If Albert G. Gaston was exempt from arrest, at the time the precept was placed in the sheriff's hands, then these proceedings must be reversed. The case of Ray and others v. Hogeboom (11 J.R., 433), decides that, where a soldier, privileged from arrest, was taken in execution by a constable, who suffered him to go at large, though the constable was not bound to take notice of the privilege of the party, yet it was a good defense, in an action for an escape, as the plaintiff, having no right to arrest, had suffered no injury.
The important question, in the case before us, is, whether Gaston was privileged from arrest. He was, at the time, a commissioned officer, a paymaster, in the 14th regiment, New York State militia. This regiment was then awaiting *Page 135 orders to proceed to Washington, or wherever else the said regiment might be ordered by the government of the United States, and was, not long after, ordered to Washington, D.C., and I think it is fair to assume, from the case, that at the time the sheriff had this process in his hands, and Gaston went to the sheriff's office, with the deputy sheriff, and was permitted, by the sheriff, to go at large, he must be regarded as called into the service of the United States. This regiment had, undoubtedly, at that time, been called for in the service of the United States. The case of Houston v. Moore (5 Wheat. R., 1), decides that the order issued, calling the regiment into such service, does not change their character, and that the service does not commence, until the arrival of the militia at the place of rendezvous. (See pages 17, 18, 19, and 20.) I infer that this regiment had actually met at their place of rendezvous, in Brooklyn, at the time, and were awaiting orders to go forward to the seat of war, and so it is claimed by both parties. The sheriff's return states that Gaston was exempt from arrest, he having been mustered into the actual military service of the United States, and the relator's counsel claim that he was in the military service of the United States, and for that reason cannot claim the exemption of our State statute, in regard to the militia. This statute declares that, "No person belonging to themilitary forces shall be arrested on any civil process, whilegoing to, remaining at, or returning from any place at which hemay be required to attend, for elections of officers, or othermilitary duty." (Laws of 1858, chap. 129, § 17, p. 241.)
There can be no doubt, but Gaston was attending at the place of rendezvous of his regiment, at which he was required to attend, to perform a military duty. This statute exempts all persons, in the military service, from arrest on any civil process while attending at any place, at which they are required to attend to perform military duty. It is unlimited in its language, only so he is attending to perform military service, or duty.
It does not say military duty to the State. The statute *Page 136 has reference, to be sure, to the State militia. The State militia, however, owe a duty both to the State, and to the national government.
The 14th subdivision of the 8th section of the 1st article of the Constitution of the United States says: "Congress shall have power to provide for calling forth the militia to execute the laws of the Union, suppress insurrection, and repel invasion." The 15th subdivision of the same section gives the power to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in theservice of the United States, reserving to the States, respectively, the appointment of the officers, and the authority of training the militia, according to the directions prescribed by congress. Congress, by the act of February 28th, 1795, gave full power to the president to call forth the militia of the States, for the purposes above stated, to serve for three months (1 United States Statutes at Large, 424), and, by the act of July 17th, 1862, the time was extended to nine months. In this act, the call must specify the time of service, but not exceeding nine months. (United States Statutes at Large, 1861, 1862, page 597.) The president is made the sole judge whether the exigency has arisen (Martin v. Mott, 12 Wheat. R., 30, 31); and this call may be made by the president upon the State executive, or by orders, to any subordinate officers of militia. (5 Wheat. R., 17, 18, 53, 54, 55, 56, 61, 62; 3 Story's Com. on Const., § 1207.) These acts speak of calling forth the militia of the States, to be employed in the service of the United States, and they do not cease to be militia of the State, because they are employed in the service of the United States. The State still retains the power, while in the service of the United States, to appoint the officers and fill all vacancies.
They are still the militia of the State. It is true, that while employed in the service of the United States, they are subject to the rules and discipline prescribed for the government of the regular army of the United States. (Act of 1820, chapter 97; act of 1821, chapter 68.) The 21st section of the *Page 137 act of congress of January 11th, 1812 (2 U.S. Statutes at large, 674), has no application to the State militia. It is limited in terms to enlisted men into the regular army. The act of April 7th, 1858, exempting the militia from arrest on civil process, is a law of the State, applied to the militia of the State, and exempts them from arrest when rendezvoused for any military duty. As they owe a military duty to the general government, when called on, as well as to the State, I am not able to perceive why this statute does not exempt them from arrest, as much in the one case as in the other. The reason of the statute is applicable alike to both. They are a citizen soldiery of both governments, and owe as much duty, when the emergency arises, to serve the one government as the other.
They are performing military duty, as militia of the State, in either case. In the one case, they are, to be sure, rendering service to the general government, and in the other, to the State. The fact that when employed in the service of the government of the United States, they are necessarily placed under the army regulations of the United States, does not alter the case; they are still a distinct military force, belonging to the State. If I am right in the views above expressed, then Gaston was exempt from arrest on civil process, and the sheriff is excused, if this process is to be regarded as civil process; and it has never been questioned but such a process as this, to enforce a civil remedy by the collection of a specified sum of money, as alimony and costs, was a civil process. It is not necessary to examine the other objection raised to the proceedings, by the appellant. I will say, however, that as these proceedings against the sheriff were had on a previous order to show cause, granted upon affidavits, which were served with the order, no interrogatories were required to be filed, and the proceedings were strictly regular. The case of Brush v. Lee (MS.), decided at the June term, 1867; also Pitt v. Davison (37 N.Y.R., 243), is directly in point. The order of the General Term of the Supreme Court, and the City Court of Brooklyn, and all the proceedings, must be *Page 138 reversed with costs, for the reason that Gaston was privileged from arrest.