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Morehead v. Murray and Another.

and judgment was rendered against the defendant for said sum and costs.

On the trial, the defendants, having read in evidence an order to Miller, Swan & Co., signed by “Rockwell, agent,” for the trees and vines at specified prices, to be delivered to Murray, offered to read a memorandum on the back thereof, in pencil, not signed and partly erased, as follows: “If any of the trees and vines do not grow, then, in that event,”—the remaining part of the memorandum being unintelligible. The plaintiff objected to the introduction of this memorandum, but the court allowed it to be read, and also, over the plaintiff's objection, permitted the defendants to prove by Murray that the agent of Miller, Swan & Co. agreed to replace any trees and vines, delivered under the contract, which might not grow, with other trees and vines; that said memorandum was in the handwriting of Rockwell, the agent of Miller, Swan & Co. and was made by said Rockwell as such agent immediately after an order for the trees and vines, signed by Murray and Rockwell, was given to said Rockwell; and that said memorandum was delivered by Rockwell to Murray as a statement of what the agreement was as to replacing trees and vines which did not grow.

One Hilderman testified, over the plaintiff's objection, that a short time before the contract with Murray, he, the witness, gave an order to Miller, Swan & Co., through their agent, Rockwell, for trees and vines, and that Rockwell said he expected to take an order from Murray for trees and vines on the same terms and conditions that he sold to witness; that the contract of Miller, Swan & Co. with witness was in writing, and its terms and conditions were, that the trees and vines were to be in good condition, and if any of them did not grow, Miller, Swan & Co. would replace them with other trees and vines.

One Anther testified, over the plaintiff's objection, that the trees and vines which be, the witness, received from

Morehead v. Murray and Another.

Miller, Swan & Co. about the same time that Murray received his, did not grow, but most of them died.

Ray, J.-There was no error in overruling the demurrer to the second paragraph of the answer. It denied that the trees and vines were of any value whatever.

There was no error in allowing parol evidence of the memorandum on the back of the order. It was not a contract, but a simple memorandum, and proper for the witness to use to refresh his memory, but it should not have been introduced in evidence as a paper. As there was nothing in it of substance, however, this error cannot work a reversal. As to the objection to the proof of an agreement to replace the trees which should not grow, as being in contradiction to the order for the trees, there is no force in it. The order was not a contract binding both parties, but simply an order, which required the person sending it to accept the articles ordered. An agreement to replace any defective trees would not conflict with this written direction,

The evidence of the witness Hilderman, as to the terms on which Rockwell sold trees to the defendant or to others, was not proper as proof of the contract in this case. It was not part of the res geste. Hynds v. Hays, 25 Ind. 31. The agency not being proved, it could not bind the principal. Nor was the evidence of the witness Anther, that his trees did not grow, admissible, standing alone. But all this evidence was proper as steps in proving the authority of the agent; it would have been made complete by showing the recognition by Miller, Swan & Co. of similar contracts.

As the court should have charged the jury what effect to give to all this evidence, and as the charges given are not presented by the bill of exceptions, we must presume in favor of the action of the court.

The judgment is affirmed, with costs.

W. B. Robinson, J. M. Boyle, J. C. Denny, and G. G. Reily, for appellant.

Teagarden v. Graham and Others.

TEAGARDEN v. GRAHAM AND OTHERS.

the dis

Arrest.Justification.— Military Order.-Evidence.—A sergeant of volunteers

in the army of the United States in the last war, having received a written order from the proper military authorities to arrest certain deserters, in this State, and any others of that class, and all persons who should interfere with such arrests, made the arrest of said deserters at night; and the party having them in charge, under command of said sergeant, was fired upon from a wood, not far from the residence of one A., who was treasurer of a treasonable organization, the object of which was the protection of deserters, and who bad been fined in the United States Court upon a plea of guilty to an indictment for barboring deserters. Upon the fire being returned, the assailants fled, and the soldiers, after proceeding a short distance, about three or four o'clock in the morning and before daylight, discovered A. crossing the road from the direction in which the firing had occurred, and halted and searched him, finding nothing but a part of a box of caps, though he subsequently stated that he dropped a revolver when he stopped. He seemed fatigued, and was "puffing and blowing." He was th

eupon arrested and secured with ropes by the soldiers under command of said sergeant, and taken by them beyond the county, to the military headquarters trict, where he was discharged by the provost marshal, after a short detention. Suit by A. for damages, against said sergeant and those under bis

command. Held, that the written order for the arrest of the deserters having been shown

to be lost, evidence of its contents was admissible. Held, also, that the defendants were justified.

