Martin v. Mott

This was an action of replevin, originally brought in the supreme court of New York by the defendant in error Mott against the plaintiff in error Martin to which an avowry was filed, containing substantially the following allegations: That on 18 June, 1812, and from thence until 25 December, 1814, there was public and open war between the United States of America and the United kingdom of Great Britain and Ireland and its dependencies and the citizens and subjects of the said countries respectively, and that during the continuance of the said war, to-wit, on 4 August, 1814, and also on the 29th day of the same month, in the same year, at the City of New York, to-wit, at Poughkeepsie, in the County of Dutchess, his Excellency Daniel D. Tompkins, Esq., was then and there Governor of the State of New York and Commander-in-Chief of the militia thereof, and being so governor and commander-in-chief, he, the said Daniel D. Tompkins, as such governor and Commander in Chief, on the several days last aforesaid, and in the year aforesaid, and at the place aforesaid, upon the previous requisitions of the President of the United States, for that purpose made, and to him directed, as such governor and commander-in-chief, did issue two several general orders, bearing date respectively on the said 4 and 29 August in the year aforesaid, in and by which said two general orders, among other things, the said Daniel D. Tompkins, as governor and commander-in-chief as aforesaid, pursuant to such requisitions, and in compliance therewith, did detail certain parts and portions of the militia of the state, as he was required to do in and by the requisitions of the President of the United States, as aforesaid, and did order the militia so detailed into the service of the United States of America, at the City of New York, within the Third Military District of the said United States, as in and by the said two general orders may more fully appear. That the said Jacob E. Mott, on the several days and in the year aforesaid and until 25 December in the same year, being a white citizen of the said State of New York, inhabiting and residing within the same, and between the ages of eighteen and forty-five years, was liable to do military duty in the militia of the said state and was a private in the militia of the said state that was so detailed and ordered into the service of the United States aforesaid, and as such private in said militia was bound to do military duty in the militia of the said state so detailed and ordered into the service of the United States in the Third Military District of the United States. That on 24 September, 1814, Morgan Lewis, Esq. was a Major General, commanding the army of the United States, of the Third Military District of the said United States, in which district the militia of the State of New York, detailed and ordered into the service of the United States as aforesaid, had been ordered to do military duty in the service of the United States. And the said Morgan Lewis, so being a Major General, and commanding as aforesaid, did, on the day, and in the year last aforesaid, as such major general and commander, issue general orders to convene a general court martial for the purpose in the said orders expressed, composed of so many and such militia officers in the service of the United States in the said Third Military District as in the said orders are mentioned, it having been then and there considered and adjudged by the said Morgan Lewis that a greater number of officers than those detailed on the said court martial could not be spared from the service of the United States without manifest injury to the said service, which said general orders are in the words and figures following, to-wit: "Adjutant General's Office, 3d M.D. New York, 24 September, 1814. General Orders. A General court martial, under the Act of Congress of 28 February, 1795, for the trial of those of the militia of the State of New York ordered into the service of the United States in the Third Military District who have failed to rendezvous pursuant to orders, will convene on Monday, the 26th instant at Harmony Hall, and will consist of the following members, [enumerating them, being six in number], which General court martial was continued (although varied as to its members) by various general orders set out in the avowry until 13 May, 1818."