Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1868-10-14
JIIs gaaxpiIIe #hig.
SUPREME COURT OPINION.
NASHVILLE TEpSrssEe DrcEHHfn TFHA i''
fuOsAs n. o0uDvrA. srTaasfr a'srs'' 40
GIBSON MERRITT ET AL. r.. THE Ma ~, "N
EIDFRMKN OF NASHVILLE b.

7huaae n. ecLnWtiAs trlHAhAh
GIBSON MERRITT ET AL. r.. THE MAfoh ~
ALDERMEN OF NAsliN Lib g., Of
This was action commenced 70 ne ssS bv de plain
Davidson cosefv on the zth Of May, lse- srptsmber
IA cybson N.frtss administrator Al ,,ss motion,
term 1883 the writ and declara'np Ioran and vic
amended By making a. q. heri'.- i.rm 1880 there d
r.-tie, rlafofas AZ the January - .,sies ana the
I,l, .-t-s .boysIpg fhat these nc" "a - ,5aintifs
Bafldinr ,snd Loar Association Isss he cause was
By conssna Al he as5 h a rnistria AfieT
se.ll - f.susry torm, 1867, the dsieni.n1 ~ -
- - f-arsfer the cause % the eifceit Sou' - ~
Yinlf staies which motion Nas tell. i..;,tsd 10
,s,tss term 1857, he cause vas again
r1 Il versct returned in faTer Of nc aeieau-
nd spoua motion for . new ira. esing 0'e'''
,rresi in error vas Pfosccnted 20 thls court
/, h proper 70 remark that The declaration ooDs..- 80
Gee eoaptf The first u trespaEE, Tor eneflsg 10
~. lsnd, Of the plaintiff eating snd carrying r9
mount u timber. The Fecsed u 10 rofet s,ov
ing zoo cords Of wood The third : N aeS h for he
res-iyea On The sais Of wood ard the iegrlh The
urce IA wood sold ~ DE painiia 70 nc
dcicnaasi pleaded nss guilty, I'd aeei - - ats Of
and 90 statute Of two years, p.oyioea d n 1885,
CoEs,ees approved March 81, 1858 ana nay ',Isip.
- ~ ~ .con a. tbo mart Of The added, o. rev
tia Issue Wa joined Che first three 49, y, ertios
murer 10 the last Dat on agro'msst o. 80 upon the
hatobjcetions % the fourth plea mgh, - isrsror the
tfial az n che fanse was conBidsrea uP'"
In he progrcs e tke trial various 4, ,be
taken 70 the admission II the evidence 49, 49,
HutI Te1t . II
a0., ~ i.;ise ~ slo,ed bis testimony - cnlcl'
and drring AZ cTguipaion Of the defendants 70 80
10. G. Smith, who, % seems, under tnc us,ioB In
Mayor q the city acted a. agent o. '.o ~ yoauest
supplying She city with wood, stated l.a =. - csTt 81
Of che Mayor III tbe al u 1861 be went - - al
Clair Mofisn nho had eommand q 5oI. = !, III cut
learn iroh rim What wood be bad eondeginsl. " VIZ
down and given for u'o a. iaai VIII. and eomuuca
ness went b Capt Aloron AZ directed aua "a ntcd
Ted hT b,hmsa Morton wcHi With Wines ana - ~,
out al ihe wood 10 be cleared, and sag ~, oods
down and taken away. Morton poin'ou ~ - Wit
besides Mcrriit's which be said must como NV" -
sore smoke In Ieproca0ry torn in cutting sVnio -
of woods especially telling Capt hortos "a - ~
cd 10 a q uion man Capt Morton Iopsosdt tus s.s
crv ,rv fkaf apy u eFo groFcf should be aestfyyea
l.t tl,t n 100 rssntiug mas come a0Bn, ana
he Icn away 10 dear the range Of the guns Of inc iof
and 10 prcvo5t the woods being used az covert ~ inc
enemy TIr esid II wss a military necessity.
