
    Hall vs. Jackaway.
    A warrant for the collection of military fines imposed by a regimental or battalion court martial, can only be executed by a constable; the power of a marshal in this respect having been taken away by the act of May 11th, 1835.
    On error from the Wayne common pleas. Jackaway brought an action against Hall before a justice of the peace, and declared in trover for talcing and converting a coat. The defendant .pleaded the general issue, and the case proved on the trial was as follows: At a court martial, of which one Greene was president, a fine was imposed upon the plaintiff for not doing military duty. The defendant was duly appointed marshal by the president, and afterwards a warrant "for the collection of the fines imposed, directed to any constable of the county, was delivered to the defendant to be executed, by virtue of which he seized and sold the coat in question. The plaintiff insisted that the defendant, not being a constable, had no right to serve the warrant, and the justice rendered judgment against the latter for $14,00, besides costs. The common pleas on certiorari affirmed the judgment, and the defendant thereupon brought error.
    
      T. R. Strong, for the plaintiff in error.
    
      Aldrich Sp Cuyler, for the defendant in error.
   By the Court,

Nelson, Ch. J.

The revised statutes expressly provided that the warrant might be directed to and served by any marshal or constable. (1 R. S. 315, § 13 et seq.) But the amendment of the militia act in 1835 repealed in express terms the authority thus conferred upon the marshal, thereby confining the duty to a constable. (Sess. L. of 1835, p. 352, § 28.) The same section also provided that the sureties thereafter given by any constable should be liable to the president of the court for all such moneys as the constable might." become liable to pay on account of the warrant.

The whole amendment shows clearly enough that the legislature intended to take from the marshal the power to execute the warrant, and confine the duty to a constable, who doubtless was regarded as the more responsible officer. The statute passed in 1842, (Sess. L. of 1842, p. 292,) confirming the acts of Benjamin Sherman, who had assumed upon himself to execute these warrants as marshal, is declaratory of this view of the amendments of 1835.

The only doubt existing in the present case arises out of the provision in 1 R. S. 311, § 34, which is as follows : “The marshals so appointed may not only perform the usual duties of. such marshals, but may also execute all process lawfully issued by such president, and .perform all acts and duties in this chapter, imposed on and authorized to be performed by any sheriff, marshal or constable.”. This was not expressly modified by the act of 1835, and the plaintiff in error therefore contends that it still remains'in full force. But a second construction of the two acts taken together, requires us, I think, to regard the provision relied on as virtually modified hy the subsequent amendment. I am satisfied they cannot be reconciled by any natural or consistent interpretation, and I concur in the view taken of the question by the court below!

Judgment affirmed.  