
    HAWKINS vs. NELSON.
    [detinue eor horse.]
    1. Capture of private property on land in time of war. — The general principle of international law, to wkicli there are admitted exceptions, is now universally acknowledged, that private property on land is exempt from capture and confiscation in war; and this principle was recognized by the government of the United States during the late war, in the published orders of its authorized officials, however much it may have been disregarded or abused in the operations of its armies in the field.
    2. Same; harden of proof. — Where it appears that the horse in controversy was forcibly taken by the United States army during the wai', from the possession of the defendant, to whom it belonged, and who was a non-comhatant; was branded as government property, and carried into another county, where it was abandoned, and left on the plaintiff’s premises, and was afterwards peaceably regained by the defendant, without the knowledge or consent of the plaintiff; the plaintiff cannot recover iu detinue, without showing affirmatively that the capture was authorized by the laws of war, as recognized by the United States government in the published orders of its authorized officials.
    
      Appeal from the Circuit Court of Walker.
    Tried Before the Hon. Wm. S. Mudd.
    This action was brought by Nathaniel Hawkins, against Isaac S. Nelson, to recover a horse, together with damages for his detention; and was commenced on the 19th February, 1866. “ On the trial,” as the bill of exceptions states, “ the evidence showed that, on Tuesday, the 28th day of March, 1865, the horse sued for was the property of the defendant, and was in his possession in said county, and was forcibly taken from his possession, on that day, by the United States army under the command of General Wilson; that the horse, after being seized as above stated, was carried by said army to Ely ton in Jefferson county, was branded ‘U. S.’, in the usual manner in which government horses are branded, and was left by said army in the plaintiff’s lot, on the Saturday next after the said seizure; that the plaintiff claimed and used said horse, from that time, as his own, and continued in the possession of it until September, 1865, when it was taken from his possession, without his knowledge or consent, by the defendant. It was shown, also, that the horse was in the defendant’s possession at the commencement of the suit, and was worth one hundred and twenty-five dollars; and that the defendant had resided for many years in said county, and was a non-combatant. There was no evidence tending to show that the defendant had afterwards acquired any title or possession to the horse, from any source whatever after it was taken from him as above stated, except the possession which he thus acquired in September, 1865 ; nor was there any evidence tending to show that the plaintiff, after he acquired possession as above stated, ever parted with any right or title which he thereby acquired.
    “ Upon this evidence, the court charged the jury, that if the horse sued for was the property of the plaintiff on the 28th March, 1865, and was forcibly taken from his possession, on that day, by the army of the United States ; and that the defendant had never parted with his title or possession, otherwise than by the capture or seizure by the United States army, as set forth above in the statement of the evidence,' — then they must find a verdict for the defendant. The plaintiff excepted to this charge, and requested' the court to instruct the jury, that if the horse was taken from the defendant by the army of the United States, on the day, and in the manner set forth in the evidence, and was branded by said army, and was left by them in the plaintiff’s lot, and was kept, and claimed, and used by him, as his own, until the September following, and was in the defendant’s possession at the commencement of the suit, — then the plaintiff would be entitled to recover, unless there was evidence before them to satisfy them that he had voluntarily parted with the possession, or with the title he had thus acquired. The court refused to give this charge, and the plaintiff excepted.”
    The refusal of the charge asked, and the charge given by the court, are now assigned as error.
    PoeteR & MaetiN, for appellant.
    Rice, Semple & Goldthwaite, contra.
    
   JUDGE, J.

In the general operations of war, it is now the true and universally acknowledged rule of the law of nations, that private property, on land, is exempt from capture and confiscation. — Gardner’s Institutes, 612. This exemption extends even to the case of an absolute and unqualified conquest of the enemy’s country.' — Wheaton’s Int. Law, 346-7. And eminent publicists contend, that “the moral sense of mankind will soon compel all Christian nations to abstain from pirating on private property and persons non-combatant, at sea, as well as on land. The principles of the gospel — the basis of public law — require that war by sea and land should respect private persons and property.” — Gardner’s Institutes, 619.

But to the general rule of international law above stated, there are exceptions. Private property may be taken from enemies in the field, or in besieged towns, or by levies of military contributions, or when it is contraband of war, or necessary for supplies or military purposes. — See note by Dana to Wheaton’s International Law, and authorities therein cited, on page 347.

During tbe progress of tbe recent war in tbe United States, tbe general rule above stated was recognized by tbat government in tbe published orders of its authorized officials, however much it may have been disregarded or abused in tbe operations of armies in tbe field. In, General Orders No. 107, from tbe war department, of date August 15, 1862, issued by command of Major-General Halleck, then “ General-in-chief of the army ”, tbe following paragraph occurs : “ III. Tbe laws of tbe United States, and tbe general laws of war, authorize, in certain cases, tbe seizure and conversion of private property, for tbe subsistence, transportation, and other uses of tbe army; but this must be distinguished from pillage, and tbe taking of property for public purposes is very different from its conversion to private uses. * * * Tbe 52d article of war authorizes tbe penalty of death for pillage or plundering ”, &c. And an order of the president of tbe United States, issued from tbe war department, on tbe 16th of August, 1862, contains tbe following: “First — Ordered,'that military commanders, within tbe States of Virginia, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, and Arkan-. sas, in an orderly manner, seize and use any property, real or personal, which may be necessary or convenient for their several commands, as supplies, or for other military purposes; and that, while property may he destroyed for proper military objects, none shall be destroyed in wantonness or malice.”

Whether' tbe wholesome injunction against tbe destruction of property <fin wantonness or malice ”, was in all cases observed, it were needless now to inquire. Tbe horse which is tbe subject of this suit, was tbe private property of a noncombatant, and, prima facie, not liable to capture. It does not appear from tbe record, tbat any evidence was introduced by tbe plaintiff in tbe court below, on whom was the burden of such proof, showing that tbe capture was within any one of tbe exceptions to tbe general rule above laid down, or tbat it was authorized by any military commander, under tbe laws of tbe United States and tbe general laws of war. Tbe horse having been abandoned by those who took him, tbe rightful owner, under tbe circumstances, was authorized peaceably to re-possess himself of the property.

It follows that the circuit court did not err in the charge given to the jury, nor in the refusal to charge as requested.

Judgment affirmed.  