White v. Lowther

By the Court.

Warner, J.,

delivering the opinion.

The only question presented by the record in this case is, whether Joseph A. White, one of the plaintiffs in error, was liable to be arrested by the sheriff, by virtue of a capias ad satisfaciendum, issued against him for the sum of one hundred dollars, in favour of the defendants in error.

It is conceded, that by the laws of the United States he is liable to the arrest, but it is contended that he is not liable to be arrested under the provisions of the 20th section of the Act of 1818, which declares, “ All arms, ammunition and equipments, the trooper’s horses, and furniture of the militia, shall be exempted from execution and distress at all times; and their persons from arrest and process in civil cases, while going to, continuing at, or returning from muster, afid while in actual service.” Prince 591. It is contended that White, the plaintiff in error, is now in the actual service of the State of Georgia, and not in the service of the United States.

The record shows that he was, at the time of the arrest, in actual service, as First Lieutenant of one of the military companies of the United States, authorized by the Act of Congress, and which company was required by the Secretary of War from the State of Georgia; and that he was in the service of the United States, and is under marching orders. Taking into view the Act of Congress of 11th February, 1847, under which the plaintiff in error was appointed by the President First Lieutenant of the company, as well as the provision made for raising the company, and the object for which it was raised, we are clearly of the opinion that the plaintiff in error was in the service of the United States at the time of his arrest, and not in the actual service of the State of Georgia. Indeed, if there was any doubt on the subject, the return „ of the sheriff, we think, admits it. By the Act of Congress, the troops were raised during the war with Mexico, and at the close of the war, the 5th section provides, that they shall be immediately discharged from the service of the United States. By the 29th section of the Act of 1818, the Governor of this State is authorized, in case of an invasion or insurrection, or probable prospect thereof, to call out the militia; or if there should be a sudden insurrection or invasion in any county of this State, the commanding, officer of such county may call forth the militia, to repel or suppress it. Prince 594; Such, in our judgment, is the actual service which the legislature had in contemplation when they exempted the persons of the militia from arrest, by the 20th section of the Act of 1818. That act provides for the mustering the militia, and calling them out to repel invasion and suppress insurrection, and the 20th section exempts their persons from arrest while going to, continuing at, or returning from muster, and while in actual service ; that is to say, in the actual service of the State, under the orders and authority of the officers of the State, as provided by the Act of 1818.

From the facts disclosed in this case by the record, we do not think that Lieutenant White was in the actual service of this State, as contemplated by the Act of'1818, which exempts the persons of her militia from arrest in civil cases ; but was in the service of the United Statés, under the authority of the Act of Congress to raise an additional military force during the war with Mexico and the United States.

Let the judgment of the Court below be affirmed.