
    *Eastern Lunatic Asylum v. Garrett.
    January Term, 1876,
    Richmond.
    I. Public Corporations— Liability for Taking Private Property without Compensation. — The Eastern Lunatic Asylum is a corporation having- charge of the asylum at Williamsburg. During the late war the United States forces took possession of Wil-liamsburg, and held it until the end of the war. Upon their approach to the city the directors and principal officers of the asylum left it, and did not return. In January 1865 Colonel W, who was in command tiiere, sent out a party some miles into the country, and took by force from the farm of G-, who had left his home, corn and bacon, which was sent to the asylum, and used for the support of the inmates. After the war G brought trover against the corporation to recover the value of the articles so taken and used. Held :
    I. Same — Same—Without Compensation. — By the laws of war such property could not be taken without compensation, for the purpose of feeding the inmates of the asylum,
    a. Same — Same—Same —Liability.—The property having been taken without lawful authority, G’s title to it was not divested, and it having been applied to the use of the asylum, he may recover its value from that corporation.
    3. Same — Same—Same—Same—Trover.—Trover is a proper remedy in the case.
    This was an action of trover in the Circuit court of James City county and the city of Williamsburg, brought in April 1873 by George W. Garrett against the Eastern Lunatic Asylum, to recover the value of certain corn and bacon, which had been taken in 186S by the military commander of the Federal forces, and applied to the support of the inmates of the Lunatic Asylum.
    When the cause came on for trial, the parties submitted *the case, both on the law and the facts, to the decision of the court. And the court having heard the evidence, rendered a judgment in favor of the plaintiff for the sum of $363, with interest from the 1st of May 186S. The defendant thereupon moved the court for a new trial, but the motion was overruled, and the defendant excepted. The court certified the evidence as follows:
    That in the year 1864 the plaintiff lived on the farm known as “Warhill, ” about six miles from Williamsburg. That in December of that year the plaintiff was arrested by the military forces of the United States, and was carried off by them and placed in confinement. That at the time plaintiff was so taken from his home he left there thirty-three barrels of corn, which he had measured up to itself, and which was worth then at least five dollars per barrel, and also some other corn which had not been measured up. That he also left three nine hundred pounds of salted pork, which was then worth twenty-two cents per pound, and he also left a lot of hogs. That the plaintiff did not return to his home until the last of April 1865. That during the late war the United States military forces occupied the city of Williamsburg', and extended their picket lines about one mile beyond said city. That, in 1863, one Dr. Crittet F. Watson came to the asylum as its superintendent, having been sent there by the Pierpoint government. That on his arrival he submitted the oath of allegiance to the United States government, to the officers then in charge of the asylum. That they refused to take said oath. That there was no board of directors for the asylum after the Federal forces took charge of Williamsburg. That the members of the board had left, and were scattered over the country. That said Watson left the *asylum before the end of the year 1863. That from April 1863, to the end of the war, the military authorities stationed at Williamsburg controlled the asylum; the officer in command exercised the chief control. That many of the subordinate officers of the institution, who were in office prior to April 1863, remained in office while Watson and the military had control, and this state of things continued until the close of the war. That while the military authorities had control they furnished the institution with supplies, but very often they sent parties out in the country and took supplies for the asylum from the citizens. That in January 1865 one Colonel West was in command at Williamsburg, and a party was sent out in the country under command of Captain Holmes. That this party went to “War-hill,” the residence of the plaintiff, and by force took from there all of his corn and salted pork, it requiring ten large four-hoi'se wagons to haul the same, one of which wagons and team belonged to the Eastern Eunatic Asylum. That the corn and pork was carried first to Fort Magruder, a military post near Williamsburg, and from there was sent by said Colonel West directly, and without unloading the wagons, to the asylum for its use, and that the said corn and pork was delivered to the asylum. That the plaintiff did not institute his suit at an earlier day because he did not know, until a short time before its institution, what had become of his corn and pork.
    Upon the application of the Eastern Eu-natic Asylum a writ of error and supersedeas was awarded by one of the judges of this court.
    C. Branch, for the appellant.
    R. H. Armistead, for the appellee.
    
