Stafford v. Wmercer

• Decision Date: 31 January 1871
• Citation: 42 Ga. 556
• Parties: ROBERT STAFFORD, plaintiff in error. v. HUGH W.MERCER et al., defendants in error.
• Court: Georgia Supreme Court

42 Ga. 556

ROBERT STAFFORD, plaintiff in error. v. HUGH W.MERCER et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1871.)

Capture of Private Property by Confederate States officers. Trespass. Before Judge Schley. Chatham Superior Court. July, 1870.

Stafford brought trespass, vi et armis, against Mercer and Gue for the taking from his plantation certain cotton, corn and fodder, on January 2d, 1862. The defenses were the general issue, and that Mercer was a General, in the service of the Confederate States of America, at war with the United States of America; was ordered by his superior officers to take corn and fodder, for the use of the troops under his command, and to remove all property which might fall into the enemy's hands to a place of safety, and, pursuant to this order, had said cotton, which was on Cumberland Island, subject to capture by the United States forces, taken to Savannah, Georgia, as a place of safety, and stored, for Stafford, with Stafford's usual factor, whose clerk was said Gue. All which he claimed he had a right to do, under the laws of war; and that defendants were protected from any recovery, also, by an Act of the General Assembly of Georgia, approved 15th February, 1866, for the relief of Confederate States soldiers, for acts done under orders of their superiors. Thetaking, by certain Confederate officers, the value of the property, etc., was shown, by Stafford. For the defense, it *was shown that the taking was under and pursuant to orders from General Mercer; that it was necessary for the exigencies of the service, and to keep it out of the hands of the enemy; that the usual receipts were given therefor, and that the cotton was stored with plaintiff\'s usual factor, at Savannah, where he was notified that it would be left. It further appeared that this factor was absent, in the service; that Gue was his agent and clerk, and that Gue, after consulting the factor and the military authorities, sold it, because Savannah was threatened by United States forces, and placed the Confederate money gotten for it to plaintiff\'s credit, but that plaintiff got no notice of this sale, etc., communication with him being cut off till the end of the war. Plaintiff got nothing for any of said produce; he refused, at the time of seizure, to receive the usual government price for his corn and fodder.

The evidence being closed, the Court charged the jury as follows:

1. If the jury find from the evidence that the plaintiff consented to the removal of the property in question, then there was no trespass, and he cannot recover.

2. If there was a state of war existing between the United States and the Confederate States in 1862, when the property in question was taken and removed, and if General Mercer was an officer in the Confederate army, and as such officer ordered the removal and taking of said property by the command of a superior or higher officer of the Confederate States, as an act of war, then Mercer is protected, and is not a trespasser, and is not liable to respond in damages.

3. If the defendant Gue received the cotton as the clerk of John W. Anderson, who was the ordinary factor of Stafford, the plaintiff, (even though he knew the circumstances under which it was taken and removed,) still he is not liable as a trespasser in that event. If any one is liable under that state of facts it is John W. Anderson, the principal, and not Gue, the clerk and agent.

*Counsel for plaintiff then requested the Court to give the following charges:

1. That any unlawful interference with the private property of a citizen by another is a trespasser, and for such the law gives damages. (The Court so charged.)

2. In trespass all are principals, there are no accessories. And each is liable for the full amount of the damages accruing by virtue of the trespass; and to constitute one a trespasser it is not necessary that he should have done the act complained of personally, but all who are in any way aiding, assisting, advising, commanding orcountenancing it, are responsible as principals, as well as those who perpetrate the act. (The Court so charged.)

3. The Act of the Georgia Legislature, of February, 1866, for the relief of bona fide Confederate soldiers, which has been pleaded in this case by defendants is not law, was not when the plea was filed, the said Act being repugnant to the Constitution of the United States and the Constitution of Georgia, and that the jury cannot take said Act into the consideration of this case as law. The Court refused to give said charge, and stated that he would not charge upon the constitutionality of the Act of 1866, saying the second head of his charge would cover the case, and it was unnecessary to notice said Act. And, at this stage, the Court, (after refusing to charge as requested, and giving the intimation that the charge was unnecessary,) let the defendant's counsel strike the plea of defense under the said Statute of 1866, after the same had been argued upon to the jury and Court, both by counsel for plaintiff and defendants.

4. That the attempt on the part of the State of Georgia to withdraw from the Union was illegal, that the organization of the Confederate States into a Confederacy in hostility to the United States Government was illegal; that the laws passed by the State of Georgia, and those enacted by the Southern Confederacy, from the date of secession up to the termination of the late war were illegal and void. And if *the defendants did (by virtue of any of the above mentioned laws) any act to the plaintiff's property, which, under the Constitution of the United States and the laws pursuant thereto, amounted to a trespass, such authority being derived from an illegal power, and one in hostility to the government to which plaintiff owed allegiance, cannot justify the act and protect the defendants. That any order or command emanating from either the civil or military authorities of the Confederate States, commanding the defendants to do that which in the eye of the law is a trespass, will not protect them if they did the act. (The Court refused so to charge.)

If the taking of the plaintiff's property by these defendants was a trespass under the Constitution and laws of the United States, it makes no...