#### Cook *against*Howard.

*a*ca^re, and an immediate recapture, does not devest the ormaai^owne116 kefTn|,earttettré not vest* in^the Sntfrkter6^ tRaltte? an°d daringbthetahátthe original vo"teds n° 1 e from the enemy, in a war on land, belongs to the. Cwitere ahorse PJSinsstaicse «na»,h¡'0Db7!ín enemy, anu shortly alter re-taken by ’ the If5Swaf” taken d”emiantbJ myCof the *Uni-led States,*acting under the, orders of a superior officer; it was held, that the 1 plaintiff could maintain" an action of trespass against the defendant to recover .the value of the horse, no authority from the *United Slates,*to take the horse, having been shown by the defendant; and it Is 16 tie presumed, until the contrary be shown, that the *United States*never intended to interpose any claim to the property. . .

In trespass, *de bonis asppriaiis,*the defendant caqpot show property in a stranger; although it is otherwise in trover. • ’

IN ERROR, to the court of common pleas of the countv of *■ JSiCtgCtra,*

This was an action of tx-espass, *de bonis asportatis,*for taking a h°rse belonging to the plaintiff. The defendant pleaded, 1, ^ot g^ty* 2. That the horse was the property of the *United States,*and that one Major *Garner,*of the 25th regiment of *United States’*infantry, and senior ofliper and commandant, ponir manded the defendant, being a captain in the said regiment, to take the horse, and deliver him to the quarter master of the regiment; that the defendant took the horse, by virtue of such • order, and delivered him to the quarter master, which are~the mi , „ same, &c. 1 o the second plea, the plaintilf protesting, &c„ *raphed, taat the defendant took the horse of his own wrong, anc^ traversed that the United *States*were lawfully possessed of the said horse. . *

The cause was tried in the *February*term, 1815, of the court and it was proved on the trial, that the horse in question had, previously to the 19th of *December,*1813, been delivered one *St. John,*(who then acted as a wagon mastex-,) by a deputy, or assistant quarter-master genex-a) of the *United States ;*that, on the 19th ox *December,*when the enemy drove the xnhabitants from *hemstovm,*the horse was taken from *St. John*by ^ an *Indian*in the service of *Great Britain;*that, immediately -.•••- • 7 *277after taking him, the *Indian,*on the horse, pursued the plaintiff, who, with others, was fleeing from the enemy ; that the plaintiff discharged a gun, or musket, at the *Indian,*who fell from the horse (as was believed) dead; that ' the plaintiff shortly after took the horse, and kept him in hjs possession until the month of *April,*1814, when the defendant, being an officer of the *United*States’ army, acting in pursuance of an order from an ■.officer commanding a detachment of *United States’*troops, stationed near where the-horse was kept, took the horse from a stable, arid informed the plaintiff that he had taken the horse as the property of the *United*States,

The court below charged the jury that the defendant could acquire no property in the horse until adjudication, by a court of the *United States,*and that the defendant was justified in taking the horse, the commandant of the detachment having • a right to give the order which he did. The jury found a verdict for the defendant below; and a bill of exceptions having been tendered by the plaintiff, to the opinion of the court, the cause was removed into this court by writ of error.

