Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-12-08
SUPREME COURT OPINIONS
September Term - Knoxville,
1870.
Joseph ID. Heiskell. Attorney Gem
cral and Reporter.
No LA.

cral and Reporter.
No. IA.
Bird D. Bayless in error ". J. A. Estes.
In an action of trespass q plea, which attempts
to justify an act under the beIiigerent powers of
thu Confederate States, Is defective il il fails to
show the defendant was q soldier; that he was
"sble TO perform military duty" is not sufficient.
If q soldier could justify under the laws OF the
Confederate States to compel the service Of citi-
Gems in the armies, the Laws and orders under
which he acted must be plead specially. n
Material evidence admitted rebutting to what
was exclude by the Court, isa cause for q new
trial.
From the CiroSit Court of Washington
county, before Z. E. GiIlenwaters, j.
Nelson and Deaderick, is, being of
counsel, did not sit in this cause. Shields
and Mcfarland sitting for them.
]. G. Deaderick for plaintiff in error.
r. M. Barton and S. T. Logan for de-
PENDANT.
OPINION.
This was an action for false imprison-
ment in which the plaintiff recovered and
new trial being refused the defendant,
he has appealed in error. The defendant
pleaded not guilty, and special plea of
justification. To this latter plea de-
murrer was sustained by the court below,
and whether or not the action was erron-
eous, is one of the questions in the cause.
This plea AYERS the existence aud pen
dency of the late civil war between the
United States and the so-called Confede-
rate States, and that the defendant was
private soldier in the army. of the latter
power, and 'sthat while said civil war
was still pending and undetermined, and
while the said defendant was acting I'M
der the authority of the said Confederate
States and under the orders eff his supe-
rior officers, who were acting likewise
under said authority, he the said defend
ant, as an act of war, committed the
supposed acts of trespass Gf they were
committed at alp in order to compel the
said plaintiff to perform military service
in the armies of the so-cslled Confede-
rate States, he being liable, urder the
laws and orders of the said Confederate
States, and to the military orders thereof,
to render such SERVICE
1t may be as safely assumed that the
armies of the so-ealled Confederate States
hcarried on the late war with the United
States mainly in accordance with the
usages and customs of civilized nations,
and became entitled, pending the contest,
to the rights of belligerents; and we would
not be inclined to hold that a soldier of
the late Confederate army could be held
civilly liable to the courts of the country
for an act which is in Itself a legitimate
act of war, according to the customs and
usages of civilized nations, and which
was done in obedience to the orders of his
superior officers in said army, when the
defence is properly presented by plea.
We should further hold that deserter
from the Rebel army could not maintain
this action against another soldier of that
army for srresting him and returning him
to his command, under the orders of his
officers, where this defense is properly
| plesded-the right to enforce discipline
and obedience among its own soldiers be-
ing one of the clearest rights which the
bellgerent power possessed. Judging
| from the proof in the record, this was
the defense intended to be relied upon by
the plaintiff in error, but the plea in
question does not, we think, rly
present this defense. 1t is not averred
that the plaintiff below was a soldier in
the Rebel army, but tina. he was liable to
perform military duty in said army under
the laws and orders of said Confederate
States and the military orders thereof. y
In the case of Jones vs.. Hickman, 8 Wal
lace, it was held that the laws of the
said Confederate States were a nullity
and no justification for any act performed
in obedience thereto, and could not be
recognized by the courts. Whether the
enforcement of the law by the military
power would be valid defence, we need
not determine. To raise this question,
laws and orders under which the plaintiff
in error professed to have acted, should
have been more distinctly and specifically
pleaded. We are, therefore, of opinion
that the demurrer was properly sustained
1t is not argued that new trial should
be granted because of the admission of il
legsl testimony.
The arrest complained of occurred, al
| proven by the plaintiff himself, about the
| month of August, 1868. The defendant
introduced proof tending to show that the
| plaintiff had belonged to the Rebel army
| previous to this time, and had deserted,
and the arrest in question was made IN
der general orders to arrest deserters
The Circuit Judge in his charge told thu
jury that the demurrer to the plea of jus
LITIGATION having been sustained, evidenct
cannot be looked TO in justification, ant
is not allowed for that purpose. Hi
Honor told the jury that in mitigation Of
damages they might look ''to the cir
sumstances under which the arrest or i'm
prisonment was had as to whether tier
was the absence of wantonness and NAL
ice" To all this theIe could be no jus
exception, but the plaintiff below wa
permitted to introduce as rebutting test
mOny against objection that previous t
the arrest in question in February, 1868
he was brought before an examining
board, who refused to exempt him, ant
refused to allow him choice of commands
and in the proof the; conversation an
declarations of the board were admitted
as was also the conversation then had be
tween the witness and the plaintiff. Ais
by another witness, David Nilds, that on
| evening he met Estes where he was sc
GREETED. He said he was trying to max
his escape from the Rebel army; that hi
only chance to keep from going to Vicks
burg was to volunteer under Byers; tina
he had got furlough and was trying 4
escape. He said he wanted to get ava,
because he did not want to go into tn
Rebel army and did not want to stay i
it. He was also permitted t
prove by Thos. Collins that on tn
way from Strawberry Plsins to L1udd
Estes said be had been tied and brOugh
there in strings ike horse thief and dit
not believe in TIE ID ConfedeTacy, an
would leave al soon as he codld, etc
all this was 9dm;tted as Tebutting test
mOny over objection. There was Othe
testimony of the same character. TIL
testimony of the plaintiff in error g0ini
to show that Estes, was in reality RebC
soldier, being rather tending toward
justification, was excluded by his Honor
charge, and this question was not befOr
the jury, and consequently there Wa
noihi"g to rebut. 1t will be observed tina
his Honor did not instruct the jury ths
they might look to the proof of the &c
PENDANT, as 10 Estes the plaintiff havin
been a r bel soldier in mitigation of dan
ages, and it was improper to admit TIL
rebItting testimony to aggravate Ii
damages, for it is lot alleged that tn
plaintiff IN error, was pressed at tn
time of these occurrences, or was in an
manner connected Herewith. We CO
see no evidence in the record, which b
his HOnor's charge was allowed to 60
the jury, to which the above testimOn
be regarded as rebutting, and we think
was Improperly admitted. How far
may have prejudiced the plaintiff
error we cannot see-but under the fac
of the case, we regard the error, as a nj
terisl one, and for this reverse the jldl
ment, and remand the case for a ne
trial. R. MCFARLAND, Specl. Judge.