John v. Vannoy

• Decision Date: 31 January 1872
• Citation: 66 N.C. 145
• Court: North Carolina Supreme Court
• Parties: JOHN V. FRANKLIN v. W. W. VANNOY, et al.

66 N.C. 145

JOHN V. FRANKLIN

v.W. W. VANNOY, et al.

Supreme Court of North Carolina.

January Term, 1872.

1. After the rehabilitation of the State, parties who had been arrested as recusant conscripts, had a right of action, against their captors.

2. But such causes of action have been destroyed by virtue of the Amnesty Act of 1866.

3. The seizure of the property of a recusant conscript, at the time of his arrest, is a mere incident to the arrest, and a cause of action therefor, follows the fate of the principal cause, and is likewise, embraced by that Act.

4. The Amnesty Act, thus understood, is not liable to animadversion, as having the effect to divest “vested rights,” or otherwise infringe, any provision of the Constitution.

5. During the late rebellion, the Confederate States, and the States composing it, were to all intents and purposes, governments de facto, with reference to citizens who continued to reside within the Confederate lines, hence, the Confederate States and the acts of its Congress, and the Constitution of the State as then ordained, and the acts of its Legislature, constituted during the continuance of the rebellion, THE LAW OF THE LAND.

6. The scope and effect of the Amnesty Act was to recognize this principle.

7. The Amnesty Act is not only constitutional, but a wise, beneficent and remedial statute, and should be liberally construed, on the maxim privatum incommodum publico bono pensatur.

The cases of State v. Blackwood, Phil L., 240, and Black v. Jones, 64 N. C., 318, Cook v. Cook, Phil. L., 583, cited and approved, and the case of Bryan v. Walker, 64 N. C., 141, cited, criticised and distinguished.

This was an

action in the case commenced under the old system, and tried before His Honor, Judge Mitchell and a jury, at Fall Term 1871, of Iredell Superior Court. The action was brought for the value of a horse, saddle, bridle and pocket-knife.

The plaintiff declared in three counts:

1. In trover.

2. In case for failing to take due care, &c.

3. In trespass, joined under the statute.

It was in evidence, that the plaintiff having become liable during the late rebellion, to military service, reported to the proper enrolling officer, and was by him allowed to join a company, called “Adam's Company,” of cavalry, he furnishing his own horse, &c. It was also in evidence that this company were rambling through the country, evading their enforced service, and that a home-guard company, under the command of one Ellis, captured “Adam's company” as recusant conscripts, and among them the plaintiff, and they took also the plaintiff's horse, saddle, bridle and pocket-knife, and reported to the defendant Finley, who was enrolling officer at Wilkesboro, the captured party, their horses, accoutrements, &c., and that he caused them to be sent forward and reported to his superior officer, Major Burke, the district enrolling officer at Statesville, who caused the plaintiff to be sent on “to the front.” The plaintiff's horse was taken back, but it did not distinctly appear what had become of it, nor of the other articles. The defendants were engaged one way or another in the seizure of the plaintiff's property.

There was evidence of a demand for the property, and also of a sale of the horse by, or concurred in by, the defendant Finley.

The plaintiff requested, amongst other instructions, not necessary to be noticed, the following: “that even if the defendant Finley had authority to arrest the plaintiff, it was nevertheless his duty to take reasonable of the plaintiff's property, and if he failed to exercise due care in that regard, and in consequence thereof, the plaintiff lost said property, he is liable in this action for the value thereof.” And the same as to each of the other defendants. “That the defendant Finley had no authority to cause the plaintiff's property to be sent to Statesville, and if by reason of his order to that effect, as admitted by him in evidence, the plaintiff lost his property, he is liable for its value.” His Honor declined to give these instructions, and instructed the jury, that “if Adam's Company was a regular organization, under military rule, the conduct of the plaintiff had nothing to do with the case, but it the same was not a regular organization, not under military rule, but that they were evading their duty to their country, the capture was legal and regular.”

Under the charge of His Honor, a verdict was rendered for the defendants, and the plaintiff appealed.Fowle and Bailey for the appellant .

1. There was no law of the State or Confederate government, or authority purporting to be a law, which authorized the seizure of this property. Chap. 3 d, Act 1866-'67. Bryan v. Walker, 64 N. C., 141.

2. No military officer or subordinate can justify the doing, an illegal act, by producing the order of his superior officers. Ibid. Wilson v. Franklin, 63 N. C., 259. Black v. Jones, 64 N. C., 318. Smith v. Stewart, 21 La. Am., 67. Echols v. Stanton, 4 West Va., 574. Furguson v. Loar, 5 Bush., 689. Witherspoon v. Woodey, 5 Cold, 147.

1. Instruction first. (A.) When Finley took possession of the property, he was bound to take reasonble care of it.

Sheriff arrests a man on a horse.

(B.) When he directed the horse, &c., to be sent to Maj. Burke, it was a conversion.

Espinasse Nisi Prius, 581.

Duncombe v. Reeve, Cro. Eliz., Vol. 1, 783.

(C.) Having taken possession under a quasi legal warrant, he became a trespasser, ab initio.

Six Carpenter's Case.

Parrish v. Wilhelm, 63 N. C., 50.

Second instruction. The fact that plaintiff was evading military service in the Confederate army, does not act to create a forfeiture of his property.

Blackmer & McCorkle and Armfield for the appellees .

PEARSON, C. J.

At the end of the war, after the State was allowed to enjoy her rights as a member of the Union, and a rightful government was organized, every one who had during the war, been concerned in arresting and sending a recusant conscript to “the front,” was liable to indictment, for assault and battery, and was liable to be sued for the arrest and false imprisonment.

If indictments and civil actions had been instituted, for all of these wrongs and injuries, and others of like character, the Courts would have been oppressed with cases. The Judges would have been perplexed with new questions, growing out of the unnatural state of things caused by civil war. Some Judges holding, with His Honor in the Court below, that “recusant conscripts were evading their duty to their country,” others holding that the Confederate soldiers were wrong-doers, committing outrages upon the good citizens of the country, and to be treated in the view of the Courts of the rightful government, as violators, of the laws of their country. The result would have been innumerable feuds, so that the country could not have enjoyed, even a partial return to good order and good neighborship, for a generation to come.

Deeply impressed by these considerations, it was deemed wise by the General Assembly, in 1866, to pass what is known as “the Amnesty Act;” by it, a stop is put to all indictments, and by the 4th section, it is provided: “no person who may have been in the civil or military service of the State, or of the late Confederate States government, or in the service of the U. S. government, shall be held liable in any civil action for any act done in the discharge of any duties imposed upon him by any law or authority, purporting to be a law of the State or of the late Confederate States government.”

The first question is, are the defendants embraced by “the Amnesty Act” in regard to this cause of action? The verdict fixes the fact, that the plaintiff and those with whom he had associated himself, were recusant conscripts and deserters from the Confederate service, who had gone from the county of Surry, towards the State of Tennessee, (with an intent to evade military service under the Confederate States, and probably with an intent not to fight on either side,) as far as ten miles above Wilkesboro, whereupon Capt. Ellis, at the head of a Confederate company, with Vannoy and others as “home guards,” by the orders of the defendant, Finley, the enrolling officer, stationed at Wilkesboro, captured the plaintiff and his associates, together with their horses and accoutrements, and reported to Finley, who ordered the other defendants to take the men and their horses, &c., and report to Major Burke, who was in command at Statesville. From the instructions asked by the plaintiff, and the instructions given, we infer this was the last the defendants had to do with it; the plaintiff was ordered to...