Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-01-11
Nuiun aud dispatch.
SUPREME COURT DECISION.
knoxville. Tenn. September Term
Fegg

Knoxville. Tenn, September Term.
1866
: H. Coclrm, oad Lorenzo Thompson, 10
avo,, VS.. Edmond Tuotyr.
This Is lrcspass for the arrest and inn
Of the defendant IN error.
The declaration LAYS the damages al five
Thousand dollars, 10 which there is plea
of not guilty, with notice Of the real de
Tense relied on in the notice IL, " that the
plaintiffs IN error were I'm the military ser
vice Of the Confederate States, and that the
defendant was a soldier IN the army Of the
United States and that these powers were
20 war with each other and are entitled 90
and exercisedsall the rights Of belligarents
engaged in public war; and shat whatever
was done w plaintiffs IN error. was done
under orders and that the capture aud
imprisonment was a lawful act of war, and
That they are not personally and ciyilly
liable for the same
A motion was entered 10 strike out the
notice Of the real defense As above set out,
which was overuled BY the court.
The proof shows that the plaintiffs in er-
r8r. ON the 18th OF jane 1853, with several
DUNLAP, one Of the witnesses about, mid
might, and 'alter knocking and yelling sew
cral times al the door, were admitted,
when they Immediately presented their
guns and pistols, took possession of the de-
lcndant IN error, pulled him over the house
hy the hair Of the head, threatend 20 shoot
him, tied his arms and put him on a horse
then tied his feet under the horse, and
marched him on 10 a neighbors house,
and locked him and others up in a smoke
house with guard Of eight armed men
around It.
The defendant In error had been a soldier
in the service Of the United States, was
regularly, before arrested, discharged on
account Of impaired heath and for some
time previous had been about home, bul
kept himself concealed from all but his
friends
AZ the time Of the arrest, Tucker, the de-
PENDANT in error, claimed that he was a Fed
eral soldier, and sent for his uniform,
blankets, etc, 20 establish the fact.
The proof further shows that some Of the
party who made the arrest were Rebel
soldiers; bat that Cochran, one Of the plan
ifs in error, who, as it appears in the evil
dence. " led the crowd, was private citi-
zen. Thompson the other plaintiff in en-
ror, was a Rebel soldier, and claimed q
az; under one Taylor, who, il appears, waf
an enrolling officer in the Rebel service.
Il also appears chat Cochran sent word
20 Taylor for men TO arrest Tucker, the de-
PENDANT in error, and Taylor ordered the
men 10 20. One Of the witnesses Russell
Parsons, says he was a Rebel soldier, and
was with the party, and there was no officer
in command that he knew Of
The court in substance charged the jury
That at the time Of the alleged arrest a
great civil war was raging between the
United States and the so-called Confederate
States, and that the war had swelled into
such gigantic proportions that the Con,
iederate States as a military power, wer,
entitled 10 belligerent rights. But the &C
quirement Of belligerent rights would mol
be held to confer upon citizens residing
within the military lines OF the belligerent
power, the right % afBume the exercise G
violence upon their fcllow-citizens, neither
can it Justify violence on the part Of soldier.
enlisted in the so-called Confederate army
against citizens Of the country not arrayed
ia hostility against their cause, especially
when soldiers were not acting at the tim,
under the orders Of SOME superior oihcci
properly in command of them.
The jury found for the plaintiff below
and assessed his damages at $1,000 TO re.
verse which a writ Of error is prosecuted
10 this court.
The ground set up aud relied on as q
justification for the trespass complained o
in the notice Of the real defense to this &C.
ton, and insisted upon in argument here
are, that the Plaintiff error and the de.
PENDANT belonged 10 the different partie.
engaged in open war with each other, and
that the former as belligerents had a right
10 arrest and imprison the latter az an act
of war, without liability 10 the civil ttihu-
mails Of the country
Admitting the right of both parties, On.
ring The late civil war, TO exercise, in the
conduct of the war az against each other
the common rights Of belligerenis il by nC
means follows that the common s0ldiery OF
citizens adhering to the insurreCtionary
power, are justified, without authority oil
law, OF the ordeTof themilitary commander
OF the public forces 10 whom such soldier.
NAV belong, 60 arrest and imprison persons
residing within their military lines. Nor.
row Ys. Blevens, 4th Hum, 223 Sol
diers, says NRttel, section 230, can nm.
dertake nothing without the express or tacii
command OF their oficeIs To obey and
execute is their province, not 10 act of theiI
own discretion; they are only instruments
ia Jhe hands of their commanders. Let il
be remembered here, that by tacit order
mean one which is necessarily included
m an express order, or in the functions
with which a person IL entrusted by his $40.
perior."
In this case the Circuit Judge, in his
Charge-not incorporated in this opinion
certainly gives the plaintiffs in error the
full benefit Of the law. They do not, nor
can they reasonably complain Of it. The
portion Of the charge set out, and excepted
20, is equally free from objections, Il is a
clear, fair, and accurate statement Of the
law governing this case, and the jury are
we'll warranted, under the proof in finding
40 they did.
The notice Of the real defense is certainly
inartihcialiy drawn, and defective in seye-
raj important particulars, and the Circuit
Judge would have been, on motion, well
warranted in striking il ont But that
motion was refused on application Of de-
PENDANT in error, and the plaintiff can take
no advantage Of il here
IL does not pretend 10 Justify the arrest
and imprisonment, under the orders Of any
specited military commander Of the Rebel
forces; nor does il, in fact, state the act
complained Of was done under the military
authority. lt simply alleges that il was
done under orders, and the capture and
imprisonment was a lawful act Of war;
This is certainly not sufficient 70 give the
defendant in error reasonable notice of the
real defense intendedto be made. and might
have been properly stricken cut
The effort in the proof seems 10 he To
Justify under the orders Of Taylor.gwho il
seems was an enrolling officer under the
Rebel authority but the proof is clear that
the whole scheme Of fuckers arrest. was
set on foot at the instanceof Cochran, who.
il ls shown, was a private citizen. lie sent
20 Taylor for men to arrest the defendant
In error, and as one Of the soldiers swears.
led the crowd" The facts Of the whole
case leaves no room % doubt that the party
who made the arrest was a lawless band Of
men, acting without any direct authority
from the military officers Of the Rebel
organization, with a malicious purpose TO
harrass and Cypress those who differed with
them in political opinion.
The damages IL Is insisted, are excessive
We 80 not think 80. The wanton and
cruel circumstances attending upon the
arrest, were such as 70 make this an OK
Ceedingiy aggravated case, and we cannot
say from the evidence in the whole cause
the jury were not fully warranted IN find
ing the verdict which they delivered
Aim the Judgment
MuLGAN, Judge.