48 Tenn. 208 | Tenn. | 1870
delivered the opinion of the Court.
This is an action of tort, brought by the plaintiff against the ten defendants named in the record, under the Code, § 2746, for the wrongful taking of one bureau, one press, one bedstead, one trunk, one side-saddle, and various other articles of personal property. The declaration was filed in accordance with form No. 18, § 2939. The defendants severally pleaded not guilty; and the defendant, William S. Eeynolds, in addition to the plea of not guilty, gave notice “to the plaintiff's attorney," that, on trial, he would insist:
1st. That he did not take the several articles of personal property mentioned in the declaration; and
2d. That whatever articles he did take, were taken into his possession by authority duly vested in him, as the special Assistant Agent of the Treasury Department of the United States, and to and for the use of the Government of the United States.
It appears from the record that, at April Term, 1867, a demurrer was sustained to the plea and notice of William S. Eeynolds, and leave granted to amend and to plead over; but no demurrer is set out. At the August Term, 1870, the plaintiff moved that the said notice of defense attached to the plea of William S. Eeynolds should be stricken out as insufficient, but the Court overruled the motion.
It further appears, that the plaintiff never took up arms against the United States; but there is some conflict in the testimony as to her political opinions. One witness states that the plaintiff had the reputation of being “disloyal;” another, that she was a “rebel by report,” that he saw her shout and clap her hands when ■Wheeler’s raid passed along in August, 1864, but did not know “what she clapped and shouted for.” On the contrary, three witnesses, one of whom lived with the plaintiff, state they are well acquainted with her,
It further appears, that the defendant, ¥m; S. Reynolds, claiming to have authority from the Agency Aid at Knoxville, Tennessee, of the the United States Treasury Department, to take possession of all abandoned rebel property in Anderson County, seized the property in controversy, and sold it at public sale, about the month of June, 1864; that he and one Keslin, conducted the sale; that his co-defendants became purchasers of the property; and that, on the day of sale, and before its removal, the plaintiff appeared in person and forbade the purchasers to remove the property, and stated that they would have to account for the property, or the value of it, “ some day,” and some of the ■purchasers, who are not sued, declined, in consequence, to remove the articles they bought at the sale. It is also stated by one witness, who is not contradicted, that when the plaintiff appeared on the day of sale, and claimed the property, she “asked the defendant, Reynolds, for his authority for selling her property, and Reynolds told her he would see her in hell before he would show her any authority, or any other rebel.”
These are the most material facts appearing in the record. Verdict and judgment were rendered for the defendants, and the plaintiff appealed in error to this Court. Various questions of law are presented by the record and in argument.
1. It is provided in the Code, §§ 2913-2917, that the defendant may enter a general denial of the plaintiff’s cause of action, equivalent to the general issue
In the case of West v. Tylor, 2 Cold., 101, it was held by this Court, that a notice of special matters of defense ‘‘should be as certain, sufficient and eflective, for all purposes, as the special plea provided by § 2916.”-Under the English statutes of set-off, which allowed notice of cross demands, it was held' that the notice should be almost as certain as a declaration; 1 Chit. Pl., 575, marg; 1 Selw. N. P., 136, note 102, 4th Am. ed. A similar practice prevailed under our statute of set-off of 1756, c. 4, s. 7, Car. & Nich. And in this case, we are of opinion that the matter of justification relied upon in the notice, is defectively 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 helow, to overrule the motion to strike out the notice for insufficiency.
2. The Court erred in permitting witnesses to prove
3d. On the supposition that the evidence was sufficient to establish the fact that William S. Reynolds was an assistant special agent of the Treasury Department, which is not by any means clear, as it rests, in part upon the hearsay evidence of a declaration made by the Secretary of the Treasury, we hold that his Honor, the Circuit Judge, erred in his instructions to the jury, as to what constituted abandoned rebel property. In section 1 of the Act of Congress, approved March 12, 1863, 12 U. S. Statutes at Large, /820, c. 120, the Secretary of the Treasury was authorized to appoint “a special agent or agents to receive and collect all abandoned or captured rebel property in any State or Territory of the United States, designated as in insurrection against the lawful Government of the United States, by the proclamation of the President, of July 1st, 1862,” with certain exceptions as to property used, or intended to be used for the purpose of waging or carrying on war. Section 2 authorizes
In his circular of July 3, 1863, to the Supervising Special Agents, the Secretary of the Treasury discriminates between abandoned, captured, commercial and confiscable property, and defines the first to be of two descriptious ; First, that which has been deserted by the owners; and Second, that which has been voluntarily abandoned by them to the civil or military authority of the United States. The same definition is repeated in the “Regulations” prescribed by athe Secretary of the Treasury 'for the government of the several special agents and agency aids, appointed in pursuance of the said Act of. 12th of March, 1863, and promulgated on the 11th of September, 1863, page 31, and in his Rules and Regulations concerning commercial intercourse, tand abandoned, captured
The evidence contained in the record does not make out a case of abandonment within the meaning of either of these definitions. It does not show that the plaintiff was engaged in rebellion, either in arms or otherwise, or that she gave aid and comfort 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, 1864, yet, as the Act was passed upon the same general subject, and refers to all the previous Acts, it may be properly looked to for the purpose of ascertaining the meaning' of terms employed in the prior Act. And in no pos
' There are other errors, both in the proceedings and in .the charge of the Circuit Court, which are not here considered, as in any event, the judgment in this case must be reversed, and a new trial awarded.
Upon the questions so elaborately and ably argued by the counsel for the plaintiff in error, as to the unconstitutionality of the Acts of Congress above referred to, and as to what constitutes aid and comfort, within' their true import and meaning, it is not deemed necessary to announce an opinion. Grave doubts have been expressed upon these topics, by some of the ablest legal minds, but as they involve a wide latitude of investigation, and the exigencies of this case do not require that they shall be considered, we have preferred simply to construe so much of the statutes as seems necessary •without expressing any opinion as to their constitutionality.
Let the judgment be reversed, and the cause remanded.