Summary
recognizing that trustees under a deed of trust must "consider themselves impartial agents for both parties, and act in all sales for the interest of the debtor as well as the creditor"
Summary of this case from Crosby v. Alg Tr., LLCOpinion
03-31-1814
Quarles v. Lacy
Williams, for the appellant. Nicholas for the appellee,
Argued November 15, 1813 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]
In this case, a bill was filed in the Superior Court of Chancery for the Richmond district, by Edmund Lacy against Francis West Quarles and others, to subject to the payment of a debt claimed by the former, certain property conveyed by the latter in trust.
The bill stated that Lacy had obtained a judgment at law against Quarles, who, being taken on a capias ad satisfaciendum, took the oath of an insolvent debtor. It appeared from the proceedings, that the trust estate sought to be subjected by Lacy was a tract of land, or rather a surplus of the proceeds of the sale thereof, which was purchased by Quarles of one Crosbie, and conveyed by Crosbie to Beverley Robinson, and John Fox, in trust to satisfy the purchase money stipulated to be given for it, and in further trust to hold so much of the land as should remain unsold, for the use and support of Mrs. Quarles, the wife of the purchaser, during her life, then to the use of her said husband for his life, should he survive her, and finally, to the use of such of their children as the survivor should designate by deed or will.
By a decree of King William County Court, pronounced in a suit instituted by Crosbie, (for the benefit of Robert Baylor his assignee,) to subject the property to sale for the purchase money, so much of the land as would pay the debt in the decree mentioned, was directed to be sold by the trustees for that purpose. In attempting to carry this decree into effect, they sold the land in parcels, at different times, for about 571 dollars 67 cents in all, and became themselves the purchasers, being the highest bidders at those sales. They paid 542 dollars 85 cents in discharge of the debt, and afterwards sold the same land by private contract, to a certain James Buckner, for nineteen hundred dollars, which (as they stated in the report to the court) they intended to give for the benefit of Mrs. Quarles and her children, after deducting a reasonable compensation for their own trouble and expense.
When this report was made to King William Court, Edmund Lacy, the present plaintiff, as a creditor of Francis W. Quarles, (though not a party to the suit in that court,) was permitted to file exceptions to the report, which, however, were over-ruled, and a decree was made, pronouncing the sale to have been fair, just and honest, and the title to the land to be in the purchasers Beverley Robinson, and John Fox, with right and power to dispose of and convey the same in any way they might think proper.
In their answers to Lacy's bill, they stated that they made the several bids for the parcels of land of which they became the purchasers, reluctantly, and only for the purpose of preventing the lands from being sold at still lower rates; the sales respectively being forced by agents of Robert Baylor, notwithstanding few persons disposed to purchase were present. It appeared in evidence that a private contract, for the sale of the whole tract from Quarles to Buckner, had been made; which circumstance being known in the neighbourhood, probably tended to discourage other persons from bidding at the public sales; that the offering the land in parcels had a similar effect; that the trustees, however, acted fairly and honourably in the whole transaction, and wished to give up their first bid, but (being compelled by the County Court to complete the purchase of the part first sold,) they afterwards insisted on their title to the whole. They also stated in their answers, that after paying the debt to Baylor, they had invested nearly all the balance for the benefit of Mrs. Quarles and family.
The bill in this cause was filed sometime in the year 1807. A decree nisi was entered against Francis W. Quarles, in June 1808. The Chancellor, in July, 1812, heard the cause as to all the defendants, except him, and decreed a sale of so much of the land as should be sufficient to satisfy the plaintiff's claim. But the effect of this decree was to be suspended until the first day of the next term, on or before which day, liberty was reserved to the said F. W. Quarles to shew cause against it, being previously served with a copy thereof. On that day, Quarles exhibited an answer, controverting the justice of the plaintiff's demand, and stating, that George W. Smith agreed to take of him a house and lot in Richmond, at the price of 460l. and to become his security for the balance of the money to be paid for the land purchased of Crosbie, provided that land was conveyed to trustees for the use of his sister Mrs. Quarles for life, and after her death to her children; that, in pursuance of that agreement, the purchase was made of Crosbie, and the deed executed to the trustees; upon which Mrs. Quarles relinquished to Smith her right of dower in the house and lot; that the said house and lot had cost him, Quarles, 460l. of which 130l. being due at that time, was paid by Smith to William Young, the original vendor; that, of the balance, 300l. was paid to Crosbie, and 30l. to Thomas Armistead, a creditor, who had an execution against the respondent.
The chancellor, being of opinion that the matter stated, if true, did not afford sufficient reason for setting aside the decree, refused to admit this answer to be filed: whereupon the defendant Quarles applied for and obtained an appeal to this court.
Decree affirmed.
Williams, for the appellant. The answer of Quarles being offered on the day for shewing cause against the decree, should have been received, according to the uniform practice of the Court of Chancery. That answer went into detail, to shew the injustice of the judgment at law, and, at that stage of the proceedings, should have been considered as true; at least so far as to give him an opportunity of supporting it by proof. The depositions taken in the cause were, as to him exparte, and therefore not to be read against him.