      
       PubIic Corporations — Liability for Taxing Private Property without Compensation. — The principal case is cited in Dinwiddie County v. Stuart, 28 Gratt. 555, and also, in Maia v. Eastern Hospital, 97 Va. 516, 34 S. E. Rep. 617, where it is fully discussed and distinguished.
      TROVER AND CONVERSION.
      Trover — Definition. — Trover is defined to be “a form of action which lies to recover damages against one who has, without right, converted to his own use goods or personal chattels in which the plaintiff has a general or special property.” Bou-vier’s Law Diet. 1142.
      Conversion. — “Á conversion is any unauthorized dealing with the goods of another by one in possession, whereby the nature or quality of the goods is essentially altered, or by which one having the right of possession is deprived of all substantial use of the goods, permanently or temporarily.” 26 Am. & Eng. Enc. Law 714.
      Foundation for Action. — To maintain trover the plaintiff must show a conversion of personal property by the defendant, and that he had at the time of the conversion a general or special right of property in the thing converted, and also the possession or a right to the immediate possession thereof. Haines v. Cochrans, 26 W. Va. 719.
      Declaration — Statement of Price of Thing Converted. —In an action of trover and conversion, the declaration need not state the price of the thing converted. It is not the price which the plaintiff sues for, but damages for the conversion; and even where the price is laid, he may recover more or less, provided the damages do not exceed those laid in the declaration. Pearpoint v. Henry, 2 Wash. 192.
      Joinder of Counts. — In Spencer v. Pilcher, 8 Leigh 565, the declaration contained three counts, the first a common count in trover. Upon demurrer to such declaration it was held that, the second and third counts were in tort, and are' consequently well joined with the count in trover.
      Proof of Conversion. — In an action of trover a conversion maybe proved in three ways: first, by a tor-tious taking: second, by any use or appropriation to the use of the defendant indicating a claim of right in opposition of that of the plaintiff or owner; and third, by a refusal to deliver possession to the owner on demand. Haines v. Cochrans, 26 W. Va. 720: Arnold v. Kelly, 4 W. Va. 642.
      When Proof of Demand and Refusal Excused. — It was held in Newsum v. Newsum, 1 Leigh 86, 19 Am. Dec. 739, that proof of demand and refusal is never necessary in trover, where there is proof of an actual conversion.
      When Title in Neither Party. — In an action of trover when neither the plaintiff nor defendant have title to the property, if it is competent for the defendant to show title in a third party under whom he does not claim, to defeat the plaintiff’s action. Smoot v. Cook, 3 W. Va. 172.
      
