
    William Porter Junior, Judge Advocate, versus Timothy Wainwright.
    The duties of a commanding officer of a division in the militia, and those of a brigadier-general, cannot be performed by the same person ; so that where a brigadier-general, as commanding officer of the division, detailed one officer, and as brigadier-general, detailed another officer, to sit on a court martial, it was held, that the court martial was illegally constituted and that its.proceedings were void.
    This was an action of debt to recover a fine imposed upon the defendant by a court martial. It appeared, that during the temporary absence of the major-general of the fourth division of the militia, the command devolved upon Brigadier-General Warner, and that Warner, as commanding officer of the division, detailed a brigadier-general, and as brigadier-general, detailed a lieutenant-colonel, to serve on the court martial; and it was objected on the part of the defendant, that when the command of the division devolved upon Warner, he vacated, for the time, his office of brigadier-general, the duties of the two offices being incompatible ; that the lieutenant-colonel was therefore improperly detailed, and the court martial irregularly constituted ; and that consequently the sentence against the defendant was void and the action could not be maintained.
   The Court were of this opinion and nonsuited the plaintiff. See St. 1809, c. 108, § 13, 31 ; [Revised Stat. c. 12, § 117;] St. 1821, c. 92, § 9 ; [Revised Stat. c. 12, § 101.]

Porter, pro se.

Bishop and Sumner, for the defendant.  