Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-06-13


"a 81 erATE OF KEETucKx,
OUR OF APPEALS, April %, 1861.
L. E. Baker, appellant, VI. Thomas d.
Wright. etc, appellees. Appeal fram
Warren circuit court.
The court being sufficiently advised,
delivered the following opinion herein,
to,wit:
While, in tAe fall of the year 1861,
Generals Johnston, Hardee and Bucknsr,
with their large Confederate army, ocou-
pied Bowling Green, and maintained
military supremacy, and, under its aus
piees, provisional civil government also
ever that portion Of Kentucky, they for
titled Bakers Hill," overlooking the
town, and on which the appellant, with
his family, then resided.
In the construction and subsequent oe-
cnpaney of these Notifications, there was
much devastation Of houses, fences, tim
Der and fruit and ornamental trees,
greatly to the damage Of the owner.
Either yielding to inevitable necessity,
or satisfied with Gen. Buckner's assuT-
ane that Rl resulting damages4should
be assessed and paid, the party apparently
acquiesced.
Afterwards three commissioners, one
of whom was chosen by the appellant,
who seemed satisfied with the other two
also, assessed the damages at $500, but
whether the award was ever satisfied is
a question not clearly solved either way.
After that army had evacuated Bowl
ing Green and left the state, Baker, de-
nying that he had ever received any p0r-
ton Of the amount awarded TO him,
brought this action of trespass and con-
Il unfpua~ arofraaNH Nhn unz.1Fo.r all a,V
cOmbatant citizens, charging them with
aiding the army, by the labor Of their
slaves and otherwise, in the s~pOliations
complained of.
Each of the defendants NOW appel
lees) filed IN answer, denying the inn
puted conspiracy, and alleging that all
the aid which was furnished was extract
ed by what they understood to be a mill
itary requisition, and by q telief that a
failure to furnish any supplies OF labor,
etc, would be followed by impressment
and perhaps imprisonment.
And all the testimony, fairly consid-
cred, authorized the jury to decide the
verdict for the defendants, was there
fore authorized by the evidence, and con-
sequently the judgment upon it in bar Of
the action must stand, unless there was
some essential error in giving or refusing
instructions on the trial.
The occupation of Bowling Green and
the surrounding country by a Confederate
army and the installation of a temporary
civil government render its military
cover suspended, coeXtensiye with their
potential range, the government and
laws Of Kentucky, and not only COM
PEELED, but legalized submission to the
authority, however spurious, of the de
fdctO power. During the prevalence of
that power, to which the appellee actu-
ally swore fealty, the allegiance Of
the appellees to Kentucky, who failed to
protect them as her citizens, was sus-
pended and merged in their constrained
allegiance to the actual government, pro
H0c rice.
If the acts complained of in this suit
were technically belligerent, the appel
lees MAJ have been excUsable, and if
there be legal responsibility anywhere
for the damages, it would rest solely on
those whose will controlled their acts,
and who, even if their acts were truly
belligerent, might be liable or Gen. Buck
ner's contract, or, not being belligerent,
as between parties, then under the same
dc fGctO government, they might be la
BILE on the principle hat every govern
ment should pay its " citizens or sub
jects for private property appropriated to
public use.
However all this may be, the appellees,
according to the deductions which tina
Jury were authorized to make, and seem
to have made, should not be held respon-
sible for the damages.
LIST. Because the agency was invOiun-
tary.
%. Because they have a right TO be-
lieve that the appellant had, for cOnven-
tional compensation, sanctioned what
was done and waived all pretenGs Of right
TO complain Of them aud third, because
though the probability rather prepon-
derates against the conclusion, supported
by one witness and the appellant, and
the appellant had recovered the whole
amount awarded to him for his claim to
damages, yet the jury might reasonably
have found, as perhaps they did, that he
had been thus fully satisfied.
Tested by the facts and principles here
in recognized, the instructions given on
both sides were Substantially risbt and
those reA,sed TO the appellant we're sub
stahtiahy wrong.
And finding no available error to the
appellants prejudice rs either giving or
Withholding instructions, the verdict and
Judgment should stand.
Wherefore the Judgment is affirmed,
A copy: attest.