Knoxville weekly chronicle. [volume] (Knoxville, Tenn.) 1870-1875, 1870-10-26

pcdttl dCuS vi JeSpdsS, ulllcSN tJiuhll'ttd
during the time stated in the declaration
Ev $50, m. We are of opinion that the
trespa,s is sufficiently laid with contihuqR-
do, to lot in the evidence as 70 several tres.
passes, and that there is no error in the ac-
tiOn of the court below in refusing to limit
the proof to the first trespass but if this
view were erroneous, the objection to the
declaration as framed, is 50 highly technical
that it does not affect the merits and can
not, after verdict, prevail in this court,
see Code, "a 2S74, 4jl6.
While, in most cases, the political opin-
ions of the parties are foreign 10 the issue
Joined and inadmissibe as evidence, we are
not prepared to hold that, in case like this,
where the tresrass was committed by sol
diers and the connection with It OF the
plaintiff in error, depended upon evidence
purely crcumstancial, it was not legitimate
to prove the political relation Of the parties,
as part of the choice of circumstances es-
pecially, when those relations were proved
by the personal knowledge Of the witness,
and not by vague rumOrs in the nature of
proof to general character. But, althougl
we are of opinion that no error was commit
ted, in the court below, in the admission Of
testimony, we are thoroughly satisfied that
his onor the Circuit Judge. ought to
have granted new trial upon the evidence
presented in this record. The proof that
the plaintiff in error was rebel; that he
rode with rebl officers and soldiers, across
his own and, toa place tencampmeut com-
mon TO both armies that he pointed in a
direction which might indicate the land Of
the defendant in error, or Of other adjoining
proprietors that timber was cut off the
land Of defendant in error, withou5 cutting
eloF ,,f tho ,,lofptiH i,,o nd
that the D. ,perty of the former was taken
and that ofthe latter left, withoutoue word of
testimony TO show that these acts were done
by the advice, procurement consent, or
c0nnivancc, o, the plaintiff IN error. j SO
vague, indefinite and unsatisfactory that we
are constrained to hold there is no evidence
t, support the verdict The facts proved
do not in our view, create the slightest pre-
ponderance ofevidcnce aganS5 the plaintiff
in error, rs they might well exist in perfect
consistency with the idea of his innocence.
On the suppositiou that the rebel soldiers
knew chat the plaintiff in error was OF their
political faith and that the defendant was
not, lt was natural and in accordance with
the general usagas IN the late civil war. that
they should endclvor to DO him as little in
jury Il, possible aud that if loss and incon-
venience we're to ba sustained, they would
fdu-t AlltNt W ltllt lll]bll viz lltlGpll WIN
whom they differed rather thmupOuOue with
whom they agreed-upon their enemy in
preference TO their friend. Aud had il been
established by positive proof instead OF
vague conjecture that the plaintiff IN error
discovering that the soldiers were detcrmin-
ed to eucamp upon his own land, or that Of
the defendant in error, and ic0idd take the
timber and property of one or the other, in
formed them that he was a rebel and that
defendant in error was a Union man, and
actually requested them to take the proper-
ty Of the latter and to spare his own, we do
not regard it as to hold that he incurred the
slightest civil responsibility An old case
almost analogous, in the criminal law, cs.
tabllshes u precedent from which such Il
conclusion may without violence be drawn;
for, where two persons, being shipwreck-
ed have got on the same plank, but find
ing it not able to save them both, one Of
them thrusts the other from il and is drown
ed this homicide is excusable, through un-
avodable necessity, and upon the great
universal principle Of self-preservation,
which prompts every man to save his own
life, in preference to that Of anothers where
one of them must inevitably perish. "
Browns Legal Maxims, As Law Lib. 6 N,
Bla. Cum lS6 IN. But, if the law of
necessity, as applied to the saving of life, is
inapplicable to the preservation of property,
we hold, upon the facts of this case
and assuming that the jury were
warranted in presuming that the
timber was cut, and the other pro-
perty taken, upon the suggestion, or by
! the advice Of the plaintiff in error, that he
! cannot be held as a trespasser, unless it APP
pears that the act done by the party cOun
! selled or advised was unawful-a treSpaSs
and subjected him to civil liability. This
defence may be relied upon under the plea
of not guilty. 1t is not technical justii-
cation, but a defence growing out of the
testimony introduced by the plaintiff be-
low 1t is part of the transaction on which
his action is founded, and he could not be
surprised 10y the evidence. 1t falls within
the rule laid down in Greenl Ev, 94--
that If the act Of the defendant was done
! by,inevtable necessity as, if it be caused
! by ungovenable brute force, his horse runs
ming away with him without his fault; or,
if lighted squib is thrown upon him, and
to save himself he strikes it off IN a new
direction in these and the like cases, the
necessity may be shown, under the general
issue, i'm disproof Of the battery. In Da
Wis vs. McNees, S Hump. -i0-which was
an action of SANDER the defendant was
permitted to show, under tAe plea Of not
guilty, than the word proved were spoken
under suyL clrcums ,aucas tAat they were
NOT actlQlau.e and we A9.I iH ms P.
tla1 whether the pl9iuti l euos as 4