JY. *Williams,*for the plaintiff in error,

contended, 1. That by the capture and recapture, the property in the horse, by the common law, became vested in the-plaintiff. There is a difference between the law of nations and the *common law,*on this subject. By the latter, the *subject*was entitled to goods taken from an enemy of the king, in time of war.* He who takes such goods from the enemies of the king, which were before taken from an *Englishman,*shall have it, as a thing gained in battle, and not the king, the admiral, nor the party to whom the property was before, because the party did not come freshly the same day it was taken from him, and before sunset, and claim it.† This is the common law of England. It is also the law of war, in ancient and modern times. It is a principle of public policy. The question is to be decided rather by the common law than the law of nations; but ihe law of nations, on this subject, is no less clear and decisive. A recapture is considered as a capture from the last possessor, and the last captor acquires the right of property in the goods taken. It is true most of the writers lay it down, that the right of *postliminium,*in regard to moveables, continues during twenty-four hours after the capture; and such seems tq be the generally received prin» *278ciple, though some Writers, even contend, that the booty ifltist be carried *infra, pricsidi'a^*before the property is changed!'* *Vat~ tel*says, that the property, in moveables, is acquired the very moment they come into tlie power of the enemy, and if he sells thetn to neutrals, the first proprietor has no right toreclaim them(a) The'space Of tWenty-four "hours,' as Well as the ous- , tom or the sea, in this respect, is an institution or the *pachtious*' or conventional law of nations, or of custom, or, in short, or the civil law Of certain states. It is not, then, -'a (pririeiple-Of the universal law of nations, that the goods must' remain twenty-four hours in the possession of the captor before the property is changed. And the civil, or *eútnmón law of England,*has settled, this .question.- as to goods taken from, an etlOmy on Jgjjd. 'Biackstohe†. lays down the rulé already' mentioned,= that “if an enemy take the goods of an Englishrii'an, which are, afterwards, retaken by’ another subject of the kingdom, the former owner shall lose his - property therein, and it 'shall be indefeasibly vested in (he second taker, unless they Were retaken the same day, and the-owner, before sunset, put in his claim of-property.’’ And this, he says, was agreeable to the law of nations, ¡understood.in the timéof *Grotius.,*avenas to -captures at sea. The only case to - be found in any writer,- is that mentioned by *Valid,*of the To wn- Of *Li’erte,*which was taken and retaken on the same. day .‡ The claim put in, in this case> was not until six months-after the recapture.

2. As to the necessity Of *condemnation,*it is not denied, in re» gard *to maritime*captures, 'that it may bé necessary to confirm 'the property in .the captor. Such 'appears to be the law as unerderstood in *England**§***and in this state.ǁ •' But, ¡as to captures- on -*an • -ho"1 á public enemy, they aré not the proper subjects for judicial proceedings, by libel arid •condemnation.; -No maritime court can have jurisdiction in such a case.** In *Le Caux*v. Eden,†† Lord *Mansfield*observed, that “ as to plunder, or ¡hoot-y, in á mbre continental land’war. without the presence or interVerition of any' ships, or their crews, it never has been importaut'enough to give-rise to aoy question about it. It is often -given to thé-soM'iers-orithe spot1; or-wrongfully taken ;by them, fcont-rary to military discipline, if there be -any dispute, it is *279regulated by the commander in chief. There is no instance in history, or law, ancient or modern, of any question, before any legal judicature, ever having existed'about it in this kingdom.” ’ Suppose, however, that an adjudication of some court is necessary to confirm the property of the captor, shall not his possession be, in the mean time, protected ? He has, at least, an *inchoate*right of property, which cannot be devested by force.*

3. But what authority had the defendant, in this case, to seize the horse ? Has every military officer power to take, by force, from the possession of a citizen, the property even of the *United States?*It would be a most dangerous and oppressive power, if it existed; but the authority of the defendant to touch this property is wholly denied. If any officer had that power, it must be a *quarter master*of the army, who has the superintendance of the public property, in war, of the *United Stales,*and who gives security for the faithful performance of his duty. If, then, this defendant had no authority to seize, he has been guilty of a trespass.

*Hawley,*and *Parker,*contra.

The capture of the horse, m this case, was followed, almost immediately, by a recapture. The capture by the hostile *Indian*did not transfer the property to him. This case must be decided by the law of nations. *Grotius**†***lays down the rule on the subject: “ Things are said to be taken in war, when they are so detained, that the first owner has lost all probable hopes of recovering them, and cannot pursué them.” And he explains that, when, in other places, it is said that goods taken belong *immediately*to the cap? tors,(a) it is to be understood that they continue so long in their possession that the hope of recovering them is gone. The rule, as to 24 hours’ possession, he calls a new or modern doctrine. *Bynkershoek*recognises the same rule, that the property is not changed, until the owner has lost the *spes recuperandi;*and that is not until the property is carried into a place of safety.‡*Puffendorf,**§***also, accedes to the rule of *Grotius*; and *Vattel,**ǁ***when , , , , ,, , , ' , he says, that the property of moveables belongs to the enemy the moment they come into his powef, adds, but such things must be actually and truly in the enemies’ power, and carried to a place of safety.(b)

