The writ in this case was served on the defendant on 26 April. The defendant pleaded in abatement that, at the time of the service of the writ, he was attending his duty at a muster, as an officer of the militia, in the town of Salisbury, when the writ was executed. To this plea the plaintiff demurred. On the argument it was insisted by the plaintiff that the matter set forth in the plea could not be taken advantage of by a plea in abatement, but was proper only to set aside the return, for the reason that such a plea went to the writ, and the complaint here was of the service.
In this we think there was error. The act of Assembly under which the defense is offered expressly provides for this case. Rev. St., ch. 31. By section 32 it is provided how writs and other process, except subpoenas, shall be executed and returned. The concluding paragraph of that section is as follows: "All process made returnable at any other term, or executed at any other time or in any other manner, than is by this act directed, shall be adjudged void on the plea of the defendant." Section 58 of the same act directs, "it shall not be lawful for any sheriff or other officer to execute any writ or other process on a Sunday, or upon any person attending his duty at a muster of the (275) militia," etc. The law of the land, with regard to the militia, compels, under heavy penalties, all persons who are liable to perform militia duty and have been properly enrolled to attend musters; and the act we are considering protects them from arrest while they are in the performance of this duty. The officers of the law are forbidden to execute writs in civil cases upon a militiaman while so engaged. The time, then, when this writ was executed was in violation of the law; and section 53 directs that the defendant shall avail himself of it by a plea. That the defendant was within the protection of the *Page 203 law is admitted by the demurrer. Whether, under the act of 1836, he could have availed himself of the objection by a motion to dismiss, it is not necessary to decide.
The decision below is erroneous and must be reversed.
PER CURIAM. Demurrer overruled and judgment for the defendant.
(276)