Opinion op the Court by
Judge Hardin :Although the mare in controversy may have been owned by Ford and used by him as a soldier in the army of the so-styled Confederate States in the war with the United States, if he abandoned her on the appellant’s premisos intending that appellant might have her in lieu of bis horse at the same time taken out of his possession by Ford without his consent and against his will, and the appellant thereafter accepted, kept, and claimed the mare as his own property, she was not, while so held and claimed by him, the subject of lawful military capture. And if Craig without compulsion, although with tbe consent of Mathy, his superior officer, took her from appellant against his will, by the war of military force under his control, and converted her to his private use the appellant was entitled to recover against him; and if he and Hally jointly converted her to their use, both of them became liable to such recovery. Tbe ruling of the court as to the instructions given and refused seems to us to have been materially *223in conflict with this view of the law of the case, and is, therefore, deemed erroneous.
Therefore, the judgment is reversed, and the cause remanded for a new trial and further proceedings not inconsistent with this opinion.