Stubbs v. Burwell, 2 Hen. & M. 536.
The decree of the County Court, a court of competent jurisdiction, had authorised the sale of the land by the trustees, and the approbation by them of the surplus to the use of Mrs. Quarles and family; and they had paid it over at a time when no suit was pending for that surplus. The amended bill in this suit, which exhibited the plaintiff's claim to this fund, was not filed until after all the proceedings in King William Court had taken place. The decree was therefore conclusive against the present demand.
The purchase by the trustees cannot be invalidated on the ground that their buying for themselves is inconsistent with trust; for a trustee may purchase under the authority of a Court of Equity. All the testimony proves that the sale was fairly conducted. The land would have sold for less, if Robinson the commissioner under the decree had not purchased. His having done so was reported to the court, and they sanctioned his purchase.
Campbell v. Walker, 5 Vezey, jr. 678.
A decree of a court of competent jurisdiction cannot be set aside by an original bill, without a charge of fraud. And in such case, the bill ought to state the decree, and the particular fraud alleged. But as Lacy was admitted to file exceptions, he was a party, and could impeach the decree, only by appeal, supersedeas, or writ of error; --not by original bill.
Coop. Eq. 98; Mitf. 85.
Nicholas for the appellee, made four points.
1. The deed of trust, so far as it went to protect the surplus for the use of the wife and children, was void against creditors.
This was a merely voluntary conveyance after marriage, and therefore mala fide in respect to creditors. When it was executed, Quarles was indebted to Lacy. His becoming insolvent soon afterwards is a strong circumstance to shew that fraud was intended. Contemplating his approaching insolvency, he attempted by the deed to secure an estate for life to himself, as well as an estate to his wife and children after his death.
Sudg. 432; 1 Fonb. 260; Rev. Code, 1st vol. p. 15; which is a transcript of the Stat. 13 Eliz. --Note in Original Edition.
2. The purchase by the trustees being for a price obviously inadequate, they must be considered as holding the surplus for the benefit of the creditors. No operation of their's to change the shape of the property, could take it out of the reach of creditors. At the first sale they had a discretion; and there being no person on the ground, disposed to bid, but the agent of Baylor, they should have postponed the sale. It is evident, there was an understanding between Quarles, the trustees, and Mr. Buckner the ultimate purchaser, that he was to have the land. This plainly appears from the circumstance that Buckner was permitted to sow a crop of wheat upon it before the first sale. The witnesses, who say the sale was fairly conducted, only mean that all due forms were observed.
According to the case of Whichcote v. Laurence, 3 Vesey jr. 740, a trustee is not permitted to make a profit to himself. If he buys advantageously, he is bound to account, for the profit made, to the cestuy que trust, or to the person entitled to the fund. The trustees were allowed commissions by the County Court. In their answers they say, they reserved a moderate compensation for their trouble; how much does not appear. If the court should sanction this doctrine that the trustees, having paid over the surplus to the wife, should be protected, the consequence would be, that by contrivances of this sort the claims of creditors might always be defeated.
3. The proceedings in King William Court are no obstacle to the recovery in this cause. We do not attempt to subject the trustees to any personal inconvenience, but only claim the fund which always was liable to our debt.
In the first place, the present plaintiff was not a party to the suit in King William. His being permitted to file exceptions did not make him a party. He happened to be in court, and was permitted to except to a collateral point, but had no opportunity to take evidence and be fully heard. The Court, when they discovered him to be a creditor, ought to have directed him to be made a party, instead of merely allowing him to file exceptions.
In the second place, the present suit was going on at the same time with the suit in King William Court; the subpoena having been returned executed on all the defendants, and the original bill filed, in this cause, before the final decree in King William.
Thirdly, the appellee is interested in only part of the controversy in King William. He does not attempt to set aside the sale, but only claims so much of the surplus as will pay his debt.
Fourthly, the former decree is not pleaded in bar. The proper way to take advantage of the bar is by plea. And such plea must state that the same point was in issue; whereupon it is the course of the court to refer it to a master, to enquire whether the suit is for the same matter which was determined by the decree pleaded.
Wyatt's Pr. Reg. 328; Mitf. 88.
Wyatt, 234.
4. The court acted properly in refusing to set aside the decree, and admit the answer of Quarles.
The subpoena was served upon him in 1806; the attachment was returned executed: the decree nisi was entered in 1808: in 1813, (just as my client was getting a glimpse of equity,) he comes forward, and insists upon setting aside the decree, on his filing his answer, without assigning any reason for not having filed it during that great length of time! If such a practice be permitted, it will open a door for parties always to trifle with the court, and defeat justice. The rule is that a reasonable time, and no more, ought to be allowed to set aside a decree nisi.
Wyatt, 26; 2 Bro. Ch. cases, 279, Williams v. Thompson.
But, upon the merits, the grounds taken in the answer he attempted to file were not sufficient, if true, to affect the decree. A claim to unliquidated damages for a tort is no ground for a set-off against a judgment.