To this evidence, which h set cut literally, the pam
IA by his attorney oxccpted especially 10 the declara-
iion that ~ military necessity 70 remove INC
nml,or boz he court oFcrruled ihe exception aha M
Iced Ire evidence 70 20 20 the jury.
IA h propor 10 remark that theso declarations OF
Cen Eogloy who, u seems, was in command Of the
military post Of Nashville at The time, 81 inc same
character which were excepted 70 ana me eAeeplOns
orerrulod. Capt. Merton the Chief Engineer Of
the Army Of the Cumborlands, and Il is argued that
tho military rank and position occupied By these ON
ceu gv4s them some sort Of exemption frem TIC com
mot nlbs " egidenes bot We are utterly unable %
dishngui,h between their conversations and The con
VIBRATIONS Of ordinary citizen.
II Il clear upon the painest principles Of evidence
that The declarations Of Capt Morton, when no reason
shown Why be was made witness, we're mere hear
say and excluded ~ such By the established rules OF
evidence. Grecnleaf, % Swan, l7s.
The admission Of this evidence IN tho attitude o.
this record before rs goes 70 the gs 81 me aeuon
and II 81 d Itself enough 10 fequire reversal Of the
case.
The charge Of the court Is also exempdonable. His
Honor the Circuit Judge, in gubtiance, instructed the
Jury that II they believed from the evidence that
OH havf Of al
when the grove IL found, for military PURPOSES either
By verbal written order condemned the forest and
afterwards The timber thus condemned way, BY per
mission Of the military authorities, taken by the uor
poration NJ is agents they would not be responsible
This part Of the charge has direct application 10
the count in the declaration FOR trepass, and assumed
that after the order condcmnng the forest the permits
sion granted the defendant by the military commander
90 the trees license protection 20
them against tho alleged tfcspass.
To enable tbe defendant 70 avail itself Of this defense
70 common law The license or excuse must have been
pleaded specially Chitty margin 5O5-and by our
statute sections 2,93 and l4I5 he bound to give
notice Of his special defense; therein evidence
lied on was inadmssibe, and the charges inapplica
be The ploadings FOR which the must 60 back
without discussing other questions
This, think, was also improper, 70 say nothing
about the Questionable language) h the charge in re-
lahon 30 the right Of military commander to tres
pass take private properly without frst showing by
proof that there Immediate impending danger
immediate necessity urgent for tie public services by
which be iwpeled 10 do so, or Of the authority Of
uch msitasy commander 10 diFpesc Of such property
when taken impressed for the bioft Of third persons
act connected with the army Mitchell vs.. Hermay, -
Howard, %. Butes 10 these ordinarily whether the
,5urs may and appreciate the patriotic motives
military conmandcrs In the exercise Of powers derived
rom the urgo0t necessity Of the case they cannot excuse
heir trospassc. Such questions belong 10 tho political
iower Of The Government and the act Of Congress
led bar 10 this action, BY lapse Of time, Is
triking example Of such intorpOson by the political
Of tho Government 10 protect It's officers and sol
tiers against such tressraEsos and acts empowered
~ Law. But do not doom Il necessary to discuss
hcso ao Of Congress 10 mako any decision upon H.
Notwithstanding they held BY ho Circuit Court to be
applicable this case constituting bar TO the action
ndor tho plea Of tho statute Of limitations II proper
crhaps 10 remark that the act May, 1866 enargcs
I'D extends The act Of March, ls63 but do not think
be former ac b extended far enough 20 embrace tht
II Is not pretended that the order under which tho
oiendant protenas 70 justify ordarod military
rider 10 the city coporation 10 the timber in
ucsiion, without which there be protection Al
ios the city authorities claim 10 have acted by perms
ION. and not under military rcstraint and If they acted
oluntary and for their benefit they cannot claim
he benefits Of the act of Congress Besides we do not
hnk these acts Of Congress intended by the nation
Legislature 10 embraces the class Ct cases now before
io court
Reverse tho judgnoni, and a new trial granted.
MILLIGAN, Judge.
Attest J. G. Frazer, Clork.
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