Cole v. Radcliff , 4 W. Va. 332 ( 1870 )

Brown, President.

This is an action for trespass and imprisonment of the plaintiff by the defendants. Plea, not guilty. Demurrer to the evidence by the defendants, Milton and John Bad-cliff, and joinder therein by the plaintiff, and judgment thereon for the defendants. The evidence shows that the defendant John Badcliff was not only a party engaged in the raid made by a party of about 300 rebels, which captured the plaintiff, and though not present at the capture, was with the party at camp on the night of the capture, and was along with the squad for a considerable portion of the time and distance, that took the prisoners captured on the raid, and among them the plaintiff, to Bichmond. His connection with the company; his presence with the parties haviug the prisoners in charge, and guarding them on the return, and way to Bichmond, show his participation with the illegal detention and imprisonment, so as to fix his guilt in the premises as a joint trespasser.

But as to the defendant Milton Badcliff, though he was a pai’ty in the raid, yet was not present at the capture, and had nothing to do with it, and is not shown by any subsequent act to have been connected with or participated with those who took or guarded the prisoners, or was otherwise connected with the capture and detention of the plaintiff, or either of the other prisoners, save that he had been with the raiding party.

The purpose of the raid is stated in the evidence to have been the capture of yankee soldiers, not citizens. The plaintiff was a citizen and not a soldier, nor connected with the army. The evidence fails to establish a common intent or conspiracy to capture the plaintiff as the object of the expedition, as will make the defendant Milton Badcliff responsible for acts of others, done when and where he was not present, of which he had no knowledge, and in no way-aided nor counseled, nor by his acts or presence subsequently approved, aided or countenanced. I think, therefore, the evidence fails to show him guilty of the trespass alleged, and the judgment of the court was right as to him.

I am, therefore, of opinion to reverse the judgment of the circuit court, and give judgment on the verdict on the demurrer to the evidence, for the plaintiff, for 300 dollars, the amount of the damages assessed by the jury, with interest from the date of the judgment, against the said John Bad-cliff, with costs in both courts; and a further judgment against the plaintiff in favor of the' defendant Milton Bad-cliff, that he go thereof without day and have his costs and damages in both courts.

The other judges concurred.

Judgment reversed.