pwn judge, and to discharge himself,by desertion,, ■ Any person detained by military authority, or military fbrce, may, obtain his discharge, if he" is entitled to it, by application to the proper civil authorities. ■ But a soldier, in actual; service, cannot be allowed to desert, at pleasure. . The right to detain him; and to arrest him, if he deserts, results-directly and necessarily from the ‘laws of the United States and of this state, concerning the militia, and military service; The apprehension of this deserter;was, - therefore, lawful; and the action-cannot be maintained.

Tjje judgment of the supreme court ought to be reversed.

A majority of the court^* being of the. same opinion; it was, .thereupon,, ordered and adiUdoed, ¡Ehat. the;judgment of the supreme court be reversed,v&ti> -: -• ;•

Judgment óf-rdvérsaL ,

* April 1814. For reversing, 17. For affirming, 5.