Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-10-03

actlated by malice or any revengeful in
tent on the part of the defendant. So far
as the right of the plaintiff, to maintain
the action, as before said, the question sub
mitted for your consideration upon this
| point is, was the act done by the defen-
dant Ii SO, was it done without lawful or.
| iustiiable authority p t4 ~
Fourth Count-Then as to this fourth
count, in troVer, and conversion alone,
it deyolves upon the plaintiff to make
| ont his cause upon this count of proof
| that the property therein mentioned be-
longed to him, or was lawfully in his pos
session, and that the defendant unlawfully
took and converted the same, if be did, or
| caused it to be done, under this issue he
| would be liable for the value of the same
at the time of the conversion, or such parts
| thereof, if any so proved, and converted. Ii
the defendant caused Others under his cora-
mand, as it is termed, to take and exercise
unlawful ownership of this property, unau
thorized by law, this would be an illegal
taking and a conversion. The conversion
was complete the moment the property
was so taken this however, you must
determine from the proof, both positive
and eyidential - ~
1t is insisted by the counsel of the de-
fendant, and the court is asked to charge
you, that if you believe from the proof that
the defendant was an officer, General, in
the so-called Confederate army, and as
such, under orders from his superior Off
GERS in said army, to-wit: General Forrest
or General Bragg, caused the plaintiff to
be arrested and imprisoned for violating
the laws of war of the said Southern Gen.
federacy, he, the defendant, at the time,
being only subaltern officer, he, the de-
fendant, would not be liable. Also several
other instructions of the same import, as
far as the court can read and understand
them, going to exculpate the defendant, all
OF which the court refuses to charge, except
as before, and will now charge you, and in
lieu Of said instructions asked, the court
will say to you, that if, from the facts, you
should find that the defendant was known
or recognized as Rebel General under
Forrest, Bragg, or any one else, in rebel
lion against the government of the United
States, and as such, had command of what
they called the Post at Huntsville, Ala,
and as such General arrested, or caused to
be arrested, and imprisoned the plaintiff,
although directed to do so by General For
rest, General Bragg, or General anybody
else, in the Rebel army, such order or ar
rest was in violation of the laws of the
United States, null and void at least, no
justification or excuse; and if the defend
ant, in executing such orders, arrested and
imprisoned the pliantif, and took and
carried away or converted his goods, or
caused it to be done by the officers and
men under him, he is liable for all the
damages sustained in consequence thereof
All concerned in executing such orders
were trespassers and instruments of such
orders, and defendant being such an officer,
etc, instead of it being justification or
excuse, it is an aggravation, they being
engaged in an unauthorized and unholy
war.
But the mere fact that the defendant was
an officer in the Rebel army, and engaged
in an unlawful rebellion, aiding in carrying
on war against the government of the
United States, would not make him liable
or responsible for the acts of others en-
gagged IN the same war, or trespasses COM
mitted by others under his command, un-
less so ordered or commanded by him, or
aided or encouraged the commission thereof
Then to hold the defendant liable for the
trespass and conversion complained of, you
must be satisfied from the proof that it was
done by him in person, or by his orders or
command Then look to. the proof and see
how this h If he was not present, and did
not order, command or encourage the tres
pass and grievances complained of, he
would not be guilty, or if he could not help
| it, or it was done unbeknown to him, and
| he disapproved the acts when brought to
| his knowledge, and did not Tatify the same
or any part thereof, he would not be guilty,
and if the facts are this way, your verdict
| should be for the defendant But how all
this is you must determine by the proof.
| If, however, you should find the issue for
| the plaintiff then the remaining question
would be as to the damages, and this you
will ascertain by the principles announced
| to you by the court.
First-Under these principles, the plain
tiff would be entitled, first, to all reasonable
and necessary expenses, ifany proved or Oc-
casioned to him, in consequence of the
trespass of imprisonment or illegal arrest.
If you should so find in this, you may take
in consideration his necessary counsel fees,
as the same are declared for, also the value
of the goods SO wrongfnlly taken, destroyed
or converted by the defendant, or cause TO
| be 50 taken, destroyed or converted while
| the plaintiff was so imprisoned, as stated in
| the first count, or converted as stated in the
fourth count All such, if any, would be
the actual damages, as you may ascertain
| by the proof To this you may or may
not allow interest, as you may see proper.
.Second-Then for the arrest, imprison-
ment and trespass to the person as COM
| planned of, you may allow such damages as
you may in your answer think proper under
all the facts and circumstances. In this you
may look to the condition Of the parties at
the time. As before charged, yon, if the
defendant was a Rebel General, engaged in
an unlawful and unjustifable war against
the government of the United States, in-
stead Of this being justification or excuse
as insisted by his counsel it would be an ag-
gravation for which you may give exemplary
damages, or smart money as it is sometimes
called. To be engaged in an open war
against the government of the United
States, and then to arrest and imprison
citizen because he is not so engaged, or for
differing with him in opinion as to the re
bellion, or that the citizen was engaged in
a contraband trade as his counsel call it,
against said rebellion, is an aggrayation
instead of justification. 1t was not neces-
sary that the plaintiff should be actually in
| Jail but was he deprived and restrained of
his liberty, and while thus restrained NAL
treated, assaulted, etc. All this you may
look to in assessing the damages. The gues-
tion of such damages are alone for the jury.
All other instructions asked for are refused,
except as here charged. l am asked to
Withdraw certain evidence from you, that,
the evidence of Barrham, as to what Mr..
Cruise said when he took the goods. This
the court refuses to do. If the defenant or
dered or directed these goods to be taken
by this man, and he went in obedience TO
instructions from the defendant to do what
he said and done at that time, is part Of
the res gestS and is competent, but it would
not be competent as original evidence; but
if acting as commanded By defendant, then
it is competent, and therefore, l cannot
Withdraw it.
CROCkER'S SCHOOL,