Fryer v. M'Rae

GOLDTHWAITE, J. — The plaintiff not having requested any instructions to be given to. the jury at the trial, as to the lawfulness of the authority under which the defendant seems to have acted, it will be unnecessary for the court to examine, whether any person can be deprived of his property by the order or direction of a military commander, without having a remedy in the courts of justice. It seems to have been conceded, that such a right exists, from the necessity of, the case; and it is not for us to decide so grave and so important a question, be [190] fore some individual shall complain that his rights have been invaded. . The doctrine contained in the charge given by the court, cannot be sustained in law. If it is admitted that in times of war and danger, the property of the citizen, may be seized and used for the benefit of the community, it does not follow, that he looses the right to reclaim it, after the necessity which induced its seizure has passed away. I-Ie may have a rightful demand against the government, if his property has been lawfully taken or destroyed in the public service, but his title to it can alone pass from him by his own act and consent; and until such consent is freely given, he is to be considered for all purposes as its owner, until time shall have divested his right of property. The facts of this case, as disclosed by the bill of exceptions, establish the conversion by the defendant beyond all question, if they are true; and his orders, admitting them to be legal, (as to which, it is unnecessary to express, at this time, any opinion,) afforded no justification or excuse for not returning the horse when demanded, still less for disposing of him for his own use. Let the judgment be reversed, and the cause remanded.