*280Blackstone* does not differ from *Grotius,*as to thé iaW of *Mr.*tions, laid down by him and other writers, He-does not; how-i ever, state the ease from the Year *Book*(7 *Edw.*IV. 14.) cor-. rectly, and it is the samé case which- is cited in *Brooke.*The1 condition is, that the original owner must Come freshly or'promptly, the same day, -to claim his property of the captor. is said of the *recaptor.*In *Goss v. Withers**†***nia-y be-found all the law-On the subject,- and, also, the. ease from the year book, in its original language. Lord *Mansfield-*says, that? the general proposition, that what is taken from an enemy *imme« diately*becomes the captors, is to’be understood, when *the battle is*over;-and that is not until all immediate pursuit has ceased, and,all hope of recovery is-gone, . But he says that the rule has been made still more favourable to the owner, in the case of maritime - capture, and the property is not changed until there-has .been a sentence of condemnation; and this principle was adopted,- by this court, in the case of *Wheelwright*v. *Depeyster.**‡***The possession of the horse, in this.case,.by the *Indian,*was temporary; the battle was not over; the conflict still continued,If the property were not devested by the capture, the jws *postliJ minii*still remained in the- *United States,*thé original owfiem This, right takes .place, according to -Vattel,§ “ as soon as the' taken by the enemy fall into the hands of soldiérs belong* ingto the same'nation, or are brought back to the army,-withi-ft their sovereign’s territories* or -the places under his ■ com* mand.”:

Again, admitting- that the *Indian*acquired á -property ifi the horse by the taking, the retaking -by’ the plaintiff!enures to the government of the *United*States* whose>sérvant or agent he is, and under whose authority he acts, For *Puffendorf.and, Vattel'*both lay it down, that all things, *booty as*well as' immoveables* taken from the eiihmy,-belong, to' the sovereign making the war.ǁ Soldiers-are but instruments in his hands-for asserting his: rights'.

This principle was'recognised by judge *Toulnian,&f fhéMis* sissippi.Territory;*in-the casé of *-the- United States*v. *The*schooner ¿Í cíiíiey tried before' him.**

This principle equally applies - to: a recapture, notw-ith*-.*281standing the cases cited from 1 *Wilson*and the *Year Book ;*for war is the act of the sovereign or government, whose exclusive right it is to carry it on. No individual can have the right; and if a citizen takes up arms, he acts in subordination to the spyereign.

But it is said, that the defendant had no authority to take the horse fVom the plaintiff. It is enough that he acted in pursuance of the orders of his commanding officer. It is the duty of every officer of the army to take care of the public property, and a request from the quarter master may be presumed, or the defendant may be considered as quarter master, *pro hac vise,*

N. *Williams,*in reply,

said, that the case before Judge *Toulman*was that of a capture by soldiers, which was different from the present case of a taking by a private citizen. When war is declared, every citizen is at war with the enemy; and was it ever heard that the government has claimed goods taken from an enemy by its citizens ? Captures on land from an enemy, *eo instanti,*change the property.(a) The law as to *maritime*captures is not applicable to this case; and Lord *Mansfield,*in *Goss*v. *Withers,*observes, that writers have drawn lines by arbitrary rules; and many arbitrary circumstances, deemed necessary by them to change the property, have been exploded. That was a case of *insurance,*and decided on the rule as to maritime captures. But admitting the loss of the *spes recuperandi*to be the criterion, it must depend on circumstances ; and if this case be tried by that rule, what means of recovery could there he, when the *Indian*was in full possession of the horse, and the owners had abandoned it? It is á principle of the civil law, and of the *jus gentium,*that what we take from an enemy in war becomes instantly our own.* How is the doctrine of the things taken being carried *intra prccsidia*of the enemy, to be applied to our *Indian*warfare ? But vve rest on the common law; and, according to the case cited from the *Year Book,*in *Goss*v. *Withers,*and to be found in all the *abridgments,*the owner must, promptly., or *282freshly, And before sunset, pursue and. claim his .property, or his right to it is fby ever gone,. The law must be the same whether it-be a case of recapture or capture. The principle and the. reason of it ar.e the same.. As between, our. citizens the'Common law. must be the rulé of decision.

*

*1 Wils. Rep.*213. *Morrough*v. *Comyns, per Wright,*J. *Regist.*102. *b. Bro.*tit. Property, *pl.*18. 38.

†

 18 *Vin. Ab.*67. tit. *Property, (D.) pl.*3. *note. Br. Forfeit. pl. 57. Id. Chattels, pl.*22. *Id.*Properly, *pl.*38. 7 *Ed.*IV. 14. S. C. cited *l Vent.*174.

