
    McCarty’s Admr. v. Winn.
    Liability for Taking Property Under Military Order.
    An order for confiscation of property must be produced as a defense, if sought to be available as justification.
    APPEAL EROM PENDLETON CIRCUIT COURT.
    June 14, 1866.
   Opinion op the Court by

Judge Robertson :

The appellant, as administrator of William H. McCarty, deceased, sued the appellee, Thomas Winn, for forcibly taking from the intestate and converting to his own use a bay horse.

The answer, admitting that the appellee took the horse to Covington, alleged, as a justification, that a squad of Federal soldiers had taken it from the owner and ordered him, then a resident citizen of Pendleton county, Kentucky, to carry it to Covington, Ky., and deliver it to Col. Hays, of the Federal army, which, in obedience to that order, he did. On that issue, without any proof of the alleged order, but on proof that the intestate loaned the horse for scouting one night, the Circuit Court instructed the jury to find for the defendant; and accordingly verdict and judgment were rendered in bar of the action.

Had the order been proved there would have been great difficulty in sustaining the defense, and especially without other proof. But the failure to prove any order or rightful- authority left the appellee without any pretense of justification for the admitted conversion, and, therefore, the instruction was erroneous.

Wherefore, the judgment is reversed and the cause remanded for a new trial.  