Title: William M. Evarts to John McAllister Schofield, 5 February 1869
Date: February 5, 1869
Source: Transcribed from digital images or a microfilm reproduction of the original item. For a description of the editorial rationale behind our treatment of the correspondence, see our statement of editorial policy.
Location: National Archives and Records Administration
Whitman Archive ID: nar.00765
Contributors to digital file: Elizabeth Lorang, Kevin McMullen, John Schwaninger, and Nima Najafi Kianfar
February 5, 1869.
Hon. J. M. Schofield,
Secretary of War.
I desire to call your attention to the case of Cyrus R. Crane, plt'ff. in error, against Hiram Walker, pending in the Supreme Court of the United States, on a writ of error to the Circuit Court for the District of Vermont. The defendant in the court below was a provost marshal and was sued for a trespass committed upon the plaintiff in his office at Rutland, in the state of Vermont, some time in the year 1864. He was defended in this action by the Dist. Attorney, under instructions from this office communicated at the request of the then Secretary of War. The jury rendered a verdict of One thousand dollars damages, and from the judgement entered thereon, the Dist. Attorney took the present writ of error.
I have carefully examined the record of this case, and find no reason to believe that I can successfully contend against the judgment of the Circuit Court. The charge of the Circuit Judge to the jury was a fair & impartial one. The only objection I could urge to this judgement would be a technical one based upon the provisions of Section 4 of the Act of March 3, 1863, which is at least a provision of doubtful constitutionality. I do not deem it expedient that the constitutional question should be raised at this time.
If your Department, however, should not regard it proper to pay this judgment, I should deem it my duty to give notice to the plaintiff in error, in order that he might employ counsel to argue the case in the Supreme Court. If I hear from you that this is a case in which the Department would desire to protect the defendant by payment of the judgment, I will ask the court, in view of the considerations just mentioned, to dismiss the writ of error. As I am under a promise to signify to the counsel on the other side, Mr. Senator Edmunds, on Monday next, whether the case is to be argued or not, I will be obliged if you will reply to this communication before that time
I have the honor to be
Wm M. Evarts,