POSSE COMITATUS (Lat.). The power of the county.
The sheriff, or other peace officer, has authority by the common law, while act ing under the authority of the writ of the United States, commonwealth, or people, as the case may be, and for the purpose of preserving the public peace, to call to his aid the posse contitatus; 1 Bla. Com. 343.
But with respect to writs which issue in the first instance to arrest In civil suits, or on mesne process, the sheriff is not bound to take the posse •comitatus to assist him in the execution of them ; though he may, if he pleases, on anticipated, or actual resist ance to the execution of the process ; Co. 2d Inst. 193; Co. 3d Inst. 161 ; Coyles v. Hurtin, 10 Johns. (N. Y.) 85; State v. Al lison, 47 N. C. 339.
Although the sheriff is not bound upon a capias ad respondenduin to take the posse comitatus, it has been held to be his duty to do so if he has any reason to anticipate resistance; nor can it be said to be a hard ship on the sheriffi that he should be bound to provide against resistance ; 12 Jurist 1052; Winst. 144. And likewise with reference to capias ad satisfacienduln; Abbott v. Hol land, 20 Ga. 598; and he cannot, in an action for escape, plead that the prisoner was res cued; id.
Having the authority to call in the as sistance of all citizens, he may equally re quire that of any individual; but to this general rule there are some exceptions; persons of infirm health, or who lack un derstanding, minors under the age of fif teen years, women, and perhaps some oth ers, it seems, cannot be required to assist the sheriff, and are, therefore, not considered as a part of the power of the county; Viner, Abr. Sheriff (B).
A refusal on the part of an individual lawfully called upon to assist the officer in putting down a riot is indictable ; 1 Carr. & M. 314. In this case will be found the form of an indictment for this offence.
Although the sheriff is acting without au thority, yet it would seem that any person who obeys his command, unless aware of that fact, will be protected ; McMahan v. Green, 34 Vt. 69, 80 Am. Dec. 665.
An individual not called upon by the sheriff to lend his aid does so at his peril; Kirbie v. State, 5 Tex. App. 60. In a case where the defendant assisted a sheriff's of ficers in executing a writ of replevin without their solicitation, the court held him justi fied in so doing ; 2 Mod. 244; see Williams v. Bunker, 78 Me. 373, 5 Atl. 882; Reed v. Rice, 2 J. J. Marsh. (Ky.) 44, 19 Am. Dec. 122; Bac. Abr. Sheriff (N); Comfort v. Com., 5 Whart. (Pa.) 437.
The employment of the army in this way is forbidden ; Act of June 18, 1878.
See SHERIFF; PEACE; MARTIAL LAW.