Williams in reply. Mr. Nicholas and myself differ as much about the facts, as we do about the law of this case. The decree nisi, entered in 1808, was never served upon Quarles. The first notification he received was the service of a copy of the decree of 1812, which contained a reservation, permitting him to shew cause against it on or before the first of January 1813; on which day he appeared and offered to file his answer. The chancellor then ought to have received it, since it was offered within the reservation of his own decree.
That answer alleged a circumstance of great importance; viz. that deed of trust was executed in consideration of the relinquishment by Mrs. Quarles of her right of dower in a house and lot in Richmond. It is true that a conveyance after marriage without consideration is void; but if it be upon valuable consideration, as where the relations of the wife undertake for her that she shall relinquish her dower in consideration of the conveyance, and such relinquishment is made, the conveyance is good.
The question of inadequacy of price in the first sale was fully before the County Court, which permitted the trustee to purchase, and held him to his bargain. Lacy in his exceptions made the point, and was overruled by the court. The case of Whichcote v. Laurence, quoted by Mr. Nicholas, was re-considered in Campbell v. Walker, 5 Vesey, jr. and modified by the court.
When a court of equity has affirmed a sale by commissioners appointed by itself, (until which affirmance no title passes by the sale,) no other court of equity, except upon an appeal, can question it. The plaintiff in this case does attempt to impeach the first sale. If not, he has no claim at all; for if the first sale was good, the property was vested in the purchasers, and he has nothing to do with the second sale.
Mr. Nicholas says, he does not wish to interrupt the trustees, but only to claim the fund. If so, why are they made parties? yet he says, (and the chancellor says,) they are trustees of the surplus for the creditors of Quarles.
OPINION
Judge Roane
The court is of opinion, that although it is not competent to a husband, after his marriage, to defeat or obstruct his creditors by a sale or exchange of his property, and by taking a conveyance of the money or property received therefor, to the use, or for the benefit of his wife or family; (such conveyances being deemed voluntary and fraudulent, in relation to creditors; ) yet that the case may be otherwise, in relation to so much of such money or property as goes to compensate the just interests of the wife; and it appearing, from the answer of F. W. Quarles, exhibited in this case, that a part of the King William lands in the proceedings mentioned, or the proceeds thereof, was intended to be settled on Mrs. Quarles, in lieu of her dower in the lot in Richmond, sold by her husband, and her dower in which was relinquished in consideration thereof, the court would be of opinion to reverse the decree, on the ground of not receiving that answer, and permitting the appellant to verify the fact, but for the circumstance that enough of the surplus proceeds of the said King William lands will be left to compensate her right of dower aforesaid, under any reasonable calculation, after the appellees debt, as well as that of Robert Baylor, shall have been first paid.
The court is also of opinion, that the sale of the land in the proceedings mentioned having been made by one of two trustees, and bought in by him for the benefit of both, at a very inadequate price; that the said sale not having been made pursuant to the decree of King William Court, which directed as much of the land to be sold as would pay the debt in the decree mentioned; (which excludes the power of selling in smaller quantities; ) and the same having, in this case, been sold in smaller quantities at different times; (a circumstance which, even in the opinion of the trustees themselves, may have diminished the price obtained therefor; ) and that the said sale having been also made under a general impression existing in the neighborhood, (of which, however, the trustees are not proved to have had knowledge,) that the same had been before sold by private contract; that the purchases thereof by the trustees themselves, under these circumstances, are not valid, nor can become so by their having subsequently relinquished the same for the benefit of Mrs. Quarles and her family. As to the circumstance mentioned by the trustees, that the agent of the creditor was present to urge, or, as is said, to force the sale, the court is clearly of opinion that no such influence ought to have operated upon them--and that trustees, acting under private deeds of trust, as well as those acting under decrees of a Court of Chancery, should consider themselves impartial agents for both parties, and act in all sales for the interest of the debtor as well as the creditor. On these grounds the court is of opinion, that the sales of the land by the trustees to themselves, under the circumstances aforesaid, were not valid, and did not transfer the right to them; but that error having been corrected by their subsequent sale to Buckner for a full and fair consideration, the proceeds of which, after satisfying Baylor's debt, have been vested in Mrs. Quarles and her family, the court is of opinion, that the said last mentioned sale should not be disturbed, but be ratified; but that so much of such proceeds should be held liable to the debt of the appellee as shall be necessary to pay the same. On these grounds the decree of the Court of Chancery is to be affirmed.
TRESPASS.
I. Introduction and Scope.
II. Trespass in Its Civil Aspect.
A. The Wrong.
1. Illustrations of What Does or Does Not Amount to Trespass.
a. Tortious Acts Generally.
b. Trespasses by Cattle.
c. In the Commission of an Unlawful Act.
d. When a Lawful Authority Saves a Trespass.
2. Instigating and Abetting a Trespass.
3. Joint Trespasses.
a. Joint and Several Liability.
b. Effect of Judgment or Release against or to One Joint Trespasser.
c. Appeal.