        Parties. — In Lowry v. Mountjoy, 6 Call 55. It was field that tfie wife need not be joined with tfie husband in an action of trover for a slave belonging to her.
      Against Two Jointly and One Released. — In an action of trover and conversion against two, where defendants appear and file a joint plea of not guilty and issue is thereon joined, it is competent for the jury to acquit one of the defendants and find tfie other guilty and assess damages against him. Tracy v. Cloyd, 10 W. Va. 19.
      Against Bailee. — Tfie accidental loss of a fiired slave, occurring In an employment of tfie slave which tfie bailee fias no right to mate, amounts to such a wrongful conversion by the bailee, as will sustain an action of trover by the owner. Spencer v. Pilcher, 8 Leigh 567; Harvey v. Epes, 12 Gratt. 153.
      Against Vendor. — The assignee of a vendee of standing trees, having chosen and marked the trees, may maintain trover against the vendor for felling and converting them, although the vendor had no notice of the election. McCoy v. Herbert, 9 Leigh 548.
      By Tenant in Common against Co-Tenant. — Trover lies by one tenant in common of a personal chattel, against his co-tenant, for the appropriation of tfie chattel to his exclusive use, where the chattel Is of such a nature as to be necessarily destroyed by the use thereof. Lowe v. Miller, 3 Gratt. 205, 46 Am. Dec. 188.
      By Trustee. — A naked trustee of a chattel is entitled to recover. In trover, not only nominal damages, but the full value. Newsum v. Newsum. 1 Leigh 86, 18 Am. Dec. 739.
      By Buyer against Seiler. — In Haines v. Cochrans, 26 W. Va. 720, it was field tfiat the buyer of goods who has paid the full price could maintain au action of trover against the seller where the latter has failed to make delivery; but such action will not lie unless the bnyer proves that he has paid the full price before the action is commenced.
      When Not Maintainable by Ward. — where timber-trees, growing on the inheritance of a ward, are thrown down by a tempest, or otherwise, they become personal property, and the guardian has a legal right to sell them as beirigperishable and of no value except as a subject of sale; in. such case the inlant cannot bring trover for them. Truss v. Old, 6 Rand. 556.
      Plaintiff Not ffaving Right to Possession. — K, the owner of a slave for life, sells him to M. by whom he is then sold to J, who gave him to his daughter, by whom he is taken out of the state, upon the death of K, the owners of the remainder in the slave bring trover against M to recover the value of the slave. Held, the plaintiff not having had the right to the possession of the slave at the time M sold him, cannot maintain this action against M. Philips v. Martiney, 10 Gratt. 333.
      Against Personal Representative. — It was held in Ferrill v. Brewis, 25 Gratt. 765, that trover may be sustained against a personal representative as such, though the goods never came into his hands.
      If an administrator sell a chattel, whereof his intestate died possessed, but which in truth belonged ■ of right to another, and apply the proceeds to payment of his intestate's debts in due course of administration, without any notice of the right or claim of the true owner, he is personally liable to the true I owner for the value in trover brought by the owner against Mm. Newsum v. Newsum, 1 Leigh 86, 19 Am. Dec. 739.
      By Owner of Lost Certificate against Bona Fide Purchaser. — In wilson v. Rucker, 1 Call 500, a nonnegotiable certificate of indebtedness was lost, and afterwards sold to a bona Me purchaser, without notice. Held, the original owner may maintain trover for it against the innocent vendee.
      Liability of Principal for Conversion by Agent. — In East. Lun. Asylum v. Garrett, 27 Gratt. 174, it was held that in all cases a destruction of the chattel is an act of conversion; that when there has been an act of conversion by an agent and the principal ratifies such act, the latter is estopped to deny the authority of the agent; and that for such conversion trover is the proper remedy.
      Judgment in Action of Trover Bar to Action of Trespass. — In Hite v. Long, 6 Rand. 457, the- plaintiff brought an action of trover for the conversion of his horse, and there was a judgment in favor of the defendant. Held, such j udgment is a bar to an action of trespass by the plaintiff for the taking of the same horse.
      Evidence. — In an action of trover by R.’against B., for goods which had been lent by B. to the wife of C., and afterwards conveyed by C. toR., the wife of C. is a competent witness. Baring v. Reeder, 1 Hen. & M. 154.
      Proof of Title — Possession as Evidence. — Possession of personal property is prima facie evidence of title, and therefore if the defendant in an action of trover had possession of personal property after the plaintiff had possession thereof, such possession is sufficient evidence of title to sustain his defense until the plaintiff should prove title. Smoot v. Cook, 3 W. Va. 172; Haines v. Cochrans, 26 W. Va. 719.
      Measure of Damages. — The measure of damages, in an action of trover for the conversion of personal property, is the fair value of the property at the time of the conversion, and is a question for the jury. Arnold v. Kelly, 4 W. Va. 642.
      Effect of Judgment for Plaintiff. — A judgment against the defendant, for the full value of the property converted, vests the title to it in him, unless the property has been returned uninjured and unimpaired in value, in which event the plaintiff can only recover damages for its detention. Arnold v. Kelly, 4 W. Va. 642.
      Where Property Taken and Returned. — The action of trover may be maintained in the case of an unlawful taking or intermeddling with personal property, against thewishes of the owner, although the property may have been returned to him before the institution of his suit. Arnold v. Kelly, 4 W. Va. 642.
    
   ^Staples, J.

This is an action of trover, brought by Gporge W. Garrett against the Eastern Eunatic Asylum, in the Circuit court of James City county. Upon the trial at the April term 1874, the parties waiving a jury, judgment was rendered for the plaintiff. The defendant moved for a new trial, which was overruled. Thereupon the defendant excepted and the court certified the evidence.

This evidence, so far as it is material to the present purpose, shows that from the beginning of the year 1863 to the close of the war, the federal troops stationed at Williamsburg controlled the asylum there, the officer in command exercising chief command.

