Rathbun v. Martin

Platt, J.

delivered the opinion of the Court. The questions presented on this demurrer, with two or three exceptions, are the same which arose in the case of Mills v. Martin. (19 Johns. Rep. 7.) In that case judgment was given against the defendant, after mature deliberation; and the principal objections to the avowry, on which our judgment rested, in that case, occur here again in their full force-Without entering the wide field of discussion, we think it sufficient to repeat here, that according to the Constitution and laws of the United States, a soldier of the militia was not amenable to a Court Martial of the United States, " for having failed, neglected, and refused to rendezvous, and enter into the service of the United States, in obedience to the orders of the Governor of this state, in compliance with the requisition of the President of the United States.” And we are also of opinion, that if such Court Martial had jurisdiction over such delinquent, the requisition of the President, and the orders of the Governor, are not set forth in *344 the avowry, with such particularity and certainty, as are requ^e¿ },y ¿Jje ru¡es 0f pleading.

There are other grounds of exception, which it is deemed unnecessary to advert to. For the reasons of this decision, we refer to the opinion expressed by the Court, in the case of Mills v. Martin. (19 Johns. Rep. 7.)

Judgment for the defendant.

N. B. In the cases of Robert S. Livingston against Martin, and of J. F. Bartlett against the same defendant, the like judgments were given.