B. The Remedies.
1. Distinction between Trespass and Case.
a. At Common Law.
(1) In General.
(2) When " Trespass" Lay.
(3) When " Case" Lay.
(4) When Concurrent.
b. As Modified Now by Statute.
c. Case to Recover for Ejectment of Passenger from Train.
d. " Case" for Breach of Duty by Omission to Perform an Obligation.
e. " Case" to Recover a Statutory Penalty.
f. " Case" for Injury to Town Lot by Change of Grade.
2. The Possession Necessary to Maintain Action for Trespass.
a. Of Lands.
(1) To Maintain Trespass Vi et Armis.
(a) The Virginia Rule.
(b) The West Virginia Rule.
(c) Possession of Guardian.
(d) When Presumed.
(2) To Maintain Trespass on the Case.
b. Of Personalty, to Maintain Trespass Vi et Armis.
C. Pleading and Practice.
1. The Declaration.
a. Sufficiency of Description of Premises.
b. Laying the Trespass with a Continuando.
c. Pleading by Way of Recital, (Quod Cum.)
d. Necessary Averments as to Possession, Negligence, Consideration, Title, etc.
e. Treated as Partaking of the Nature of the Action if Possible.
f. Forms Whose Sufficiency Has Been Passed upon.
2. Plea and Replication.
3. Proof.
a. In General.
b. What May Be Proved under Allegation of Alia Enormia.
c. Variance.
4. Verdict and Recovery.
5. Merger and Waiver.
D. Defenses.
1. Under General Issue of Not Guilty.
a. In Justification.
b. In Mitigation of Damages.
2. Pleas.
a. Accord and Satisfaction with one Joint Trespasser.
b. Belligerent Rights as a Plea to Trespass.
c. Duress.
d. Justification by Officers under Lawful Orders.
e. Abatement of Nuisance.
f. Public Necessity.
g. Recaption of Property.
III. Trespass in Its Criminal Aspect.
A. Statute of Criminal Trespass.
B. Dogs as Subjects of Trespass by Statute.
C. Destruction of Toll Gates.
D. Indictable Trespass at Common Law.
E. Act Done under Bona Fide Claim of Right.
F. Outlawry.
Cross References to Monographic Notes.
Amendments, appended to Snead v. Coleman, 7 Gratt. 300.
Assault and Battery, appended to Roadcap v. Sipe, 6 Gratt. 213.
Damages, appended to Norfolk, etc., R. Co. v. Ormsby, 27 Gratt. 455.
Detinue and Replevin, appended to Hunt v. Martin, 8 Gratt. 578.
Evidence, appended to Lee v. Tapscott, 2 Wash. (VA) 276.False Imprisonment, appended to Jones v. Com., 1 Rob. 748.
Fraud, appended to Montgomery v. Rose, 1 Patton & H. 5.
Indictments, Informations and Presentments, appended to Boyle v. Com., 14 Gratt. 674.
Injunctions, appended to Claytor v. Anthony, 15 Gratt. 518.
Justices of the Peace, appended to Wallace v. Com., 2 Va. Cas. 130.
Libel and Slander, appended to Bourland v. Eidson, 8 Gratt. 27.
Limitation of Actions, appended to Herrington v. Harkins, 1 Rob. 591.
Malicious Prosecution, appended to Guerrant v. Tinder, Gilm. 36.Oysters, appended to Power v. Tazewells, 25 Gratt. 786.
Revival of Actions.
Sheriffs and Constables, appended to Goode v. Galt, Gilm. 152.Trover and Conversion, appended to Eastern Lunatic Asylum v. Garrett, 27 Gratt. 163.
Unlawful Detainer, appended to Dobson v. Culpepper, 23 Gratt. 352.
I. INTRODUCTION AND SCOPE.
In treating of trespass we are met at the threshold by a confusion and ambiguity in the terminology of the subject. On the one hand we have the word " trespass" used to designate a tortious act or omission, which amounts to a breach of duty, furnishing in many cases the ground for a criminal prosecution therefor, and in every case giving a right of action for damages to the party injured thereby. On the other hand we have the same word " trespass" used to describe the remedy whereby redress is to be sought, it being used as an abbreviation of the name of the form of action employed to recover damages for injuries to persons or to property which result directly from force applied, to wit: trespass vi et armis. Minor's Inst. (3d Ed.) vol. IV, pt. 1, p. 436, a special form of which, trespass vi et armis, quare clausum fregit is employed to recover damages for such injuries (resulting directly from force applied) by trespass on lands. Minor's Inst. (3d Ed.) vol. IV, pt. 1, p. 56.
The action of trespass vi et armis, when employed to obtain redress for the forcible taking of chattels, and the immediate consequential injury therefrom, is sometimes specially designated as trespass vi et armis, bonis asportatis, but more commonly, simply trespass.
The other form of action to obtain civil redress for trespass is trespass on the case, or simply " case," as it is briefly termed, which lies to recover damages for an injury consequential upon the trespass itself, not resulting directly from force applied. Minor's Inst. (3d Ed.) vol. IV, pt. 1, p. 436.