Previous to this time, a superintendent appointed by the Pierpoint government had the management for a brief period. There was no board of directors, the members having left the community, and were scat-: tered over the country. Many of the subordinate officers, however, remained at the asylum in discharge of their duties. During the time the military had the control, they furnished the institution with supplies,' often sending parties into the country and taking provisions form the citizens. In January 186S, a party of Federal soldiers was sent out under the command of a captain, upon an expedition of the kind. They went to the residence of the plaintiff, who was absent, and bv force took all his corn and salted pork, sufficient to fill ten large four-horse wagons, one of which belonged to the asylum. The wagons were first driven to Fort Magruder, a military post near Williamsburg, and from that place, without being unloaded, were sent by the commanding officer directly to the asylum, where the provisions were left for the use of the inmates.

Upon this state of facts we are called upon to determine * whether the asylum can be held liable for the value of the plaintiff’s property. No right-thinking man will question the equity of the claim asserted. The plaintiff ought to be paid, unless there is some very positive, direct, legal impediment in the way of his recovery.

The ground taken by the defendant is, that’ the Federal commander had by the laws of war the right to take the plaintiff’s property; and the mere fact that the property was subsequently appropriated to the use of the asylum, instead of the Federal troops, cannot impose any legal liability upon the asylum to account for its value. In other words, the goods became, by the capture, the property of the United States government, and the plaintiff had no longer any claim to them as against any person whatever.

In considering this argument, it is proper to enquire verv briefly, what is the usage of nations engaged in war with regard to the capture of movable property on land. The general rule, well settled by the humanity and policy of modern times, is to abstain from taking such property without making - compensation, unless in special cases declared by the necessary operations of war. The exceptions are, first, seizure by Way of penalty for militarv offences; second, property taken on the field of battle, or in storming a fortress or town, which is usually termed booty; and, third, forced contributions or levies for the support of the invading army, or as an indemnity for the expense of maintaining order and affording protection to the inhabitants.

Another exception to the rule is said to be found in the peculiar nature of the property which is the subject of capture. If the hostile power has an interest in the property which is available to him for the purposes *of war, that fact makes it prima facie liable to capture. 1 Kent Com. 112; Dana’s Wheat. 256, note 171; Halleck 457.

In the late war between the northern and southern sections cotton was regarded as a subject of foreign and domestic commerce, and as one of the main sources of war relied upon by. the Confederate authorities for the purchase of arms and the preservation and extension of the public credit. It was therefore held in the federal- courts to be a lawful subject of capture. The decision of the Supreme Court of the United States in Mrs. Alexander’s cotton, 2 Wall. U. S. R. 401, was placed avowedly upon this ground and this alone. See also Coolidge v. Guthrie, decided by Mr. Justice Swayne in the United States Circuit Court for the northern district of Ohio, 8 Amer. Law Reg. N. S. page 22.

In this last case the cotton had been taken from the farm of General Pillow' and sold by General Curtis of the United States army. In an action against the purchaser, the de-fence was placed wholly upon the ground that cotton was lawful prize of war: It was not asserted by any one, that it was competent for a federal officer to seize' and confiscate any and every species of movable property belonging to Southern citizens, and by such seizure divest the title of the true owner.

In 1780 an officer under the command of Lord Cornwallis, or Uord Raudon, took from a farmer in South Carolina negroes, horses, cattle and hogs, and under military orders had them taken to the British garrison at Camden. He was sued by the owner in 1784; and he pleaded the orders of his superiors, and further, that no part of the property was appropriated to his own use: but the court held that both his superior ^officers and himself were equally guilty as trespassers.

In the case of Clark v. Dick, decided in the Circuit court of the United States for the district of Missouri, reported in 9 Amer. Law Reg. N. S. 739, the defendant pleaded that at the time of the alleged trespass a state- of civil war existed, and martial law duly declared; that the alleged trespasses were compulsory assessments made by order of the commanding general of the army of the department of Missouri. It was held that these facts brought the case within the influence of the provision of the Missouri constitution exempting persons from all liability civil and criminal, for acts done during the war under the authority of the United States government and its officers. It was not pretended in that case, that the defendant was exempt by the laws of war from all liability. The sole reliance of the defence was the constitutional provision referred to. See also Lucas v. Bruce, 4 Amer. Law Reg. N. S. 95; Cummings v. Diggs’ adm’or, 1 Heiskill N. 67.