*

**2 *Aruni. Mar. law. 275, 276. Vattel, B. 3. c. 13. s. 196. Martens, B.*8. c. 3. s. 11, *12. Chitty's L. of N.*98.

†

*2*Bl. Com. 401.

‡

 See Thuanus' Hist. lib. 13.

§

*Chitty's L. of N. 98,*99. Flad. Oyen, 1 Rob Adm. 236, 237, 238.

ǁ

*1 Johns. Rep. 462.*

**

*3 Bl. Com. 106. 108.*

††

*Doug. Rep.*814. *note.*

(a)

*'Ln propriety des-chotet mobiHarcs. ett acquise & Venenii, da moment qtPeHes soiit en sa puisidnce; :et t\il -les vend' chez nations neutr.es, le,premiere pfoprietairc n'esl point en droit'deiks i^vendiq#e.r~ Droit des. Gens.*lib. 3. ch. 13. s. 196.

*

 Wils Rep. 212.

†

*Grot.*de Jeiv. *B. ct P. lib. 3. c. 6. s. 3.*

‡

*Bynkerskoek,*Quest. Jur. Pub. lib 1. c. 4.

§

*Puff.*L. *of*N. and N. lib. 8. c. 6. s. 20.

ǁ

 Liv. 3. c. 13. s. 196.

(a)

*Dig.*41.1.. *Item qua ££ hostibus eaptvnlur, jure gentium*statim, *eapitntiumfiunt.*

(b)

*Mais ilfaiA que ces choses la. soient veritablcment au pauvbir de lfenmi} 6i apnduitea en líen**280(fe *süreté.*Roccus says, “ *Di res capta, dtí hoslibus ejjiciatur ipsorum hosliunt duo rcquifitnlui.i Primum, quod navis capia ducatur inira presidia vpsium hostium, at ad eoruin confine^: Secundum, quod ita ducta, ut sit in tuto, nee a mititibus occurrenlibus. momento recuperan possity et ptnes-.eoS' ¿pernoctara." De Jssecur: Rot.*66. * , •

*

 2 *Bl. Com.*401, 402.

†

*2 Burr. Rep. 685.*

‡

1 *Johns. Rep. 471.*

§

*Droit*des Gens. liv. 3. c. 14. s. 206.

ǁ

*puff. L. of N.*and N. b 8. c. 6. s. 21. Vattel, 1. 3. c. 9. s. 164.

**

**A report of *the case, in*the National Intelligencer of *July*22, 1815, was read by the counsel.

*

 Just. Inst. lib. 2. tit. 1. s. 17. (Cooper's ed. p. 73.)

(a)

*Voet (ad Pandect,*lib. ¿9. tit. J5. s. 3.) does not agree with *Grolius*and others, that it is necessary to carry booty taken from an *enemy,-''intra prccsidia,*in order to vest the property in the taker. “ *Vcrius tamen,"*he says, *eiiam ante per solam occupnlionem dominium prenda hostibus, acquiri,*&c. And Lord Mansfield, in the case cited, seems to incline to the opinion or Voel; but he very justly observes, that it is no wonder there is so great uncertainty and variety of notions among writers, about fixing a positive boundary, by the *men farce of reason,*where the subject matter is arbitrary, and not the object of reason alone.

Thompson, Ch. J.,

delivered the opinion pf-tfae court. If the, right of the plaintiff below to maintain this action depended Upon the abstract' question* .as to the right of property, Tam satisfied hjS must fail'.' It is, necessarily to be inferred, from the bill of exceptions, that the property in the horse was, at the time he was taken, by the enemy, duly vested in the *United States.*And' it is very clear that it was not devested by .any thing,,that took place at the time he was taken by *the Indian.*It ¡s a proposition hot to be .controverted, that, no right could arise from the recapture, unless the property had. vested in the captors.. Whatévér difference of opinion there may have., been among the writers on public law, as to the time when, or what is necessary to ...take, place, in order to. vest the, property in the captors, no approved ju^f has gone so far as to maintain, that, a mere capture is- sufficr'int for that purpose. It has been, generally held, that the property must be carried *inira prcesidia,*<br remain twenty-four, hours in "the hands of the captors, or, that the *spes t recuperandi*must be gone, or that an actual condemnation must take place; But in the case before us, there could hardly be sáid even to have been a capture. • In *Goss*v. *Withers.,*(2 *Burr,*693.,). Lord *Mdnsjield*observed*.thatnothing could be said tobe. . taken until the battle was over; and this is,not until all immediate, pursuit has ceased, an d all hope of recovery is gone. That was- not the Case here. ' The interval between the capture and recapture, must have beqn very short, and during the continuance of the, battle. The property in the horse could never,, under- such circumstances, be considered as vested i;n the captors* If so, the- recapture could not vest it in the plaintiff.

