66 Ky. 523 | Ky. Ct. App. | 1868
delivered the opinion oe the court :
The parties in this case are brothers-in law and neighbors, of good character, residing in Breathitt county, in this State, and, during the late civil war, they espoused opposite sides of the contest, Wilson- advocating the repression of the rebellion, and Haddix sympathizing with it,-while he professed devotion to the Constitution and the Union.
In the years 1862-3-4, Breathitt county was overrun by Confederate forces and infested by guerrillas, who proscribed the adherents of the opposite party, and committed indiscriminate depredations on them and spoliations of their property.
In May, 1864, Haddix, holding two promissory notes on Wilson — one for‘six hundred dollars and the other for
Wilson pleaded the tender and also a set-off for the six hundred dollars, of which, shortly after the tender ■ of them, he had been robbed by guerrillas, at the instance and with the co-operation of Haddix, as charged ,in the answer; and also one hundred and thirty dollars and two horses taken from him, about three months afterwards, in the same way. The jury set off the aggregate of seven hundred and thirty dollars thus pleaded, and rendered a verdict in favor of Haddix for the balance ; and the court rendering judgment accordingly, each party appealed.
The tender is altogether unavailing. Had there been no other objection to it, the amount offered was insufficient, and even that was not re-tendered in court.
On the question of the alleged robbery, and of the agency of Haddix in it, there is a large mass of conflicting testimony, most of which was irrelevant; and, whatever we might think of the preponderance of probability, the scales are too nearly equipoised to allow this court to set aside the verdict as unsustained by the evidence, except, perhaps, as to the one hundred and thirty dollars last taken.
• But, on another ground, the verdict cannot stand; although, as adjudged in Eversole vs. (Moore, p. 49), the trespass might be waived, and the value of the property taken might be recouped by a set-off against the notes, or recovered by indebitatus assumpsit, yet, as this court judicially knows, the verdict and .judgment set off much
The third section excepts from the operation of the first section cases of unlawful taking, under color of military authority, where the thing so taken is retained by the captor or some person under him, or has ’been converted to his own use; and, in all such cases only, this section repeals so much of the former act in Myers’ Supplement as allows double damages. Guerrillas, and others not acting under the color of military authority,
But the “ amnesty act” not being applicable to this case, Wilson, if he has a right to recover of Haddix, is entitled to double damages; and, consequently, the circuit'court ei'red in refusing so to instruct the jury; but there being no assessment of the value of the paper currency, and this court having no judicial knowledge of it, there could have been no valid judgment of duplication of it; and the record does not enable us to determine whether a duplication of the value of the paper for which the evidence may have authorized the verdict against Haddix, would have been equal to the amount of the verdict.
Consequently, there is apparent error to the prejudice of each party; and the judgment is therefore reversed on each appeal, and the cause remanded for a new trial, without any judgment for costs in this court to either party.