These cases were not decided by courts of the last resort; they are, therefore not cited as controlling authority. Nor do I mean to affirm that the doctrines they announce are in entire harmony with the laws of war as laid down by learned publicists and commentators. They, however, show the general repugnance of the courts to give any extension to this doctrine of military supremacy over the lives and property of citizens even in the time of actual hostilities.

Be this as it may, the laws of nations already stated, exempt property on land from seizure and confiscation, except it be such as is available to the enemy for purposes of war, or such as may become booty in special cases, when taken from enemies in the field or *in beseiged towns, or such as may be necessary to the actual operation of the invading army, and is taken by way of military contributions levied upon the inhabitants of the hostile territory.

In the present case, the seizure of the-plaintiff’s property cannot be justified upon either of the grounds mentioned. The only one of these which furnishes any semblance of warrant for the act, is that the goods were taken by way of military requisition or assessment. It will be observed, however, that they were not taken for the use of the army, or for the benefit of the United States government. It was not the intention of the officer to appropriate the property to either of these objects; nor was it taken by way of indemnity to the conqueror for expenses incurred in supporting the inhabitants. It is one thing to exercise a right of capture for the government, another, and a very different thing, to seize the property of one citizen merely for the purpose of transfer to another.

There is no doubt but that the federal commander at Williamsburg was influenced by motives of humanity, and to a great extent by actual necessity, in taking charge of the asylum, and in furnishing the inmates with the means of subsistence. The institution was left by the calamities of war without a board of directors, without a superintendent, and without the means of subsistence. In this condition of things the strongest considerations of humanity required the federal authorities to see‘that the unfortunate inmates were not left to starve, nor turned loose upon the country, to add to the horrors of the struggle. • But whatever may have been the necessities of the asylum, the military authorities were not authorized to relieve them by exactions and forced contributions levied upon the plaintiff. With equal propriety it might be ^claimed that the federal commander finding a citizen in want of a horse to cultivate his farm could seize the plaintiff’s, and appropriate it to that purpose, and thus divest the title.

In the case of Moran v. Smell, 5 West Va. R. 26, it appeared that a party of Confederate soldiers had gone into the county of Taylor and taken a number of horses belonging- to citizens of that county; thereupon a federal officer commanding a military post for the department - of West Virginia, ordered an equal number of horses to be taken from citizens who sympathized with the Confederate cause, and turned over to the persons whose horses had been taken by the Confederate soldiers. The plaintiff was one of those whose horse was seized by the order of the federal commander, and after the war he brought his action of trover against the party having the horse in possession under authority of the federal officer.

The Supreme court of West Virginia, a tribunal then certainly having but little sympathy with the Confederate cause, unanimously held that the act of the federal officer was illegal, and conferred no title upon the defendant. And yet it is easy to understand that the decision would probably have been very different if the officer had seized the horse for the use of the army, in the exercise of the right of capture. The plaintiff’s title being divested by the capture for lawful purposes in war, he could not have recovered against the defendant, no matter how the latter might have acquired possession.

In the present case it may be that the federal commander seized the plaintiff’s property by virtue of his authority and power as an officer; but it is perfectly clear that he was not exercising, or attempting td exercise, the right of capturing an enemy’s property for *purposes of war. That power he could exercise only for the benefit of his army or his government. In undertaking to seize and transfer the plaintiff’s property to the defendant, he transcended his authority and violated the laws and usages of war.

The most just and reasonable inference is, that he did not intend to determine anything affecting the right of property; that having taken the plaintiff's goods by sheer physical power for the use of the asylum, his purpose was that the rights of the parties should be finallv settled by the laws of that government to .which they belonged. The fact that the provisions were taken to the asylum without unloading — if it indicates anything at all — plainly shows that the pufjwse! was 'that these supplies must be understood as being designed exclusively for the asylum, and not for the benefit of the Federal government, its officers or agents.

