The opinion of the Court was read, as drawn up by

We think the magistrate erred in supposing that the respondent’s enlistment in the rifle company, and his appointment to the duty of corporal therein, while exempted from militia duty on account of being an engine-man, excused him from service in the infantry company in which he had previously enlisted. The exemption of an engine-man may *227be temporary or permanent, at the option of the person undertaking that duty. So long as he shall continue attached to an engine, and shall produce annually his certificate thereof to the captain of the company, he is to be exempt from militia duty, or if he does not so produce it, excused, the difference being only that upon the production of his certificate he need not be notified to appear at the several trainings during the year; but if he ceases to be an engine-man, or fails to produce his certificate, he not being struck off the roll is liable to be notified, like other privates, he still belonging in fact to that corps of the militia to which he was before attached, his temporary exemption not operating as a discharge. If he belonged to no volunteer company, he would of course fall into his place in the standing company of militia in which he was enrolled ; and if he belonged to such volunteer company, his liability to do duty in it, which had only been suspended, is revived.

We think also that the respondent’s second voluntary enlist ment into another volunteer company does not relieve him from his liabilities to the first. He had engaged himself for seven years ; had a dispensation for such time as he should continue an engine-man; but had not a right to transfer his services to another company to the prejudice of that in which he had first enlisted.

Nor will his appointment as corporal in the rifle company-make any difference ; for the captain of one company cannot take men from the ranks of another and make of them non-commissioned officers. It is not like the case of Commonwealth v. Thaxter, which has been cited, for the commandant of the regiment in that case advanced Thaxter from the ranks of the volunteer company which was a component part of his regiment, which he had a right to do.

Proceedings quashed