But admitting the right of property had vested in the captors, the better opinion is, that, Upon the recapture, it would have belonged to t.he *United States.'*The rule laid down by *Vattel*(b. 3. ch. 9. s. 164.) is the rational one* He says, as the towns and lands taken from the enemy aré called conquests, so all. moveable things constitute the *booty,*and this, booty* naturally, belongs to the sovereign making, war* no less than the conquests;; *283for he alone has such claims against the enemy as to warrant him to seize* on his goods, and appropriate them to himself. His soldiers are only instruments in his hands, and whatever they do is in his name, and for him, and he may grant them what share he pleases. Lord *Mansfield,*in *Le Caux*v. *Eden, (Doug,*614. n.,) said, that as to plunder or booty in a mere land war, without the intervention of ships, or their Crews, it never had been important enough to give rise to any question about it. It is often given to the soldiers upon the spot, or wrongfully taken by them, contrary to military discipline; and, if there be any dispute, it is regulated by the commander-in-chief. He asserts, that there is no instance in history or law, ancient or modern, of any question, before any legal judicature, ever having existed about it in *England;*and he goes on to observe; that it does not come within the prize jurisdiction.

I have thought proper thus briefly to notice the general question, as to the right of property, as it was gone into, very much at length, upon the argument, though it is unimportant as to the decision of the present case; for, admitting the plaintiff was not the owner of the horse, the defendant had no right to take him out of his possession. He, certainly, was not the owner; and if the horse belonged to the *United Slates,*the defendant showed no competent authority to take him from the plaintiff. The defendant, it is stated, was an officer of the *United States*army, acting under the orders of an officer commanding a detachment of *United Stales*troops. Who this officer was, his rank or standing, does not appear. It is not pretended or intimated that he belonged to the quarter master’s department, to which the care and charge of the public property more properly belong. But the mere fact of his being an officer, commanding a detachment of troops-, could not vest him with the power of taking the property belonging to the *United States*wherever it might be found. It does not even appear that this officer had any command or part in the battle at the time the property was taken. Had any question at that time arisen about it, perhaps the commanding officer, upon that occasion, would have been justifiable in taking possession of the horse in behalf of the *United States.*But the plaintiff had had the peacea'ble possession of the horse for five or six months; and the interference of the defendant was the act of a mere stranger. He showed no authority from the owner; nor does it appear that the conduct *284of the defendant-has ever been ratified or sanctioned by the *United States,*or that the horse has ever come into.their posses-. sioni What has become of him has not been shown. It is true the defendant professed to act in behalf of the *United States,*but,from any thing that appears, this was a mero, pretext,, anti the property was appropriated to his own private use. if this horse belonged to' the *United Stales,*a.s booty or otherwise, who’ cart sáy, ór has a Eight to say, according to the doctrine of- *Vattel,*-that the sovereign shall not give him to the soldier who took him,- for his gallant conduct on that occasion.? This was a matter resting, in the. discretion of the- government, with whom .it belonged to inquire after, and reward merit; and until the con-> trary be shown, the fair presumption.,, under, the circumstances of the case, is, that the government never intended to. interpose any claim to'- this, horse. In an, action of trespass, *dé ñoñis aspar* tat is ^*it is not competent for the defendant to show property in -a stranger to excuse the trespass and justify t'he, taking. If ,a person has the peaceable possession of a chattel, this gives him a right, as. against every body but the rightful owner.: In an action of *trover*the defendant may show title’ in a third person.-(11 Johns. *Rep.*529.) ' But it is’.expressly-laid,dbwn by this courts in *Derrick v. Chapman,*(11 *Johns. Rep.*132.,) that the possession of a chattel Is *prirna facie*evidence of right, and that a mere.stranger could not deprive the- party of that possession, without showing some authority,, or right derived from the owner, to justify the taking. The judgment of the court below must> therefore, be reversed1.

Judgment of reversal.