The common law distinctions between these actions, and the statutory modifications thereof, will be more particularly considered below.
Scope.--This note includes the substantive offence of trespass, in both its civil and criminal aspects, and the forms of action above mentioned for its redress, and excludes trespass on the case in trover, trespass on the case in assumpsit, assault and battery, false imprisonment, libel and slander, malicious prosecution, injunctions to prevent trespass, measure of damages, and other branches of the subject covered by the monographic notes on the above named and other subjects, to which reference is hereby made.
II. TRESPASS IN ITS CIVIL ASPECT.
A. THE WRONG.
1. Illustrations of What Does or Does Not Amount to Trespass.
a. Tortious Acts Generally.
Attempt to Enter Dwelling at Night.--Insisting on being admitted into the house of another at a late hour of the night, after it is closed, and after being refused by the owner, is a trespass. Daingerfield v. Thompson, 33 Gratt. 136.
Removal of Line Fence--Whether Trespass or Not.--Where accused, who is under prosecution for killing deceased, had built a fence upon the line between his land and that of deceased, and it had been so used for a number of years, and deceased had notified accused not to remove it, the removal thereof would be nothing more than a trespass, if that. But if the fence had been built by the accused on his own land, such removal would not be a tortious act at all. Hash v. Com., 88 Va. 172, 13 S.E. 398.
Killing a Dog.--It is conceded on all hands, that a civil action for damages may be maintained for killing a dog. Davis' Case, 17 Gratt. 626.
Common Carrier Fraudulently, but Not Feloniously, Appropriating Goods.--In an action of trespass on the case against a common carrier, if it appear, by a bill of exceptions, to have been proved at the trial that the defendant fraudulently opened certain packages and casks, being in his care and belonging to the plaintiff, took therefrom a part of their contents and converted the same to his own use, but not that the said contents were feloniously carried away, such offence is to be considered as amounting to a trespass only. Cook v. Darby, 4 Munf. 444.
Quoere, whether the right of action for the civil injury be merged in the felony or not, in this country, as in England. Cook v. Darby, 4 Munf. 444.
Collecting and Casting Surface Water on Adjoining Land Owner.--A party, who by cutting a ditch or drain collects surface water and casts it in a body upon the land of an adjoining owner, unless it is so cast in a natural watercourse, is liable to an action therefor by such adjoining owner. Knight v. Brown, 25 W.Va. 808; Gillison v. Charleston, 16 W.Va. 282; Hargreaves v. Kimberly, 26 W.Va. 787.
b. Trespasses by Cattle. --Although the fence law of this state does not require the owner of cattle to restrain them from passing of their own accord upon the unenclosed lands of another, it gives such owner no authority to drive them there, and if he does so drive them, he is answerable for whatever damage they may do while there. The fence law has not repealed, or in any way impaired the full force and effect of the common-law rule with respect to willful or malicious trespass. Poindexter v. May, 98 Va. 143, 34 S.E. 971.
Again, the common law imposes on the owner of domestic animals the duty of keeping them on his own lands, or within inclosures, and he becomes a wrongdoer if any of them escape or stray off upon the lands of another. But this rule is not in force in West Virginia except as to unruly and dangerous animals, or where land entered is enclosed by a lawful fence. Baylor v. B. & O. R. R., 9 W.Va. 270, 285; Blaine v. C. & O. R.R., 9 W.Va. 252. See as to lawful fence, Code of W.Va. (1899), ch. 60; Va. Code, 1887, § 2042 et seq.
c. In the Commission of an Unlawful Act.
Firing Pistol in Street. --The willful firing of a pistol in the streets of a city, whether done maliciously or not, is of itself an unlawful act, and the consequences must be visited on those who commit it, or instigate it. Daingerfield v. Thompson, 33 Gratt. 136; Parsons v. Harper, 16 Gratt. 64.
d. When a Lawful Authority Saves a. Trespass. --If the facts and grounds really existed on which the statute authorizes an arrest in civil cases (W. Va. Code, ch. 106, § 30), the party who causes the order to issue and the arrest to be made, cannot be made liable in an action of trespass merely because he has not pursued the form prescribed by the statute. If he does that which confers jurisdiction for the issuance of the order, and there is probable cause for the action taken by him, he cannot be treated as a trespasser because the affidavit is not in proper form; but the proceeding, if irregular, must be set aside in a direct proceeding, and the party made liable for any damages inflicted, by an action on the bond given. Ogg v. Murdock, 25 W.Va. 139.
But under the statute, the order of arrest can only be made in an action or suit. This plainly means a pending action or suit. The pendency of the action is made a condition precedent and the basis of the right to issue the order. It confers the jurisdiction on the court or clerk to issue it, and, unless done in a pending action, the issuing of the order is without legal sanction or authority and the proceeding is void. This being true, the party causing the order to be issued is a wrongdoer and liable to an action for this wrongful act. And this is so, even when the act is done under the advice of counsel. Ogg v. Murdock, 25 W.Va. 139.
