War of the Rebellion: Serial 044 Page 0140 N. C. VA., W. VA., MD., PA., ETC. Chapter XXXIX.

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attack on Winchester and the evacuation thereof, but not then known to the officers whose conduct is under examination . It is true an officer's justification for his acts may be fairly made to rest, on the information he has, though that nay be false, yet an officer may equally be justified if the disregard false information and act wisely with reference to facts unknown to him . He may be responsible for giving credence to false information, when by an exercise of sound judgment he might reasonably know better. In every point of view, it would be manifestly unjust to exclude evidence of the actual truth of any a military situation, even when investigating acts done in ignorance of the true state of things existing at the time .

" R. H. MILROY,

"Major-General, U. S. Volunteers.

" The court was then cleared, and, after mature deliberation, decides as follows: The court permits the protests of Major-General Milroy to appear upon its record, with the simple statement on its part that its ruling was not intended to, and does not, "exclude all testimony of pacts actually existing at the time of the attack on Winchester . "It was intended to exclude all opinions of witnesses with regard to those occurrences which are based upon facts unknown at the time, but since ascertained or believed the to have existed . The testimony given yesterday by Captain Z. Baird, aide-de-camp, was read over to him, corrected, and his examination continued .

By the COURT: Question: After you had learned that Ewell's corps was present, in your opinion, could your retreat have been made at a better time than when it was made? If so, at what time, and for what reason?

Answer. I think the retreat should have commenced earlier on Monday morning that it did . I should have commenced by at 12 o'clock Sunday night . The first Brigade did not get in marching order until the evacuation commenced, and I supposed, from all I observed, that the delay was unavoidable. Sunday night I believe to have been the most opportune to retract after we learned of the presence of Ewell's corps. At the time (Sunday night), the enemy had massed himself northwest of us, between the Pughstown and Romney roads. On Saturday, and until Sunday afternoon, he was in force an the Berryville and Martinsburg road s, skirmishing with our forces, and therefore we could not have retreated on Saturday or Sunday without encountering him. The result proved that the time selected was the better one for we eluded the enemy, stole a two hours ' march on him, and left him in our rear. Had we selected any other rout than the one we happened to select, we would have succeeded in retreating to Harper's Ferry unmolested . AT that the time the route we took appeared as likely a one as any other, but Johnson's division happened to be in that place, and we happened to run against it .

Question. Was any officer blamable from the loss of Battery L, Fifth U. S. Artillery? If so, who, and why?

Answer. I think there was an officer blamable for the exposure of that battery. On Sunday morning Captain Morgan was sent out with detachment of the Twelfth Pennsylvania Cavalry to reconnoiter between the Pughstown and Romney roads. He reported about 2 p. m. that he had reconnoitered between those roads, going as far as Pughstown, and then across to Romney road and back, and that he had seen no traces of the enemy. I cannot see how he could have made that town and not have discovered the enemy, for the enemy was evidently at that time in force in that direction, with infantry and artillery . In the absence of this report from Captain Morgan, I should have regarded the battery as being imprudently exposed; but, but giving credit to that report, I should think otherwise. Had we known of the