APPEAL from the Vermillion Circuit Court.
Ray, J.—The complaint is as follows:

“The plaintiff complains of the defendants, and says that the said defendants with force and arms assaulted the said plaintiff, to wit, at the county of Fountain and State aforesaid, on or about the 28th of February, 1864, and then and there seized and laid hold of the said plaintiff, and then and there, with great force and violence, pulled and dragged about the said plaintiff, and then and there forced and compelled the said plaintiff to go off and from his said premises

, near to his own dwelling-house, in the county aforesaid, and forced and compelled him to go in and through the woods, in the night time, to a certain place in said county known as Steam Corners, and then and there tied and bound the

Teagarden v. Graham and Others.

said plaintiff with ropes, bandaging his arms behind him, the said plaintiff; and then and there the said defendants Barton W. Graham and Mitchell Conover, with force and arms, forced and compelled the said plaintiff to go from and out of said county, to the city of Lafayette, in the county of Tippecanoe, in the said State of Indiana, when and where he was kept and detained in prison, without any reasonable or probable cause whatever, for a long space of time, to wit, for the space of twenty-four hours next following, contrary to the law and customs of the State and against the will of the plaintiff, whereby the plaintiff was then and there not only greatly hurt, bruised, and wounded, but was also then and there greatly exposed and injured in his credit and in, to wit, in the sum of five thousand dollars; wherefore the plaintiff demands judgment for five thousand dollars and other relief.”

On the trial, there was proof that Graham was a sergeant in the 630 Regiment of Indiana Volunteers, in the service of the United States; that said Graham was sent home to recruit for his regiment in the field during the war, and was ordered to arrest deserters and all who should interfere with such arrests; that he made such an arrest at night, and while passing through a wood, not far from the plaintiff's residence, the party having the deserters in charge was fired upon from the woods, and upon returning the fire, the assailants fled; that, proceeding a short distance, the soldiers discovered the plaintiff crossing the road from the direction where the firing had occurred, to a neighbor's house; he was balted and searched, and nothing was found but a part of a box of caps, though a witness testified to the plaintiff's subsequent statement, as the witness remembered it, that he dropped a revolver when he stopped; that the plaintiff seemed to be fatigued, and he “was puffing and blowing." It was also testified, that the plaintiff was treasurer of a treasonable organization, whose object was the protection of deserters, and that plaintiff had been indicted in the United States Court, and had pleaded guilty to a charge of harboring

Teagarden v. Graham and Others.

deserters, and had been fined therefor. The time of his arrest was about three or four o'clock in the morning and before daylight. The defendant Graham stated, that he received a written order from the proper military authorities, directing him to arrest the deserters whom he had seized, and any others of that class, and also to arrest all persons attempting to interfere with such arrests. The plaintiff was fastened with ropes and taken to Lafayette, where he was discharged by the provost marshal, after a short detention.

There was an objection, on the trial, to the evidence of the contents of the order for the arrest of the deserters, but as the written order was shown to have been lost, the evidence was properly admitted.

There was a finding for the defendants.

The motion for a new trial is on the ground that the evidence does not sustain the verdict.

The law, as stated by Allen, in his work on the duties and liabilities of sheriff's, p. 61, is, that "if an innocent person is arrested upon suspicion by a private individual, such individual is excused if a felony was in fact committed, and there was reasonable ground to suspect the person arrested.” It was so held in Holley v. Mix, 3 Wend. 350. See, also, 1 Chit. Crim. Law, 15.

In this case there had been a felony committed in the presence of an officer in the service of the United States; and that officer was authorized by an order from his superior officer, who derived his authority from the President of the United States, as Commander in Chief of the army, to arrest any one interfering with the exercise of his authority and take him before the nearest military authority. The oflicer and those under his command were simply intending, in good faith, to obey this order; for there was evidence enough to show a strong probability that the plaintiff had so interfered.

By the fourth section of the act of March 30, 1863, U. S. Stat. at Large, vol. 12, p. 756, Congress has expressly recognized the binding force of such orders, under the au

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