Railroads--Grade Crossing--Accident--If Terms of Covenant for Same Not Observed, Whether Trespasser or Not.--If one railroad company is permitted to cross the track of another at grade on terms of a written covenant between them, the first mentioned cannot, in an action on the covenant, be considered a trespasser or wrongdoer in making such crossing; the latter company cannot sue in covenant, setting out the contract between itself and the former and at the same time undertake to hold it liable as a wrongdoer. It might have sued in trespass on the case to recover damages for the injury sustained, and then, if the defendant had sought to set up the covenant, there might have been room for the contention that a compliance therewith on its part was a condition precedent to the acquisition of any rights thereunder. Norfolk, etc., R. Co. v. Suffolk, etc., Co., 92 Va. 413, 23 S.E. 737.
Trespasser Ab Initio--Illegal Search.--The landlord of a tenant at will may peaceably enter the premises, but an illegal search for stolen goods makes him a trespasser ab initio. Faulkner v. Alderson, Gilm. 221.
Trespasser Ab Initio--Damages.--And in trespass q. c. f. for such an injury, the jury in assessing damages, may estimate the injury necessarily resulting to the plaintiff's character. Faulkner v. Alderson, Gilm. 221.
See monographic note on " Landlord and Tenant" appended to Mason v. Moyers, 2 Rob. 606; monographic note on " Damages" appended to Norfolk, etc., R. Co. v. Ormsby, 27 Gratt. 455.
2. Instigating and Abetting a Trespass.
One Present and Participating in Trespass Liable Therefor.--If a party be present at the time goods are taken, participating, aiding and assisting in the taking, or countenancing and encouraging those who took them, or taking and receiving the goods, he is liable in an action of trespass for the value of all the goods then taken. Shepherd v. McQuilkin, 2 W.Va. 90.
Liability of Abettor of Trespass.--Whilst the mere presence of a person at the commission of a trespass will not make him liable for its consequences, yet every one present encouraging or inciting a trespass by words, gestures, looks or signs, or who, in any way, or by any means, countenances or approves the same, is, in law, assumed to be an aider and abettor, and is liable as a principal to the extent of the injury done. Daingerfield v. Thompson, 33 Gratt. 136.
But the burden is on the plaintiff to show that the party charged was present, aiding, encouraging, or inciting the trespass. Daingerfield v. Thompson, 33 Gratt. 136.
The Instigator of a Trespass Liable Therefor--Joint Liability.--Whoever instigates another to the commission of a trespass is liable therefor. All persons who direct or assist in committing a trespass are, in general, liable as principals, and where several are concerned, they may be jointly sued, whether they assented to the act before or after it was committed. Shaver v. Edgell, 48 W.Va. 502, 37 S.E. 664.
3. Joint Trespasses.
a. Joint and Several Liability. --Where two attachments were sued out against the same debtor by different creditors, within a few hours of each other, if the attaching creditors had been joint trespassers in seizing and detaining the attached effects, then they would have been jointly and severally liable for the whole amount of the damage resulting from such joint trespass, but their acts in so seizing and detaining said effects having been several, they are liable severally for the damage resulting from their several act. Fechheimer v. Bank, 31 Gratt. 651.
Party Injured May Sue Any or All.--A party injured by cotrespassers may sue either one of the individuals against whom the action may be brought; he is not bound to prosecute all; and although a plea of abatement is permitted in case of nonjoinder of debtors, the privilege is not extended to tortfeasors, as all are regarded as principals, and neither the omission to sue all, nor, if all are sued, the dismissal of one of them from the suit, can be pleaded by the others in bar. Bloss v. Plymale, 3 W.Va. 393.
But he is entitled to only one satisfaction, and if the damages have been in part satisfied by payment or compromise with some of the defendants, while the plaintiff may still proceed against those who remain on the record, a receipt to one of the defendants from the plaintiff, for a sum already received on account of the alleged trespass, may be given in evidence to the jury, that such sum may be deducted in the finding. Bloss v. Plymale, 3 W.Va. 393.
In Joint Action of Trespass--How Damages Assessed.--In a joint action of trespass against several, if the jury find the defendants guilty jointly, and especially if they have pleaded jointly, it is the duty of the jury to assess the damages jointly against all, for otherwise they depart from their own finding, which is that the defendants are equally guilty, and from the rule of law which makes joint trespassers liable for the amount which the most culpable ought to pay. Crawford v. Morris, 5 Gratt. 90; Ammonett v. Harris, 1 Hen. & M. 488.
How Plaintiff May Cure Defect in Verdict.--But where the jury by mistake have assessed several damages, the plaintiff may cure the effect by entering a nolle prosequi as to some, and taking judgment against the other. Crawford v. Morris, 5 Gratt. 90; Ammonett v. Harris, 1 Hen. & M. 488.
Wrong Instruction--Who May Complain Thereof.--In such a case, therefore, an instruction to the jury that they may sever the damages, while erroneous is not an error of which a defendant can complain in an appellate court; though the plaintiff may. Crawford v. Morris, 5 Gratt. 90.
b. Effect of Judgment or Release against or to One Joint Trespasser.