We should hesitate long before we gave our sanction to an act which, if it was not robbery, was an arbitrary seizure of the plaintiff’s property without the shadow of a justification, either as an act of war or of peace. We should be still more cautious how we sanction the doctrine that any officer of ' an invading army may, at his good will and pleasure, divest and establish the transfer of titles from one citizen to another, upon vague and general notions of belligerent rights and powers.

There is another point of view in which this question deserves some consideration. At the time of this seizure, the Federal authorities were in the undisputed occupation of the city of Williamsburg, and had been for more than two years. Their dominion was absolute and unquestioned. Row in Mrs. Alexander’s cotton, 2 Wall. U. S. R. 15, it was insisted bv her counsel, *that her cotton was not liable to capture because the territory was not enemy 'territory. The Supreme court of the United States did not controvert the proposition of law; but they said the military occupation by the Federal troops was too limited, too incomplete, too brief and too precarious, to change the enemy relation created for the country and its inhabitant^, by three years of continuing rebellion', . interrupted at least, for a few weeks only, but immediately renewed and ever since maintained.

In the case before us, whatever may have been the effect of the long continued occupation of the region around Williamsburg by the federal forces — whether that territory did or did not cease to be enemy’s territory, according to the strict terms of war — still, the plaintiff not being under the jurisdiction and control of the Confederate government, and the property being also at the time, of seizure free from that control, and having so continued for years, was not in the predicament which made it the subject of capture. Both by its laws and proclamations the federal government had promised protection of persons and property to Southern citizens submitting to its control. If the officer had taken the plaintiff’s property assuredly for the use of his army without compensation, he would have violated his duties and no doubt his instructions. Much more did he transcend his authority in plundering the plaintiff for the benefit of the asylum, in taking a citizen’s goods to feed the state paupers. The language of the Supreme Court of the United States in Mitchell v. Harmony, 13 How. U. S. R. 115, is very applicable to such a case: And that is, that<a military officer cannot impress the private property of a citizen into the public service without compensation, except under the most urgent necessity, such as will *admit of no delay, and where the action of the civil authorities 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.

The only remaining question is whether an action of trover is the proper remedy in this case. The asylum is a corporation and as such may sue or be sued in trespass or trover. Yarborough v. Bank of England, 16 East’s R. 5. If a corporation obtain property which does not belong to it, its duty is to restore it, or if used to render an equivalent to the owner. It was the duty of the corporate authorities to supply the inmates with the means of subsistence. If they failed or were unable to do so, and the plaintiff’s property was taken for that purpose by one assuming to act for the asylum, and as its agent, and the goods have been actually used by the asylum, it is responsible for the value; and is estopped to deny the authority of the agent in the act of conversion. In all cases a destruction of the chattel is an act of conversion, for its effect is to deprive the owner entirely of his property.

It has been held in many cases, that where the law imposes an obligation on a corporation which it refuses or fails to discharge, it may be held liable civilly at the suit of a party who sustains damages in consequence of its refusal. And where the law makes paupers or lunatics a charge upon a corporation, it is bound to provide them a comfortable support. And it has been held in a number of cases that if the corporation will not discharge this duty, individuals may furnish the necessaries and look to the corporation for remuneration. Trustees of Cincinnati township &c. v. Ogden, 5 Ham. R. 23; Shreve v. Budd, 2 Halst. R. 431; *Seagraves v. City of Alton, 13 Illi. R. 366; Tom linson v. Bentall, 5 Barn. and Cress, 738. See also Argenti v. City of San Francisco, 16 Cal. R. 255, 282. And see case in 2 Rob. Prac. (New E.) 443-’4. Here the case is much stronger. If the asylum did not intend to adopt the act of the officer acting as superintendent and agent it ought to have restored the goods, or if that was impossible it was bound to render an equivalent in value.

Christian, J.

I cannot give my assent to the judgment of the court in this case.

In my opinion, upon plain principles of law, no legal liability can be fixed upon the corporation known as the “Eastern Eunatic Asylum,” for the value of the provisions taken by the military commander, and appropriated by him to the use of the lunatics in that asylum.

The action brought by the appellee (Garrett) is an action of trover and conversion. To maintain such an action two things are essential: First, The title to the property must be in the plaintiff; Second, The conversion by the defendant must be wrongful, or at least voluntary. In this case both of these essential elements are wanting.

