Echols v. Staunton , 3 W. Va. 574 ( 1869 )

Berkshire, J.

On the trial of this- cause the plaintiffs were permitted to read as evidence on their behalf the deposition of Edward- McMahon, which had been taken and filed iu the cause by the defendant. The deposition of two other persons were taken l>y the defendant at the same time and filed with the deposition of McMahon.

The plaintiffs, after they had introduced their other testimony, notified the defendant that they were through with their testimony except the deposition of McMahon, and that they would read it then unless the defendant intended to read it, and that they would rest their case if the defendant 'would agree to read the said deposition. But the defendant refusing to answer whether he would do so or not, the court permitted the plaintiffs to read it to. the jury as evidence on their behalf.

To this ruling the defendant excepted, and it is maintained hei-e that it was improper to allow the deposition to be read by the plaintiffs at the time and under the circumstances it was read, and before the defendant had closed the evidence on his part, and also to detach it from the other two depositions taken and certified jointly with' it, and read it separately from the other two.

I think the court committed no error in allowing the deposition to be read, and that it is as competent for one party to read on his own behalf a deposition regularly taken and filed by the other party, as it would be to introduce'a witness summoned on behalf of such other party.

I do not think the court erred in refusing to give each of the instructions asked for by the plaintiff in error. The first and third relate to the belligerent rights claimed by him, by reason of which he sought to justify the trespass complained of. This defence, if it could have been made under the plea of not guilty, it has been held by this court, in numerous cases, is wholly inadmissible. The law, I think, is correctly propounded in the instruction given by the court in lieu of the second and fourth instructions asked by the plaintiff in error, and consequently there was no error in refusing to give said instructions.

The remaining error complained of is the ruling of the court in refusing to set aside the verdict and grant a new trial..

From the facts certified as proven on the trial, it appears that at the time the trespass was committed the plaintiff1 in error was in command of the rebel forces in the Kanawha valley, and was in Charleston with his forces, and had his headquarters in the.said' town, about the time the oil was taken from the defendants in error in said town by some of the officers of said army acting under orders, and that the oil was taken in pursuance of orders received by such officers from headquarters.

From this, it appears to me, the plaintiff in error was sufficiently connected with the trespass to make him liable, and I cannot see that the court erred in refusing to set aside the verdict. Shepherd vs. McQuilken, 1 W. Va. Rep., 90; 2 Hilliard on Tort, 292-3; Aldred vs. Bray, 41 Missouri, 485.

I think, therefore, the judgment ought to be affirmed, with costs and damages.

The remaining members of the court concurred.

Judgment ai?3?irmed.