Judgment against One Joint Trespasser--Effect--Virginia Doctrine.--A judgment against one of several joint trespassers, whether satisfied or not, is a bar to any action against the cotrespassers. Petticolas v. City of Richmond, 95 Va. 456, 28 S.E. 566.
The West Virginia doctrine is that there must be actual satisfaction, or what is equivalent thereto, not a mere judgment, for it to be a bar. See Griffie v. McClung, 5 W.Va. 131; Bloss v. Plymale, 3 W.Va. 393, and generally, monographic note on " Assault and Battery" appended to Roadcap v. Sipe, 6 Gratt. 213.
Release to One Joint Trespasser--Effect.--An absolute release of one joint trespasser discharges all the rest who participated in the act; but the release as a discharge for all, that has been given one only, must be a technical release, under seal, expressly stating the cause of action to be discharged without conditions; and no release will be allowed by implication. Bloss v. Plymale, 3 W.Va. 393.
But now this is changed even as to the technical release, by statute. W.Va. Code (1899), ch. 136, § 7. And a release, not under seal, of one joint trespasser, or a satisfaction and discharge of the liability against him, which shows on its face that it was not the intention to satisfy and discharge the liability of the other joint trespassers, will not be allowed to work a discharge of the action. Bloss v. Plymale, 3 W.Va. 393.
c. Appeal. --The plaintiff cannot appeal from a judgment in favor of all the defendants, except one, in a joint action of trespass, until the suit has been abated, dismissed, or decided, as to that one. Wells v. Jackson, 3 Munf. 458.
B. THE REMEDIES.
1. Distinction between " Trespass" and " Case."
a. At Common Law.
(1) In General.
Distinction between Trespass and Trespass on the Case.--" It is a settled distinction, that where an act is done which is in itself an immediate injury to another's person or property, there the remedy is usually by an action of trespass vi et armis ; but where there is no act done, but only a culpable omission, or where the act is not immediately injurious, but only by consequence and collaterally, there no action of trespass vi et armis will lie, but an action on the special case, for the damages consequent on such omission or act." * * *
" The terms 'immediate' and 'consequential' should, as I conceive, be understood, not in reference to the time which the act occupies, or the space through which it passes, or the place from which it is begun, or the intention with which it is done, or the instrument or agent employed, or the lawfulness or unlawfulness of the act; but in reference to the progress and termination of the act, to its being done on the one hand, and its having been done on the other. If the injury is inflicted by the act, at any moment of its progress, from the commencement to the termination thereof, then the injury is direct or immediate; but if it arises after the act has been completed, though occasioned by the act, then it is consequential or collateral, or, more exactly, a collateral consequence." Jordan v. Wyatt, 4 Gratt. 151.
Choice between " Trespass" and " Case" --Immediate or Consequential Injury.--" Whether the injury occasioned by the act be immediate and direct or not is the criterion; and not whether the act be unlawful or not. If the injury be immediate and direct, it is trespass vi et armis, if consequential, it will be trespass on the case." * * * There is no better illustration of the distinction than the familiar case, commonly put, of throwing a log into a highway, which in its flight or fall, hits or strikes a person; there the injury is immediate, and the remedy may be trespass; but if, after it has fallen and while lying on the ground, a passenger stumbles over it and is hurt, the injury is consequential, and the remedy must be " case." Jordan v. Wyatt, 4 Gratt. 151; Winslow v. Beal, 6 Call 44; Muse v. Vidal, 6 Munf. 27; Moore v. Dawney, 3 Hen. & M. 127; Cleek v. Haines, 2 Rand. 440; Olinger v. M'Chesney, 7 Leigh 660; Daingerfield v. Thompson, 33 Gratt. 136.
Willfulness Immaterial.--The distinction between trespass vi et armis, and trespass on the case for consequential damages, in this: --that where the act done is in itself an immediate injury to another's person or property, and without, or against his consent or agreement, there trespass vi et armis will lie, and not such action on the case; but where the act is not immediately injurious, but only by consequence, and collaterally, there no action of trespass vi et armis will lie, but a special action on the case for the damages consequent on such act, and in trespass vi et armis it is immaterial whether the injury be committed wilfully or not. Taylor v. Rainbow, 2 Hen. & M. 423.
(2) When " Trespass" Lay.
For Injuries Caused by Gun Shot Wound.--Where defendant through neglect, and for want of due caution, but without any design to injure, discharged a loaded gun in a public place where many people were assembled, the contents of which gun struck plaintiff's leg and wounded him severely, in consequence of which wound the plaintiff lost his leg, and incurred great expense in effecting its cure, besides being disabled from carrying on his business, as before, an action on the case for consequential damages did not lie; but the proper action was trespass vi et armis. Taylor v. Rainbow, 2 Hen. & M. 423.
" Trespass" Proper Remedy for Man Prosecuted without Probable Cause for Stealing Deed.--It seems, that, if a man is prosecuted without probable causes, for stealing a deed, as for a larceny, his proper action for the redress, is " trespass," and not trespass on the case. Cleek v. Haines, 2 Rand. 440.
