Carskadon v. Johnson , 4 W. Va. 356 ( 1870 )

Brown, President.

This was an action of trespass, assault and battery, and imprisonment, to which there was the pleas of not guilty, and a special plea of belligerent rights, as it is commonly called, and was as follows:

“And the said defendants, for further plea in this behalf, by leave of the court, first had and obtained say, that at the time when, &c., in the plaintiff’s declaration mentioned, a civil war existed, and was being carried on between the government of the United States and a government styling itself the confederate states of America; that before the said term when, &c., the government of the United States, by the President’s proclamation of the 19th and 27th of April, 1861, and the act of Congress of the 13th of July, 1861, recognized that the said war, then being so carried on between the said hostile parties, was a civil war, and that at the said time when, &c., the said plaintiff was a citizen of "West Virginia, recognized and claimed by the said government of the United States to be a loyal State thereof; that he claimed to owe allegiance to the said United States, and an enemy of the said confederate states, residing in the county of Hampshire, in said State, within the territory held and occupied by said United States, and at New Creek, which was then held and occupied by the armies of the said United States as a fortified military post; that the territorial boundaries of the said hostile parties was marked by a line of bayonets, (and before the formation of the State of West Virginia); that on the — day of-, 1862, the said defendants, and each of them, had enlisted as soldiers in the said army of the said confederate states, and from that time continued to be and act as such soldiers in said army, until at the said time when, &c., and were then under the command of brigadier general Thos. L. Rosser, an officer of the army of the said confederate states, and commanding the brigade of said army to which they were assigned, and attached as such soldiers in the confederate army, and of which they then made a part; that at the time when, &c., the said general Rosser made an incursion with his brigade into the said county of Hampshire, and attacked and captured the said fortified military post at New Creek, then held and occupied by the said United States, and drove said forces there from the said post, then being within the territory held by the said United States, and said defendants aver that the said plaintiff was then in the said territory then held by said United States, and also near to the fortified military post thus held by the said United States, and thus captured as aforesaid, by the forces under the command of said general Rosser, of which the said defendants formed a part; that the said general Rosser, at the said time when,&c., then so being in command of said forces, ordered and commanded the said defendants, and other members of his said command, then and there to seize and arrest the said plaintiff, and detain him as a prisoner; and the said defendants aver that under and by virtue of said order and command of the said general Rosser, they did seize, arrest, and carry away, and imprison the said plaintiff, using no more force, or restraint, than was necessary therefor, as they lawfully might do, which is the same supposed trespass in said plaintiff’s declaration mentioned, and without this they committed no other or further trespass, and this they are ready to verify.”

On the plea of not guilty there was issue, and to the special plea, there was a general replication and issue. Then there was a demurrer by the defendants to the evidence and joinder. The jury ascertained the damages, and further found for the plaintiff or defendants as the law upon the demurrer to the evidence might be determined by the court, for the one or the other. And the only question controverted, requiring consideration, is whether the special plea of belligerent rights constituted a defence to the action.

In the case of Hood vs. Maxwell, 1 W. Va. Rep., 219, it .was held that the defendant in trespass, for taking, in May, 1861, the plaintiff’s property, to be used in aid of the rebellion, could not justify the taking under the orders of governor Letcher, because the orders of the governor then, and in that particular, were as illegal as the acts of the defendants. In Hedges vs. Price, 2 W. V. R., 192, and Williams vs. Freeland, Idem, 306, it was held that, the defence of belligerent rights, under which the defendants as rebel soldiers,' or acting under the authority and orders of rebel officers, claimed immunity from liability for trespasses committed in aid of the rebellion, could not justify the trespass, nor bar the plaintiff’s recovery.

In the case of Lively, Ex’or, vs. Ballard, 2 W. V. R., 496, it was again held that the plea of belligerent rights, in behalf of rebels acting under confederate military authority, to a trespass in July, 1861, in the county of Monroe, was not sufficient to bar the plaintiff from recovering. In the case of Echols vs. Stantons, 3 W. V. Rep., 574, it was held, not only that a party could not justify a trespass under the plea of belligerent rights, who committed the act as a rebel soldier or subaltern officer, but that the rebel general who "commanded the military forces at the post, at the time and place the seizure was made, and by whose orders the property was taken, and appropriated in aid of the rebellion, was also guilty as a trespasser, and responsible to the owner for the same. In the case of Caperton vs. Martin, infra, the whole subject of belligerent rights as a defence to trespasses committed in aid of the late rebellion, and under the authority of the so-called confederate government was, by leave of the court, again reargued, elaborately, and the doctrine declared in the cases above recited, reaffirmed. After these repeated decisions, it is too late to question that the special plea of belligerent rights presented no de-fence to the action, and the replication to it presented an immaterial issue.

The only material issue, therefore, in the cause, was the general issue, which the evidence fully sustains for the plaintiff. The judgment, therefore, upon the demurrer to the evidence, should have been for the plaintiff, for the amount of the damages assessed by the jury, not with standing the immaterial issue raised by tbe replication to a bad plea. Urton vs. Hunter 2 W. V. R., 83; Trimble vs. Shaffer, 3 W. V. R., 614.

Tbis view of tbe case renders it unnecessary to notice tbe other points argued in tbe cause, as they cannot again occur in it. I think, therefore, that tbe judgment of the circuit court should be reversed with costs to tbe plaintiff in error, and judgment entered here for tbe plaintiff for 450 dollars, tbe amount ascertained by tbe verdict of tbe jury, with interest thereon from December 21st, 1866, till paid, and costs in tbe court below.

Tbe other judges concurred.

Judgment reversed.