¶1The opinion of the court was by
¶2It appears from the record that the plaintiff in error proved before the magistrate “ that he was laboring under a bodily infirmity and permanent disability at the time of the supposed neglect and for some years before.”
¶3•It has been decided, that those “ who are permanently disabled either by natural defects or by casualty are excluded from the militia. Hume v. Vance, 7 Greenl. 158. It is said that the acf of the 20th df March, 1839, c. 399, deprived him of the right to make such proof.
¶4It is not now necessary to decide whether it be, competent for a State legislature to require one, who is not by the laws of the United- States liable to enrolment, to obtain a surgeon’s certificate as the only proof of that fact, for the act of 1839 did not take effect in season to affect this suit.
¶5Judgment reversed..