Bryan v. Walker

• Decision Date: 31 January 1870
• Citation: Bryan v. Walker, 64 N.C. 141 (N.C. 1870)
• Court: North Carolina Supreme Court
• Parties: R. B. BRYAN v. JOHN WALKER and others.

64 N.C. 141

R. B. BRYAN

v.JOHN WALKER and others.

Supreme Court of North Carolina.

January Term, 1870.

*1 Military officers charged with a particular duty, may take private property for public use without making themselves trespassers, but in such cases, the necessity must be urgent, such as will not admit of delay, and where action upon the part of civil authority in providing for the want, will be too late.

The burden of proving such exigency, in case of suit, devolves upon the defendants:

Therefore, where all that the case showed, was, that a wagon and two mules of the plaintiff had been seized in January 1863, in Wilkes County, by the defendant commanding a detachment of Confederate troops, under the parol orders of a Brigadier-General, for the transportation service of the detachment; and nothing appeared as to the exigency of the necessity (if any) for such service; Held, that the defendants had not made out a defense.

The State “Amnesty Act” of 1866, does not include cases of civil remedy for private injuries; unless (sect. 4) when the injury occurred under some law, or authority purporting to be a law, of the State; which the parol orders here could not pretend to be.

Quere as to the power of the State to pass such an act in regard to civil remedies for injuries?

TROVER for two mules, tried before Mitchell, J., at Fall Term, 1869, of WILKES Court.

The facts were, that in 1863, Robert F. Hoke, then a Brigadier-General in the service of the Confederate States, commanding two regiments in Wilkes County, issued a parol order to the defendant, commanding a detachment of soldiers near the plaintiff's residence, to distrain, for the transportation service of such detachment, a wagon, and mules. Thereupon the defendant took the mules mentioned in the declaration.

By consent, a verdict was rendered for the plaintiff, for $350.00, subject to the opinion of the Court, &c. His Honor afterwards set aside the verdict, and gave judgment of non-suit.

The plaintiff thereupon appealed.

Boyden & Bailey for the appellant .

No Counsel, contra .

SETTLE, J.

*2 This is an action of trover for the conversion of two mules.

The defense relied upon, arises out of the following facts: In 1863, Robt. F. Hoke, Brig. Gen'l., in the service of the Confederate Government, and commanding two regiments in that service in Wilkes County, by parol, issued an order to an officer, commanding a detachment of his soldiers, in the vicinity of plaintiff's plantation, to distrain, for the transportation service of his detachment, a wagon and two mules. It is admitted that the mules were taken in pursuance of said order; upon the trial, a verdict was returned, by consent, in favor of the plaintiff, subject to the opinion of the Court on the question of law reserved; and his Honor being of opinion that the order of Gen'l. Hoke was a sufficient justification for the conversion, set aside the verdict, and gave judgment for the defendant. None of the evidence accompanies the statement of the case sent to this Court; we simply have the verdict of the jury establishing the fact of the conversion, and the order of Gen'l. Hoke, as the defense.

The case presents no question as between the rightful government, and its citizens in rebellion; and we are therefore relieved from the consideration of the delicate and embarrassing questions growing out of cases where the owner has done something by which he has forfeited his rights.

Nothing appears, save the fact that the defendants, who were Confederate soldiers, operating in North Carolina, a State then subject to the Confederate authority, took the private property of the plaintiff without compensation, in Wilkes County, for the transportation service of General Hoke's detachment. Admitting the right of a military officer in a case of extreme necessity, for the safety of the government, or the army, to take private property for the public service; they have here shown no immediate pressing necessity, in which they were compelled to act promptly, having no time to acquire the property according to law. The burden of showing such necessity, rests upon the defendants.

As a matter of history, we know that the County of Wilkes was not the theatre of war. It was comparatively quiet, the forces of neither army occupied it in numbers, or for any length of time.

We are fortunate in having a decision of the Supreme Court of the United States directly in point, declaring the law, as it has always been held in England and in this country. In citing the case of Mitchell v. Harmony, 13 How. 115, we will remark that the opinion of the Court was delivered by Taney, C. J., before the minds of our people became confused by questions growing out of the late rebellion. The defendants certainly cannot claim to be in a better situation in respect to the private property of a citizen of North Carolina, than the officers and soldiers of the army of the United States were, in respect to the property of our citizens, when they invaded Mexico.

Mitchell was an officer of the army, and was sued in an action of trespass by Harmony, for seizing his property in the Mexican State of Chihuahua. Harmony was a trader, engaged in a business recognized and allowed by the United States Government.

*3 The declaration charged that the defendant seized and converted to his own use, the horses, mules, wagons, &c., of the plaintiff.

The defendant pleaded not guilty, and specially “that war existed at the time, between the United States and Mexico; that he was a Lieutenant Colonel, &c., forming a part of the military force of the United States, and under the command of Colonel A. W. Doniphan, and he justifies the taking, &c., under and in virtue of the order, to that...