The order for the arrest of Gaston was authorized by the statute. (2 R.S., 535, § 4.)
In the proceeding against the sheriff, the order to show cause was proper, and authorized by statute. (2 R.S, 535, § 5; AlbanyCity Bank v. Schermerhorn, 9 Paige, 372; M'Credie v.Senior, 4 Paige, 378; In the matter of Henry D. Smethurst, 4 How. Pr. R., 369.)
When the party charged with misconduct, on the return of the order to show cause, appears, and does not deny the alleged misconduct, or show any cause why he should not be punished therefor, the court may at once proceed to punish. (Id.)
In that case, no interrogatories need be filed. It is only when an attachment has been issued, that interrogatories need be filed.
In this case the sheriff did not deny having the order for the arrest of Gaston. He did not deny his refusal to arrest him, but gave his reason why. It is claimed, on the part of the relator, that he had no good reason, and, therefore, she asks the court to punish him for contempt, adding to the papers the affidavit of the deputy sheriff, and that of the relator's attorney, and, on these, the court convicts the sheriff of contempt.
If Gaston, under the circumstances, was liable to arrest, the conviction was right. It appears from the affidavit used before the court, when the conviction was had, that Gaston, at the time the sheriff received the order, was a commissioned officer in the 14th regiment of the New York militia, then at Brooklyn, awaiting orders from the general government to proceed to Washington, in the military service of the United States, as a militia regiment. That the regiment had since gone, and was, at the time of making the affidavit (May 21st, 1861), in the United States military service, and Gaston with it. The return of the sheriff, dated April 30th, 1861, states that *Page 139 Gaston was exempt from arrest, he having been actually mustered into the service of the United States.
Reading them together, they prove that Gaston was a member of a militia regiment, mustered into the United States service, then at Brooklyn, awaiting orders to move.
Mustering a militia regiment into the United States service, does not change its character. It only assumes new responsibilities and duties. At the end of the time it was ordered out, it returns and occupies precisely the position it did when it started. Gaston must be regarded as belonging to the military force of the State, and entitled to the protection given by its laws, at the time the sheriff was directed to arrest him.
Section seventeen, of chapter 129, of the Laws of 1858, provides that "no person belonging to the military forces shall be arrested on any civil process while going to, remaining at, or returning from any place at which he may be required to attend for elections of officers or other military duty."
The order, by which the sheriff was directed to arrest Gaston, was a civil process. (People v. G.W. Cowles, 34 Howard Pr. R., 481; People v. Bennet, 4 Paige, 282; Van Wezel v. VanWezel, 3 Paige, 38.)
Gaston was with his regiment, waiting orders to move; he was, for that purpose, required to remain there, and was on that day on military duty, and was by that statute exempt from arrest on this process.
The judgment of the General Term, and the order of the City Court of Brooklyn, should be reversed with costs.
HUNT, Ch. J., WOODRUFF and DANIELS, JJ., concurred for reversal.
GROVER, J., for affirmance. He thought that, by the true construction of the State statute of exemption, it was limited to persons engaged in military service under the State, and was not applicable to the militia, when employed in the service of the United States.
LOTT and JAMES, JJ., were also for affirmance.
Order reversed with costs. *Page 140