
    Greening against Sheffield.
    DECEMBER, 1824.
    
      Í, Service of a writ of capias (though not requiring baii) on defendant while returning from a militia muster, is void.
    2, Action at law will not lie vs. an executor on his contract in that character.
    ASSUMPSIT by Wade H. Greening, executor of J. Greening, on a promissory Note. Plea—that the writ was executed on defendant while he was returning from a bat-tallion muster, to which he had been for the purpose of performing militia duty. Plea verified by affidavit—general demurrer to the plea—:demurrer sustained, and resp. oust. awarded. Defendant declining to plead further, judgment was entered against him for the amount of the .note and interest, not designating him as executor, or stating to be levied of the goods, &c. of his testator. The matters assigned here as Error appear in the
    
      H. G, Rerry, for plaintiff.
    
      Crawford and Hitchcock, for defendant in Error,
   Opinion of the Court delivered by

Judge Crenshaw.

The first assignment is, that the Court erred in sustaining the demurrer to the plea in abatement. The Statute declares void any arrest by any civil process while going to, continuing at, or returning from, any muster, court martial, or other military meeting. 1 am of opinion that it was the intention of the Legislature to make void any service of process against the person of any one so situated, whether the process was bailable or not. If the Statute were of doubtful meaning, it ought to receive the construction most beneficial to the party to whom the law has extended a privilege. The demurrer to the plea in abatement should have been overruled.

The second assignment is, that the action is against Greening in his character of executor, and the judgment is de bonis propriis. The writ and declaration are against the plaintiff in Error in his representative character, and the judgment, if any, should have been to be levied de bonis testaioris. But the contract appears to have been made by the executor and not by the testator; and in a Court of law the estate cannot be charged with such, a contract. Greening, though liable in an action properly brought against him in his individual character, cannot be made liable in this action against him as executor.

The judgment must be reversed.  