First: As to the title. Garrett was divested of his title, by the regttlar impressment made by the order of the military officer in command at Williamsburg.

The record shows that when the Confederate army retired from the Peninsula, the city of Williamsburg was occupied by the Federal army, and the Eastern Eunatic Asylum, located in that city, was from that time under the exclusive control and protection of the Federal commander assigned to that military post by the Federal government. Both the superintendent *and directors of that institution had fled with the Confederate army. Indeed, all the officers of the institution, except perhaps the nurses and other subordinate employees of the asylum, left upon the evacuation of the city of Williamsburg by the Confederate forces. It became a matter of stern necessity, as well as the highest duty of humanitv, that the military commander should take possession of that institution and provide for its unhappy and defenceless inmates, who could make no provision for themselves.

That this military commander had the right, under the laws of war, to make im-pressments, and compel forced contributions from the people residing within the military district of which he had command, for the support of the unfortunate lunatics whom the fortunes of war had placed under his protection, seems to me too plain a proposition for serious debate or question.

Upon the evacuation of the city of Wil-liamsburg, and its occupation by the Federal army, Colonel West, the officer in command, found this asylum, with its hundreds of unhappy and dependent inmates, deserted by its officers, without provisions, and helpless to provide them. Must they be turned loose? Must they be left within the walls of the asylum as prisoners to starve? What did the enlightened public law and the laws of civilized warfare demand at his hands? Plainly to protect them and provide them with food. Must this food be furnished out of his own commissariat? Had he not the right to make forced contributions upon the people for that purpose? Must these poor unfortunates starve because he could not furnish them out of his own commissary stores: and because he had no authority to impress provisions for that purpose? If these provisions (the corn and pork of Garrett) had *been taken by impressment, by order of Colonel West for the support of his own army, the title (if is conceded) would have passed out of Garrett at the moment of the impressment. Did not the title also pass to the federal commander, and out of Garrett, the moment they were impressed for the legitimate and more humane use of these poor starving lunatics?

It must be borne in mind that these provisions (corn and pork) taken from the defendant in error (Garrett) were not seized by a band of marauders and robbers without authority, but by a military officer acting under authority of Colonel West, an officer in command of the military district, and in command of the army of occupation.

That such property as that taken from the plaintiff was a proper subject of capture under the laws of war cannot be denied.

The principles of public law, recognized by all civilized nations, and asserted by all enlightened publicists, declare the right of capture of such property by the army of occupation; and when taken, not by marauders, but by regular impressment, authorized by the officer in command, is lawful. Halleck’s In. Nat. Law 458, $ 15, and cases there cited.

The title to property thus taken in war must, upon general principles, be considered as immediately divested from the original owner, and transferred to the captor. As to personal property or movables, the title is in general lost to the former proprietors, as soon as the enemy has acquired a firm possession. The property becomes absolutely the property of the captor, and the original owner is absolutely divested of his title thereto. Wheaton on International Law, $ 359; 1 Kent’s Com. 110 (marg.); also see Secretary Marcy’s instructions to General Taylor in note to 1st Kent 92 (marg.).

Now it is conceded in the opinion of the court, that if Garrett’s corn and pork had been taken for the support of the army of occupation, the capture would have been lawful, and the original owner divested of his title. But it is said that as they were not taken for that purpose, but for the use of the lunatics, the title of the owner was not divested, and that he may recover their value from the Eastern Eunatic Asylum. I cannot see the force of this view. If the property taken was subject to capture under the laws of war; if it was made by regular impressment by an officer having authority to make it, the title was at once transferred to the captors, and was no longer in the original owner. It matters not (the property .itself being under the laws of war a proper subject of capture), what disposition the captor made of it, whether he fed it away to his own soldiers, or distributed it among the poor, or gave it away to prisoners he had captured, or fed it away to starving and helpless lunatics, whom the fortunes of war had placed under his protection and control, the question of title cannot be affected by the use he made of the provisions. They were a proper subject of capture to an army of occupation in the enemy’s country, and when captured by regular impressment the title passed to the captor, and cannot be affected by the use the captor made of them, whether used to feed the army of occupation, or as a benefaction to the helpless inmates of a lunatic asylum.

