On writ of error to Talladega Circuit court.

Trover, tried before Shortridge, J.

The plaintiff declared against the defendant, in an action of trover; for that plaintiff, on the first day of September, in the year one thousand eight hundred and thirty-six, was possessed of a certain dark bay horse, of the value of two hundred dollars, which he casually lost, and which afterwards came to the possession of • defendant by finding, who refused to deliver him to plaintiff, and disposed of him to his own use, &c.

To this declaration, the defendant pleaded not guilty, and also justified the taking of the horse, under an order from Major General Irwin, then' commanding the State troops in service.

On this state of the pleadings, issue was joined, and a verdict rendered fo.r the defendant.

To the proceedings below, plaintiff filed his bill .of ex--ceptions, which stated, that on the trial of the cause, it appeared in evidence, that defendant, in May, eighteen hundred and thirty-six, was appointed by Major General Irwin, commanding the State troops then in service, to suppress the Creek insurrection, to carry necessary de-spatches, in relation to said service, from Irwinton, Barbour county, to the Governor, then at Montgomery, Alabama. That it was necessary to the public service, that the despatch should be conveyed, and that with the utmost celerity; and to that end, said General Irwin had caused to be given to said defendant, written authority to press fresh horses by the way, as often as his horse failed: — That on the way to Montgomery, conveying said despatch, defendant’s horse failed at plaintiff’s house, and the horse sued for was taken by defendant without plaintiff’s consent, under the authority, and for the purpose aforesaid. At the time of taking said horse, defendant left with plaintiff a receipt for said horse, certifying that the same was taken for said service, and was appraised at one hundred and seventy-five dollars. It was further in evidence, that defendant, a short time af-terwards, passed through plaintiff’s neighborhood, leading the same horse, and riding another: — that defendant took plaintiff’s horse with him: that some time after that, plaintiff met defendant, and asked what had become of his horse: that defendant made some evasive reply, but concluded by saying plaintiff should be paid for his horse: — It was further proved, that defendant traded said horse off, and never returned him.

The court charged the jury, in case they believed the necessity of the times justified the authority under which defendant acted, then the taking, though only for the object stated, vested the right of property in the government, and complainant thereafter, could have no right of action against the agent taking, or any other person, in respect of the horse sued for: and that his only remedy was by application to the government, on the certificate for the appraised value: to all which, plaintiff excepted, &e.

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