Capron v. Austin , 7 Johns. 96 ( 1810 )

Per Curiam.

The action in the court below was to recover back a fine, which had been imposed on the plaintiff by a regimental court martial, of which the defendant was president, for a delinquency, in not appearing at a military parade. The plaintiff appears to have waived the trespass, and brought his action. for the money collected from him, and which came into the defendant’s hands.

Although the declaration charged the defendant with having fraudulently caused the money to be levied and collected, yet, this allegation is no way supported by the proof. And the only ground upon which the proceedings of the court martial were impeached, was, that the fine had been imposed without the plaintiff’s having been personally summoned to appear. The statute provides (1 Rev. Laws, 516. sess. 24. c. 166.) that no fine, in cases of this kind, shall be levied on any delinquent until he shall have been summoned to appear before a regimental court martial, that he may show cause why such fine should not be levied. If the plaintiff was not duly summoned to appear, the court martial had no jurisdiction of the case. From the evidence, it appeared, that the manner in which the plaintiff had been summoned was by leaving a copy of the summons at his dwelling-house, a few days before the meeting of the court martial, he being from home; and it was proved, that he did not return home until after the meeting of the court martial.

A copy of the summons left at the dwelling-house of the delinquent was not sufficient, within the statute, to authorize the court martial to impose the fine. Personal service was necessary. The summons required by the statute is in the nature of a process, and not like a notice, in some collateral proceedings, in the progress of a suit. In such a case, service, by leaving the notice at thc dwelling-house of the party, might be deemed sufficient, unless when the proceedings are to bring the party into contempt; according to the rule laid down by Lord Kenyon, in Jones v. March, (4 Term Rep. 465.)

The judgment must, therefore, be affirmed.

Judgment affirmed, ^(a)

(a) By the 76th section of the late act to organize the militia, (sess. 52, c, 165.) passed the 29th of March, 1809, it is provided, that ail the summonses,' from regimental courts martial, to appear and show cause why a fine should .not be levied, shall be sufficient, if left with some person of suitable age and discretion, at the usual place of abode of the party.