
    Rathbun against Martin.
    t] A soldier m not amenable Martial o^the United Stoles, “ failed, neg-fused%oD<rendezvous, and service of states, in obe- ^®® ‘J|® Governor of this state, in compliance with the requisition . of the President of the United ¡States”
    
    
      REPLEVIN for books taken by the defendant from the possession of the plaintiff. The defendant avowed and justified the taking, as deputy marshal of the United States, acting under a certificate signed by the President of a Court Martial, for collecting a fine, “ for having failed, neglected, and refused to rendezvous, and enter the service of the United States, as a soldier in the militia, in obedience to the orders of his Excellency, Daniel D. Tompkins, Governor of this state, on the requisition of the United States.” To this avowry, the plaintiff demurred specially, and assigned nineteen causes of demurrer •, and the defendant joined in , demurrer.
    
      A. Smith, for the plaintiff. ‘
    
    Shufeldt, for the defendant.
   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 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.  