Koonce v. . Davis

72 N.C. 218 | N.C. | 1875

This case is governed by the decision of this Court in Bryan v. Walker,64 N.C. 141. In that case the plaintiff recovered because the defendant failed to establish that the impressment was made under an urgent necessity for the public service, such as did not admit of delay, and where the civil authority would be too late in providing the means which the occasion called for. It is not the order of his superior that justifies a military officer in doing an unlawful act; and if the defendant had rested his case upon that proposition, he would have failed. But he went further, and the jury has found that there was a military necessity for the taking; and the facts set forth in the case fully warrant such a finding.

The impressment of the buggy by order of the defendant, in obedience to the command of Gen. Kirkland, being justified by the emergency, the evidence fails to bring home to the defendant any notice of the order of Gen. Hoke for its restoration to the plaintiff. He is therefore not affected by the disobedience and insubordination of others. The jury has found that the defendant had no notice of the countermanding order of Gen. Hoke, and that he did not refuse the buggy.

The charge of his Honor was correct in law; and this verdict of the jury in favor of the defendant, upon all the issues, conclude the parties.

There is no error.

PER CURIAM. Judgment affirmed.