Southwell v. Harley ( 1832 )

Curia, per

O’Neall, J.

It has been contended that in order to exempt the troop horse from execution, it was not necessary that he should be “ duly entered and registered with the captain of the troop.” It was supposed that these words applied to the trooper, and not to his horse. But it is manifest that this construction cannot prevail. The terms “ entered and registered” are not used in any of the Acts of the Legislature as designating the act to be done by the member of a volunteer company, in order to give him the privileges of it. The term used in relation to the men or members of a company is “ enrolled.” If the mere fact of the horse being the one with which the trooper usually did duty, was enough to create the exemption from execution, the words “ duly entered and registered with the captain of the troop,” were wholly unnecessary. For the “ troop horse of each trooper” was a sufficient description; no person could be a trooper without being regularly enrolled in some troop of cavalry — and hence, as regarded him, the description by the word “ trooper” was enough. He could not claim an exemption for himself or horse, until he could shew he had been legally enrolled. But in order to make a horse the troop horse of a trooper, he must be duly entered and registered as such, with the captain of the troop. Until that is done, he may be the horse which the trooper usually rides on parade, but he is not a troop horse until made a part of the troop by being entered and registered. He is thus set apart by his owner, and accepted by the captain, for that service, and, in consequence of it, is exempted from execution. If this was not the construction, a trooper might protect every horse which he owned, by parading occasionally on each. Bach would thus be the troop horse of the trooper. Only one was, however, intended to be exempted ; and the entry and registration with the captain, was intended to be the record whereby the exemption should be claimed, and by which every one interested might ascertain the horse which was the troop horse of each trooper.

The motion to set aside the non-suit is dismissed.

Johnson and Harper, JJ. concurred.