Year: 1867

actlated by malice or any revengeful in


tent on the part of the defendant. So far


as the right of the plaintiff, to maintain


the action, as before said, the question sub


mitted for your consideration upon this
| point is, was the act done by the defen-
dant Ii SO, was it done without lawful or.
| iustiiable authority p t4 ~
Fourth Count-Then as to this fourth
count, in troVer, and conversion alone,


it deyolves upon the plaintiff to make
| ont his cause upon this count of proof
| that the property therein mentioned be-


longed to him, or was lawfully in his pos


session, and that the defendant unlawfully


took and converted the same, if be did, or
| caused it to be done, under this issue he
| would be liable for the value of the same


at the time of the conversion, or such parts
| thereof, if any so proved, and converted. Ii
the defendant caused Others under his cora-


mand, as it is termed, to take and exercise


unlawful ownership of this property, unau


thorized by law, this would be an illegal


taking and a conversion. The conversion
was complete the moment the property
was so taken this however, you must


determine from the proof, both positive


and eyidential - ~


1t is insisted by the counsel of the de-


fendant, and the court is asked to charge


you, that if you believe from the proof that


the defendant was an officer, General, in


the so-called Confederate army, and as


such, under orders from his superior Off


GERS in said army, to-wit: General Forrest


or General Bragg, caused the plaintiff to
be arrested and imprisoned for violating


the laws of war of the said Southern Gen.


federacy, he, the defendant, at the time,


being only subaltern officer, he, the de-


fendant, would not be liable. Also several


other instructions of the same import, as


far as the court can read and understand


them, going to exculpate the defendant, all


OF which the court refuses to charge, except


as before, and will now charge you, and in


lieu Of said instructions asked, the court


will say to you, that if, from the facts, you
should find that the defendant was known


or recognized as Rebel General under


Forrest, Bragg, or any one else, in rebel


lion against the government of the United


States, and as such, had command of what
they called the Post at Huntsville, Ala,


and as such General arrested, or caused to


be arrested, and imprisoned the plaintiff,


although directed to do so by General For


rest, General Bragg, or General anybody


else, in the Rebel army, such order or ar


rest was in violation of the laws of the


United States, null and void at least, no
justification or excuse; and if the defend


ant, in executing such orders, arrested and


imprisoned the pliantif, and took and


carried away or converted his goods, or


caused it to be done by the officers and


men under him, he is liable for all the


damages sustained in consequence thereof


All concerned in executing such orders


were trespassers and instruments of such


orders, and defendant being such an officer,


etc, instead of it being justification or


excuse, it is an aggravation, they being


engaged in an unauthorized and unholy


war.


But the mere fact that the defendant was


an officer in the Rebel army, and engaged


in an unlawful rebellion, aiding in carrying


on war against the government of the


United States, would not make him liable


or responsible for the acts of others en-
gagged IN the same war, or trespasses COM
mitted by others under his command, un-
less so ordered or commanded by him, or
aided or encouraged the commission thereof
Then to hold the defendant liable for the
trespass and conversion complained of, you
must be satisfied from the proof that it was
done by him in person, or by his orders or
command Then look to. the proof and see
how this h If he was not present, and did
not order, command or encourage the tres
pass and grievances complained of, he


would not be guilty, or if he could not help
| it, or it was done unbeknown to him, and
| he disapproved the acts when brought to
| his knowledge, and did not Tatify the same
or any part thereof, he would not be guilty,
and if the facts are this way, your verdict
| should be for the defendant But how all


this is you must determine by the proof.
| If, however, you should find the issue for
| the plaintiff then the remaining question
would be as to the damages, and this you


will ascertain by the principles announced
| to you by the court.


First-Under these principles, the plain
tiff would be entitled, first, to all reasonable


and necessary expenses, ifany proved or Oc-


casioned to him, in consequence of the
trespass of imprisonment or illegal arrest.
If you should so find in this, you may take
in consideration his necessary counsel fees,
as the same are declared for, also the value
of the goods SO wrongfnlly taken, destroyed


or converted by the defendant, or cause TO
| be 50 taken, destroyed or converted while
| the plaintiff was so imprisoned, as stated in
| the first count, or converted as stated in the
fourth count All such, if any, would be


the actual damages, as you may ascertain
| by the proof To this you may or may


not allow interest, as you may see proper.


.Second-Then for the arrest, imprison-


ment and trespass to the person as COM
| planned of, you may allow such damages as
you may in your answer think proper under
all the facts and circumstances. In this you
may look to the condition Of the parties at
the time. As before charged, yon, if the
defendant was a Rebel General, engaged in
an unlawful and unjustifable war against
the government of the United States, in-
stead Of this being justification or excuse
as insisted by his counsel it would be an ag-
gravation for which you may give exemplary
damages, or smart money as it is sometimes
called. To be engaged in an open war
against the government of the United
States, and then to arrest and imprison
citizen because he is not so engaged, or for
differing with him in opinion as to the re
bellion, or that the citizen was engaged in


a contraband trade as his counsel call it,
against said rebellion, is an aggrayation
instead of justification. 1t was not neces-
sary that the plaintiff should be actually in
| Jail but was he deprived and restrained of


his liberty, and while thus restrained NAL


treated, assaulted, etc. All this you may


look to in assessing the damages. The gues-


tion of such damages are alone for the jury.
All other instructions asked for are refused,


except as here charged. l am asked to
Withdraw certain evidence from you, that,
the evidence of Barrham, as to what Mr..
Cruise said when he took the goods. This
the court refuses to do. If the defenant or
dered or directed these goods to be taken
by this man, and he went in obedience TO
instructions from the defendant to do what


he said and done at that time, is part Of


the res gestS and is competent, but it would


not be competent as original evidence; but
if acting as commanded By defendant, then
it is competent, and therefore, l cannot


Withdraw it.


CROCkER'S SCHOOL,