Sparrow v. Grove

Grason, J., delivered the opinion of the Court. The appellant’s first exception was taken to the rejection of his first, second, third, fourth, and fifth prayers, and to the instruction given by the Court to the jury. It ■was contended by the counsel for the appellee, that the first prayer was objectionable, because it was calculated to mislead the jury, and that the second, third, and fourth were properly rejected, because they were liable to the same objection as the first, and also because there was no evidence, to support the theory upon which they were based, and further, because the instruction given by the Court, placed the appellant’s case before the jury as favorably as he was entitled to have it. ¥c cannot concur in these views. The Draft Association of Middletown District was formed for .the purpose of relieving that district from the draft, which had then been ordered, by furnishing substitutes for three years, and volunteers for one year, to fill the quota of the dis ²¹⁶ trict.

On the 2d day of February, 1865, the appellant, as treasurer of the association, and two other parties, were appointed a committee to procure volunteers for one year at $400 each, and the association passed a resolution that all persons who wished to volunteer or procure substitutes, should report to said committee at their office, on the 6th day of February. At the same meeting a resolution was adopted, “ that the citizens of Middletown District offer $400 to men who will procure substitutes for three years, or volunteer' for one year,” and it was proved that this' offer was a matter of public notoriety after the 2d day of February, 1865. The proof further shows that the appellee was at the’office of the committee on the 6th day ot February, and at that time refused to enlist. It was further proved that the committee, after putting in a certain number of substitutes, made a contract with responsible men to furnish substitutes to make up the quota of the district, and on the 17th day of February the committee published a notice in the “ Yalley Register,” a newspaper published in Middletown District, that the quota of the district was then filled.

It was further proved, that on the 21st day of February, at Frederick, the appellee called upon the committee and was informed by them that they had made a contract to have the quota of the district filled, and did not wish him to enlist to the credit of the district, and that if he did enlist, he would not be paid the bounty offered by the district association. He replied, “ Yery well,” and stated that if he could get into the service before the substitutes were put in, he could get the State and County 'bounties, whether he got the district bounty or not. At that time the State had offered a bounty of $300, and Frederick county a bounty of $200 for volunteers, neither of which had been offered when the appellee refused to enlist when requested by the committee on the 6th day of February. The language and • terms of the l'esolution, passed by ²¹⁷ the Draft Association of the district, furnish evidence tending to prove that the committee appointed by that association was clothed with the power and authority of filling the quota of the district, by receiving substitutes for three years and volunteers for one year.

That resolution required all persons, who might be desirous of furnishing substitutes or of volunteering, to report to the committee, at their office, on the 6th February; and if the appellee were told by the committee, before he enlisted, that they had made arrangements to fill the quota of the district, and that he would not receive the district bounty if he did then enlist, and he was induced to enlist, and did enlist, not by reason of the offer of the district bounty, but by the expectation of receiving the State and County bounties, he was not entitled to recover. Did the instruction of the Court place the case of the appellant before the jury as favorably as his third and fourth prayers asked,