
    Childress vs. Yourie.
    'M'jseeasAK'CE, The performance in an improper manner, place or time, of an act which it was a party’s duty, contract or right to do, is a misfeasance. Chttbifs General Practice, 9.
    Sami-. Militia Drill, Togo through the exercises of the militia drill in the public squares and business resorts of towns and villages is a misfeasance.
    Same. Consequential Damages, The officer under whose command it is done is responsible for consequential damages; a3 if a team hitched to a wagon and standing in the usual resoits of business — taking fright at the exercises — -run away, whereby one of the horses is killed, the Captain is responsible for his value.
    Yourie sued Childress on the 9th of February, 1838, in the circuit court of Rutherford in case, and declared, that whereas the said James Yourie, heretofore, to wit, on the 8th day of January, 1838, at the county aforesaid, was the lawful owner, and in possession of a certain bay horse, of great value, to wit, of the value of one hundred and twenty-five dollars, which said horse, together with five other horses, also the property of the said James Yourie, was then and there hitched to, and was drawing the wagon of the said James Yourie: along and upon a certain common and public highway, to wit: along and upon the public square and streets of ábe town of Murfreesborough, the said horses and wagon .being controlled and driven by the servant of the said James Yourie, and the said John W. Childress,-then and there being the captain and commanding officer of a volunteer company of militia men, calling themselves by the name and style of the Rutherford Greys, who were then and there parading and mustering under the direction and command of the said John W. Childress, upon said public square and streets, in the view of, and within fifty paces of the said horses, so hitched to and drawing said wagon, ordered ■ and commanded said company, then and there being, and so under his command, to discharge and fire off the muskets and mustering arms which they then and there held in their hands, loaded and charged with powder and wadding, or with blank cartridges; and the said company then and there, in view of, and at the distance aforesaid from said horses and wagon, in obedience to the command so given, did discharge off the muskets and musteiing arms, held by them as aforesaid, and loaded and charged as aforesaid, with a great noise; which firing of said muskets and mustering arms, frightened and alarmed the said bay horse, of the said James Yourie, together with the other horses of the said James Yourie, then and there being hitched to, and drawing the wagon, and driven by the servant of the said James Yourie as aforesaid, and by means of which said firing said horses became ungovernable, and were caused to rumoff with said wagon with great speed and violence, and by means of which one of the fore legs of the said bay horse was broken, and he was then and there otherwise greatly bruised and injured, by being violently dragged upon the ground by the other horses so hitched to the wagon as aforesaid; and by means of which the said bay horse became, and was of nq vqlue to' the said. James Yourie, and in fact died of the wounds and injury so received, as aforesaid.
    The defendant pleaded not guilty; and the parties thereupon, at November Term, 1838, submitted to the court, his Honor Judge Rucks presiding, instead of Anderson Judge, the following agreed case.
    The defendant is commander, as captain, of a volunteer company, regularly organized under the laws of Tennessee, the officers commissioned as the law directs, and with arms drawn by the company from the Governor. The company, with the defendant as captain, were mustering in and near Murfreesborough on the 8th of January last: the muster on that day was in pursuance of a previous regular appointment under the constitution of the company. The public square of Murfreesborough was regularly designated by the company as the mustering ground. On the 8th of January the company met in the morning on the public square of said town, and marched to a grove, two or three hundred yards from the square, and drilled for some hours. The drum was beating, the fife playing, and the company firing in the grove. The company then started and went to the square, with fife playing and drum beating all the way from the grove to the square. When the company reached the square, the captain ordered the company to wheel to the right; which order would have taken the company immediately to the wagon of the plaintiff, which was standing on the north side of the square, with the horses hitched, under the care of a wagoner hired by plaintiff; but when the defendant saw the wagon he changed his order, and marched the company about mid-way of the square, on the east side from the wagon. The company halted at this place, and under the command of defendant, fired. The horses of plaintiff immediately after the firing, ran off with the wagon; and one of the horses broke his leg, and was killed by plaintiff. The wagoner of plaintiff had sufficient time, after the company reached the square, to hare unhitched the horses before the firing; but made no attempt to do so. The wagoner was told by some one to unhitch his horses, that the company were about to fire, and they would run away; but he did not. It is agreed, that beating the drum, playing the fife, and firing, is a part of the drill of a volunteer company, and that the beating of drums, playing of a fife, and the firing of guns, will most generally tend to the frightening of horses.
    January 31.
    
    February 4.
    His Honor gave judgment that the plaintiff recover of the defendant 105 dollars, the amount of damages agreed upon between the parties, costs, &c. The defendant appealed in error.
    Keeble for the plaintiff in error.
    Ready for the defendant.
   Reese, J.

delivered the opinion of the court.

Upon the case agreed in this record, we are of opinion that the circuit court pronounced a proper judgment.

The plaintiff is the captain of a volunteer company in the county of Rutherford, to whom public arms have been furnished. On the day mentioned in the case agreed, the company, under the command of their captain, were made to perform the usual military evolutions, and for three hours were instructed in the exercises of the drill in a grove near the town of Murfreesborougb.' This was very proper, and at that place the company ought to have been dismissed.

But the captain saw proper to march them, with drum beating, fife playing, and banner displayed, to the public square of the town of Murfreesborough; and when arrived there, caused them to discharge their guns, which frightened the horses of the plaintiff below, which were hitched to- his wagon, causing them to run away with it, whereby one of them was killed. This was a result very naturally consequent upon the conduct' of the officer, and very likely to ensue. Hi's conduct was" highly improper. A military parade upon the public square of a town, and the discharge of small arms, may endanger not only the property, but the life of persons, who have a right to be there in the ordinary pursuit of business.

.Note. Authorities. Cole vs. Fisher, 11 Mass. R. 137. "When the law autho-* rises an act, and nothing' is done but what is necessary to accomplish the actr those who perform it, ¿are not liable as trespassers. Williams vs. Amory, 14 Mass. R. 20; Callender vs. Marsh, 1 Pick. 418. But no man shall be excused of a trespass except it may be adjudged utterly without his fault, and that he committed no negligence to give occasion to the hurt. Weaver vs. Ward, Ho~

To muster and drill men is a lawful and laudable employment. It is the duty of the officer; but at the same time it must be so conducted, as not to produce injury and loss to others. It must be done in the proper manner, the proper place, and the proper time; not negligently, not wantonly, not so as to injure others. If officers, tempted to exhibit themselves and their troops, in the pride, pomp, and circumstance of mimic war, will invade the business resorts of towns and villages; and by unusual sights and sounds frighten the horses, and upset the carriages of their neighbors, they must answer for the consequences.

Let the judgment be affirmed.  