s question arises upon the pleadings in this case, because even those writers who claim the existence of such a right, admit that it can only be exercised "where the necessity is urgent for the public service, such as will not admit of delay; and where the action of the civil authority would be too late in providing the means which the occasion calls for. It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified" [13 Howard, P. 134. Paley, ch. XL, p. 83.] The evidence in this care does not show the existence of any such "emergency," but on the contrary, in my opinion, it proves that it did not exist.
The order of the Secretary of War to the Commissary General, authorizing him to impress subsistence, & c, was written on the 29th of December, 1862, and does not appear to have been caused by a want of food for the army, or an inability to purchase it at the market price, but because the Government could not buy at prices which
