The Nashville daily union. [volume] (Nashville, Tenn.) 1862-1866, 1866-04-29

. ing to be enforced by law there is 10 con
tract expressed, implied or executory, and
II u should be claimed that sale Of an ami
nal thus offered and sold is a contract, We
shall not deny il; but answer that it is not
such q contract as mskes the vender con-
tractor within the purview Of any act Of
congress, for d Is decided By the Judge Ad
Focate General see Digest Of 0pinions un-
der title Contractors" H., p. 49, as fol-
lows: every seller Of supplies is not nee
essarlly D contractor for the army Of the
United States in the sense Of this act. To
constitute contractor there must be an en-
gagement between him and the Govern
ment imparting an obligation on the one
hand to sell aud deliver, and on the other
. receive and pay for the supplies and
this con tract may be verbal OF Wi tten- A
I continued supply, on an ordinary running
| account, is without further stpulations FIX
| ing the obligations Of the parties, and de
| timing the prices, terms, etc, would not
| charge the parties supplying with the re-
: sp0nsibilities Of a Government contractor
under the act"
There is nothing set forth in the specif-
cations or charges Purporting 10 be a con-
/ tact, or the substance Of one. II is the rule
Of law that whenever the fraud in written
/ contracts is alleged in any pleading, that
/ contract must be set forth, or at least so
much Of it as it is alleged has been yio-
/ lated. If the contract be verbal the sub
| stauce Of it must be set forth &c the same
| extent. This is not done in this case, there
can therefore be no offence for the defend
| ant.
In reply to the above argument, the
| Judge Advocate, Captain Vorbies, said
| This is a General Courtmartisl, convened
/ By competent authority, for the trial OF
such cases as may be ordered before it..
! The charges and specifications upon which
| the accused Is now arTalgned were referred
TO this court for trial by competent author-
! ity. One Of the material allegations in
each Of the said specifications is TO the ef-
feet that the accused, Isham Henderson, at
the time the alleged offences we're commit
ted, was a contractor for furnishing sup
plies to the Government Of the United
States, for the use Of the military service
thereof; which fact will be established by
proof Of a contract entered into, by the ac-
cused on the one part and the United States
Of America on the other part; which con-
tract was 70 the effect that the said Isham
Henderson should grszs about two thou
sand one hundred Government mules, at or
near Bowling Green, KY, aad that the said
Henderson should furnish the said mules
with salt, with medical treatment, and wi
eight pounds Of grain per mule per diem
4OA WHICH, TIC uUheEulnGuL ul the Gn4Lt0
States was obliged TO pay the said Hender-
son the sum Of eight dollars per mule, for
each month 50 grazed and cared for.
The act Of Congress, approved July II,
1862, expressly provides that "Any person
who shall contract 10 furnish supplies of
any kind or description for the army or
navy, he shall be deemed and taken as q
part Of the land ana naval forces Of the
United States for which he shall contract to
furnish such supplies, and be subject to the
rules and regulations for the government Of
the land and naval forces Of the United
States"
During the months Of July and August,
A. b. 1864, the contracts before alluded TO
was in fuu sway and eAect. During each
and every day OF the months in question,
the accused was providing supplies 10 the
Army OF the Cumberland, then commanded
by Major General Geo. II. Thomas, by issu-
ing for the mules Of said army more than
eight tons OF grain per day, under his con-
tract aforesaid. That grain, medical stores
and salt, are supplies of some kind OF
description, the learned counsel for the de- /
Tense viii hardly deny; and that the ac-
cused was Engaged in furnishing such |
supplies at ana during the time, laid in !
the specifications, upon which he is now ar
raIgned, there can be no doubt. Now, if the |
court please, its ate ton will be called TO |
the act Of Congress approved March I'd, A. /
ID. 1858, which provides that every person |
in the land or naval service of the United |
States, who shall commit certain euumera- |
ted offences set forth 10 said act, portion of |
which enumerated offences are laid in the |
charge and specifications upon which the |
accused is noN arragaed, shall be deemed Of |
a criminal offense, and shall be subject to |
the rules and regulations made for the gov |
eminent of the military and naval forces of |
the United States, aud o! the militia when |
called into and &C ually employed in the |
service Of the United States in time of war, |
and to The provisions of this act, and every |
person SO offending may be arrested end |
held for trial by court martial. This acc |
further provides that such person, even if
he may nave received his discharge from |
the service, or have been dismissed, and /
held liable to arrest and trial by court mar
tlal in the same manner and to the same |
extent as if he had not received such dis
charge or dismissal.
The act approved July 18th, 1862, and /
the Act approved March ID, 1868, taken in /
connection with the fact that the accused /
was a contractor within the peryiew Of the
law, clearly lays this case within The juris-
diction Of a court martial. And 1t Is
equally clear that no other than a court
martial has jurisdiction over the case. The
words OF the statute are, every person so Of
tending may be arrest. q and held for trial /
by a court marusl. l presume it will not |
be denied bg the defense, that when the /
word may occurs 10 statutory enactments, |
it is by all rules of law construed as shall, |
and If the accused may be held for trial by |
q court martial, he may NOT be held for /
trial by any other court. The law expressly |
says that any person who shall contract to |
furnish supplies OF any kind or description |
to the army of the United States, he shall be |
decreed part Of the army, and subject ~ /
tie rules and regulations from the Govern
meut thereof.
These rules and regulations, gentlemen,
bind you upon your solemn oaths to well !
and truly try, and determine according to |
evidence the matter now before you, be- |
tween the United States Of America, and the |
prisoner to be tried, and that you Will duly |
administer Justice according t. an act es-
tablighIng rules aud articles Ior the govern !
menJ Of the armies Of the United States. |
The jurisdiction Of this court, over the case |
now pending is established by law, and you !
as individual members Of this court are |
bound Upon your Oaths TO render decision |
according TO the evidence.
But II Is claimed thai the plea TO the ju-
risdicuon should be overIuled on another
ground. IL appears on the face OF the
charges and specifications that the accused |
was a contractor under the act of Congress
of July II, 1862, and made by it part of
the military forces OF the United Staees.
II also appears in the charges and speci-
6catiOns that be violated the provisions OF
the act Of March ., 1868, ana under II Is
charged with the execution Of a criminal
oflense. IL is Just Is essential that the
prosecution should prove that the accused
was a part Of the "laud or naval forces "
udder the act Of July II, 1862, as thai he
committed the otieuses charged under act Of
March 2, 1868. Bo,h must be proved by
the prosecution TO sustain a finding of
quitV TO the charges and specifications.
NoE, it is well settled that matters which
the prosecution must prove TO make out
case must bot, and, indeed, cannot be set
forth 10 d special plea. The only plea 10
be interposeI. in such case MUS be as to
TIE merits.
We ara OBLIGED L. Ed Willard, Union