The facts disclose a timidity on the part of the military authorities in the discharge of a high duty, which, in my judgment, was very censurable. The preservation of the ■health and efficiency of the men under arms, demanded that the .house of the plaintiff should have been closed, and his liquor poured out in the street. An indirect sort of proceeding was resorted to, to get possession of the house, under the idea of converting it into a hospital, and force, unauthorized force, was employed to accomplish what was defensible in the first view, but illegal in the last. But the question is, who used the force, who dispossessed the plaintiff violently ? There is nothing in the testimony which inculpates Dr. Green, the Surgeon of the post, either as an actor or accessory. He simply made a requisition on the Commandant for a suitable building for an hospital, and indicated the house of plaintiff' as fit for such purpose. I take it to be clear law, that the action of trespass vi et amis, for damages, cannot be maintained, except against a person participating personally in the force, or rendering aid to those engaged, or inciting the forcible dispossession. It is not pretended that he participated or rendered aid. A requisition made in the course of duty, though even had it been with an indirect end in view, cannot, without both an alteration and expansion of the technical meaning of the word “incite,” be held to fall within its definition.
The decision below, dismissing plaintiff’s suit, was placed on the ground that the defendant was protected by the Act of the Legislature, approved 15th February, 1866, for the relief of all persons who were bona fide soldiers of the army of the late Confederate States, for acts done or committed under an order or orders from any officer of the same; also, to relieve *51officers for any act done under orders from a superior officer. I will express no opinion upon this act, as to how far it can protect any one from personal accountability to damages, as there is no actual trespasser before the Court. The judgment below is affirmed solely on the technical principle herein stated.