Richard H. Vose vs. James C. Howard, 13 Me. 268

After a continuance for advisement, the opinion of the Court was drawn up by Emery J. In this action a nonsuit was directed in the Court of Common Pleas, and the matter comes before us on the exceptions taken against that direction. It is certainly desirable that efficiency should be given to the sentences of courts martial, and that for trivial causes, delays should not be interposed to defeat their judgment. Celerity of punishment is necessary to maintain discipline.

But it is the design of law to open the way for investigation as to the regularity of the organization of this species of tribunal of limited jurisdiction, when a civil suit is instituted to recover the fines imposed. We cannot deprive the citizen, who is sued, of any of the protection, which our law extends to his case. We are to take nothing by implication.

The objections urged by the defendant’s counsel are, that the record is deficient in not shewing the members composing the court martial to be detailed by the Commander-in-chief from the Division to which the officer belongs; does not shew that any marshall was appointed; that the commander did not designate who should act as president; nor that any order was issued by the Commander-in-chief, nor that the charges were in writing, and that the record sets forth no offence against military law, and that the order is not to be used to shew what the charges were.

We do not profess to ground our opinion solely on the want of evidence as to the appointment of a marshal, though it seems by law to be a peremptory provision, that he should be appointed by the president, and the president with advice of his associates may appoint a warrant officer to attend upon them, because it is not brought home to our conviction, that this officer would very materially enlighten the judgment of the Court on the subject committed to their consideration. Yet we can readily imagine that such an officer might aid in the preservation of order.

But on examining the cases cited by the counsel for the defendant, we are constrained to say, that “ the plaintiff had not gone far enough to malee out his case.” The exceptions therefore are overruled, and the nonsuit is confirmed.