Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-10-19

one witness, who is not contradicted
that; when the plaintiff appeared onth
day of sale, and claimed the property
she sfasked the defendant, Reynolds, fol
his authority for selling her property, anC
Reynolds told her he would see her in hel
before he would show her any authority,
or any other Rebel" eA3
These are the most material facts ap
pearing in the record. Verdict and judg-
ment were rendered for the defendants,
and the plaintiff appealed in error TO this
court. Various questions of law are pre-
sented by the record and in argument
1. 1t is provided in the Code, sections
2913-2917, that the defendant may enter
a general denial of the plaintiff 3 cause
of action, equivalent to the general issue
heretofore in use; that when such general
plea is filed, he shall give notice of all his
real defences, whether by way of denial
or avoidance, though such defence might
have been admissible heretofore, under
the general issue; that no matter of de-
fence, of which notice is not given, shall
be relied on; that the notice shall state
such defences separately, and if the same
are not stated clearly, or are double or in
sufficient, they be struck out on motion;
or he may plead specially his defences, in
which case he shall state the facts relied
on, truly and briefly as may be, and no
matter Of defence not pleaded shall be
shown in evidence.
In the case of West VS.. Taylor, 2 Cold.
101, it was held by this court that notice
of special matters of defense s'should be
as certain, sufficient and effective for all
purposes, as the special plea provided by
section 2,916." Under the English stat
utes of set off, which allowed notice of
cross demands, it was held that the notice
should be almost as certain as DECLARE
ton. l Chit Pl 575, Marg l Sew. N. P.
1876, note 102, 4th Am. Ed. A similar
practice prevailed under our statute of
set off of 1856 chap. 4, section 7, Car
and Mic. And, in this case, we are of
opinion that the matter of justification
relied upon, in the notice, is effectively
stated, in this--that it does not aver what
articles were taken by the defendant, or
SO describe the authority under which he
acted, as to inform the plaintiff of the
real nature of the defense; and it was
error in the court below to overrule the
motion to strike out the notice for INSULT
cheney.
2. The court erred in permitting wit
nesses to prove the SO called ''disloyalty"
of the plaintiff by reputation, the evil
dence having been objected to when CT
fered. 1t has long been well settled that
the hearsay evidence of reputation is adj
Missile only in questions of boundary,
pedigree and the like, and that in civil
suits, used, for the purpose of wagiDg or
carrying on war. Section 2 authorizes
the property seized OF collected by the
agents, TO be appropriated TO public use,
on due appraisement and certificate, or to
be forwarded to any place of sale, wi hin
the '1oyal" States, as the public interest
may require. The right to receive and
collect abandoned property does not under
said act, depend upon the character, or
the 'loyalty," or ''disloyalty" of the
owner; but, in section 5, it is provided
that "any person claiming to have been
the owner of any such abandoned
or captured property may, at any
time within two years after the sup
preston of the rebellion, prefer his
claim to the proceeds thereof in
the court of claims, and on proof
the satisfaction of said court of his own
ershIp of said property, of his right to
the proceeds thereof, and that he has
neve- given any aid or comfort to the
present rebellion, ''to receive the residue
6 ,oI IoO faf Il
tons" specified in said section. In his
circular of July 8, 1868, TO the supervis-
ing special agents, the Secretary of the
Treasury discriminates between abandon
ed, captured, commercial and cOnfsCable
property, and defines the first to be of two
LIST, that which has been
deserted by the owners; and I'd that which
has been voluntarily abandoned by them
TO the civil or military authorities Of the
United States The same definition is re-
peated in the Regulations" prescribed
by the Secretary of the Treasury, for the
government of the several special agents
and agency aids, appointed in pursuance
of the said act of 18th of March,
1868, and promulgated on the 18th
of September, 1868, page 81, and
in his Rules and Regulations concerning
intercourse, and abandoned,
and confscable property, page
81, promulgated July 80, 1864. And in
the second and third sections of the Act
July 2, 1864, it is declared that
property, real or personal, shall be re-
garded as abandoned when the lawful
owner thereof shall be voluntarily absent
therefrom and engaged, either in arms or
otherwise in aiding or encouraging the
rebellion. The said third section de-
ciares, among other things, that the act
March II, 1853, is hereby ex-
tended, so as to include the descriptions
of property mentioned il the act ap-
proved July II, 1862, to suppress insur-
rection, etc, Is U. S. Stat. at large
376. And, 10y sec. Z, of the said last
named ac;, it is provided that the prop
erty, real and personal, which is subject
to cOnfiscatiOn, under sec. 6, shall be
subject to condemnation and sale by pro-
ceedings to be instituted in the district
courts of the United States, whenever
the same shall be found to have belonged
to person engaged in rebsllion, or who
has given aid or comfort thereto. The
evidence contained in the record does not
make out case of abandonment within
the meaning of either of these definitions.
1t does not show that the plaintiff was
engaged in rebellion, either in arms or
otherwise, or that she gave aid and com
fort to those who were so engaged; and,
although it does not clearly appear
whether her property was seized and sold
before or after the passage of the act of
July, 1854, yet as that act was passed
upon the same general subject and refers
to all the previous acts, it may be pro-
perly looked to for the purpose of ascer-
tanning the meaning of terms employed
in the prior act. And in no possible
sense of all, or either of said statutes,
can the plaintiff be regarded
as having abandoned her property,
if she left it in the care of another person
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