I deny that the military commander had the right to make capture of provisions only for the support and maintenance of his army1'. I insist £hat upon principle and express' authority of the most learned writers on international law, he had the same right to make ^forced contributions from the people Twithin his military lines; for the support of these unhappy lunatics whom the fortunes of war had temporarily placed under his protection, as, it is conceded, he had to make forced contributions for the support of his own soldiers. He could do this with or without compensation if the necessity arose; and of that necessity he was the sole judge.

• Mr,’ Halleck, in his admirable work on the. Laws of War, p. 457, says: ‘ ‘The modern usage is not to take private property on land without making compensation, except in certain specified cases. These exceptions may be stated under three general heads: 1st, Confiscation or seizure by way of penalty for military offences. 2nd, Forced contributions for the support -of invading armies, or as an indemnity for the expenses of maintaining order an.d affording protection to the conquered inhabitants. And, 3d, Property taken on the field of battle or in storming a fortress or town. All enlightened publicists and writers on international law, Kent, Vattel, Grotius Poison, Martens and Hefflite, lay down the same doctrine. One of the exceptions to the general rule (that private property on land ought not to be taken without compensation) is that it may be done “for the purpose of affording protection to the conquered inhabitants;” and these writers all agree that when so taken the title of the original owner is divested.

If private property may be taken for the purpose of affording protection to the conquered inhabitants, surely a multi fortiori it may be done also for the protection and maintenance of that part of the conquered inhabitants who are helpless and hopeless lunatics. It is clear, therefore, that the corn and pork taken from Garrett being property which under the laws of war *was subject to capture, and being taken by regular impressment by the commanding officer of the army of occupation, the legal title of Garrett in this property was divested from him and vested in the captor. It follows, therefore, that Garrett having no title, cannot maintain the action of trover.

So much for the plaintiff. How is it with the defendant? Did the defendant make a conversion of this property? Who is the defendant? The Eastern Lunatic Asylum, a corporation created by statute, and composed of the president and board of directors. How did this corporation make the conversion complained of by the plaintiff?. At the time of the transaction, out of which this suit grew, the board of directors was scattered, the superintendent was gone. There was no corporate body at Williams-burg. The building was there, and the unhappy inmates were there; but the board of directors, and every officer except certain subordinates, such as nurses, &c., were all gone. The corporation was not there. It could make no contract — it could commit no trespass — -it could make no conversion.

Here then we have a case in which, in an action of trover, a plaintiff who has no title, recovers against a defendant, who not only did not, but could not, make a conversion.

But it is said that the inmates of the Eastern Lunatic Asylum got the benefit of, had the use of Garrett’s corn and pork, and therefore the corporation ought to pay for them. Is this a sound view? Now waiving the insuperable objections as to the form of the action, is this true? Let us see if, upon the most equitable and liberal principles, treating the action of trover as. an equitable action, this is true?

Suppose that Colonel West (as he did do in fact) had arrested as prisoners a number of citizens of Williamsburg, *and had fed them during their imprisonment with the provisions taken from Garrett: is it possible that after the close of the war those gentlemen could have been sued by Garrett, and a recovery had upon the ground that they had the use of the provisions thus taken, and that too in an action of trover and conversion? Or suppose (as he did do) Colonel West had distributed to .the popr of Williamsburg certain provisions, and these were such as he had captured from Mr. Garrett: is it possible that after the war Garrett could have recovered of the returned Confederate soldier the value of these provisions, consumed by his family, given to them by the Federal commander, upon the ground that those families used them, and that too in an action of -trover. The negative to these questions is no stronger than the negative to the proposition which this court asserts against the Eastern Lunatic Asylum. To maintain such an action is to reverse all the rules of law, and to declare that in an action of trover a plaintiff without title can recover against a defendant who did not and could not make a conversion.

If the appellee has any claim it is one that ought to be addressed to the generosity and sense of justice of the legislature, but cannot be maintained in a court of law. _ I am for reversing the judgment of the Circuit court, and remitting the appellee for redress to the legislature.

Moncure, P., and Anderson, J., concurred in the opinion of Staples, J.

Judgment affirmed.  