
    THE STATE, ex rel. GRAHAM, in re EMERSON.
    [CERTIORARI TO REVISE PROCEEDINGS UNDER HABEAS CORPUS.]
    1. Inability of furloughed conscript to militia service. — An enrolled conscript, who is on. furlough, is not liable to militia duty at the call of the State, although his furlough states that he has “made application for exemption as an overseer.”
    2. Persons within conscript ages, held constructively in military service of the Confederate States, and not subject to militia duty. — Under the act of congress approved.Eebruary 17,1864, a person who is between the ages of seventeen and forty-five years, and who is not shown to be specially exempted, is constructively in the military service of the Confederate States, and is not liable to militia duty at the call of the State.
    On the 15th April, 1864, Reuben F. Emerson made application by petition, to the probate judge of Montgomery county, for the writ of habeas corpus, to procure his discharge from the custody of Ool. Wm. B. Grabara, commanding the second-class militia of said county. In bis return to the writ, Ool. Graham exhibited his authority as colonel commandant of the county, and the orders of the governor calling into service the second-class militia of the State; and alleged that, “pursuant to said order, the said Beuben E. Emerson reported to the undersigned, but claimed that he did not belong to said second-class State militia, and was not liable to military duty as one of said class.” On the hearing before the probate judge, the petitioner offered in evidence a paper writing, which purported to be signed by the enrolling officer of the county, was dated April 2,1864, and stated that said Emerson, “having been enrolled in this office, and made application for exemption as an overseer, is hereby furloughed for twenty days, to await action upon said application;” and the endorsements onit showed that the furlough had been extended, successively, for thirty and sixty days. The counsel who represented the State objected to the admission of this evidence, but his objection was overruled. This being all the evidence ■ adduced on the hearing, the probate judge discharged the petitioner. Exceptions were reserved on the part of the State to the rulings and decision of the probate judge; and application is now made for the writ of certiorari, and whatever other remedial process may be necessary, to remove the proceedings into this court and revise them.
    P. T. Sayre, for the State.
    Geo. Goldthwaite, contra.
    
   Per Curiam :

It may be conceded, without affecting the result of this case, that Mr. Emerson is between the ages of seventeen and forty-five years, and is therefore liable to militia duty on the call of the State, provided he is not, actually or constructively, in the army of the Confederate States as a conscript. Possibly this inference arises from the uncontro-verted statement in the return to the habeas corpus, that, pursuant to the call of the colonel commandant in the second-class State militia in the county of Montgomery, the said Beuben E. Emerson reported to the said colonel commandant, “but claimed tbat be did not belong to said second-class State militia, and was not liable to military duty as one of said class.” If be was not witbin tbe ages above specified, tbe call on tbe militia did not reach bim.

Taking, tben, tbe view of tbis question most favorable to tbe State in tbe present application — namely, tbat Mr. Emerson was between tbe ages of seventeen and forty-five— tbe question arises, did it appear to tbe judge of probate tbat be was exempt from military service in tbe Confederate States, and therefore liable to State militia duty ? Whether tbe paper called a furlough, produced in evidence on tbe trial, was legal evidence without proof of its execution, may present a very serious question; but it is unnecessary to decide it in tbis ease. If tbe paper was legally in evidence before tbe court, it only proved tbat Mr. Emerson was a soldier in tbe Confederate States service, on furlough. True, tbe furlough recites tbat. be, Emerson, bad “ made application for exemption as an overseerbut it does not show tbat be stood in tbe condition which would entitle bim to tbe exemption,.or tbat be bad executed, or even offered to execute, a bond. Tbe furlough was all tbe evidence in tbe cause. Governed by tbe unaided inferences arising from tbe fact of tbe furlough, we can come to no other conclusion, than tbat tbe petitioner was a conscript, out on furlough. Such furloughed soldier is not liable to militia duty on tbe call of tbe State.

On tbe other band, if we discard tbe furlough from our consideration, tben there was no evidence before tbe judge of probate; and it was tbe duty of tbat officer to discharge tbe petitioner from arrest as a State militia-man, because be was constructively in tbe army of the Confederate States as a conscript.

Yiewing tbe present application in every conceivable fight, we think there was no error in tbe judgment of tbe judge of probate prejudical to tbe rightful claims of tbe State ; and tbe writ of certiorari is refused.  