
    John Slater, Petitioner, &c. versus John W. Bates, Complainant.
    An assistant postmaster is not exempt from militia duty.
    This was a petition for a writ of certiorari to a justice of the peace, by whom the petitioner had been fined in November 1828, upon a complaint for neglect of militia duty subsequently to the 1st of April in the same year. It was admitted before the justice, that on the same first of April the petitioner took the oath prescribed by the act of Congress, 1825, c. 65, § 2, (by which proceeding he was constituted an assistant postmaster at South Oxford,) and that from that time until the day when he was summoned to appear before the justice, he occasionally, and in the absence of the postmaster, performed the duties of postmaster in South Oxford.
    The alleged error was, that the justice did not consider the petitioner’s being appointed and acting as assistant postmaster, a sufficient defence to the complaint.
    The act of Congress, 1792, c. 33, § 2, exempts from militia duty, “ all post-officers, and stage^drivers who are employed in the care and conveyance of the mail.” The act of Congress, 1825, c. 65, § 35, provides, “ that the postmasters, post-riders and drivers of the mail-stages shall be exempt from militia duty.”
    
      
      Barton
    
    contended that the petitioner was exempted by the first statute, and the subsequent statute was merely cumulative.
    Prentiss, for the respondent,
    urged that an assistant “ postmaster is not exempted by the act of Congress of 1792; and further, that the provision in that statute is virtually repealed,' or at least has received a legislative construction from the act of 1825.
    
      Oct. 13th
    
   The Court

were of opinion that the clause, exempting “ postmasters, post-riders and stage-drivers who are employed in the care and transportation of the mail,” does not include assistant postmasters ; and that taking this clause in connexion with the 42d section of the statute of 1825, in which assistant postmasters are named and precluded from being concerned in any contract for the conveyance of the mail, it was clear that they were not intended to be exempted from militia duty.

Petitioner takes nothing. 
      
       See Revised Stat. c. 12, § 1.
     