But if he should bring trespass on the case instead of " trespass," and a verdict is found for him, the error is cured by the statute of jeofails. Cleek v. Haines, 2 Rand. 440.
Though the verdict was rendered before that section had begun to operate, the error will be cured. Cleek v. Haines, 2 Rand. 440.
Trespass Vi et Armis, Not " Case" Lies against J. P. for Wrongful Issue of Search Warrant.--Trespass vi et armis and not " case," is the proper action against a justice of the peace, for maliciously and corruptly, with intent to injure and oppress, and without probable cause, issuing a search warrant, by virtue whereof a constable forcibly entered the plaintiff's close, and took and carried away from his possession certain slaves which he held as his property. Muse v. Vidal, 6 Munf. 27.
For Injury Done by Fire Allowed to Escape.--" Trespass" will lie for injury to property by the unintentional but negligent escape of fire kindled by one engaged in a lawful pursuit and intending no harm, and whose act would have been harmless, but for his carelessness and negligent. Jordan v. Wyatt, 4 Gratt. 151; Cunningham v. Pitzer, 2 W.Va. 264.
(3) When " Case" Lay.
Against County Surveyor for Refusing to Furnish Copies of Surveys.--A special action on the case lay against the surveyor of a county for fraudulently refusing to furnish copies of surveys, when lawfully demanded, and thereby enabling a third person to locate the lands therein described, before the plaintiff. Preston v. Bowen, 6 Munf. 271.
" Case" against Sheriff for Refusing to Receive a Vote.-- Quoere, whether an action on the case will lie against a sheriff for refusing to receive the vote or a person duly qualified; or whether such action would lie against an officer acting in obedience to a legislative act, found to be in conflict with the constitution. Custis v. Lane, 3 Munf. 579.
" Case" Proper Action under § .2792.--An action of debt will not lie against a sheriff for levying an execution upon the property of the plaintiff's tenant without paying him a year's rent. The proper remedy is " case" for consequential damages. Byrd v. Cocke, 1 Wash. (VA) 232.
" Case" for Breach of Warranty.--" Case" is a proper remedy for the breach of an express warranty of soundness of slave or other personal chattel sold, as much so as the action of assumpsit, with which it is a concurrent remedy. Trice v. Cockran, 8 Gratt. 442. See monographic note on " Warranty."
" Case" Lies for Father for Seduction of His Daughter.--Trespass on the case may properly be brought by a father, for the loss of the service of his daughter, and expenses incurred by him, in consequences of her seduction, no forcible injury to himself or his property being alleged in the declaration. Parker v. Elliott, 6 Munf. 587. See monographic note on " Seduction."
It will be observed that " case" still lies in all these instances as before, the statute having merely enlarged the field of this action.
(4) When Concurrent.
" Trespass" and " Case" May Be Concurrent in Case of Negligent Performance of Lawful Act.--" Where the injury is immediate and attributable to the defendant's negligence, I can perceive no good reason why the two remedies of 'trespass' and 'case' should not be concurrent, so that either may be selected; the action of 'trespass' founded upon the defendant's act, against which his negligence can be no defense; or the action on the case, founded upon his negligence in doing an act which would have been otherwise lawful. In either form of action, the merits of the case would be the same, would fall under the same issue, appear from the same evidence, turn upon the same responsibility, and receive the same adjudication." Jordan v. Wyatt, 4 Gratt. 151.
Wrongful Distress--" Trespass" or " Case." --Where a distress was made for rent pretended to be due, when in truth there was none due, and the goods distrained were not sold, the remedy was by action at common law, and " trespass" might have been maintained; but the party suing was not obliged to bring " trespass:" he might waive the trespass and bring " case." Olinger v. M'Chesney, 7 Leigh 660.
b. As Modified Now by Statute.
Statute Allowing Trespass on the Case to Be Brought Wherever " Trespass" Will Lie.--In any case in which an action of " trespass" will lie, there may be maintained an action of trespass on the case. Code of Va. (1887), § 2901; Code of West Va. (1899), ch. 103, § 8.
Construction of Statute.--Where two creditors levied separate attachments on property of their debtor, one on personalty, and the other on the same personalty and also on two leaseholds, though, at common law, action on the case was the proper remedy so far as the goods, etc., embraced in the first attachment were involved, and trespass vi et armis was the remedy as to the leaseholds which were not levied on by the first, yet as under the Virginia statute " case" may be brought wherever the action of trespass vi et armis could be brought, the action on the case was properly brought to recover the damages sustained as to all the property attached. Fechheimer v. Bank, 31 Gratt. 651.
c. " Case" to Recover for Ejectment of Passenger from Train. --Trespass on the case in tort is proper action to obtain damages for wrongful ejectment of passenger from train. Boster v. C. & O. R. Co., 36 W.Va. 318, 15 S.E. 158.
Where Trespass Will Not Lie--Converse of Statute Not True.--An action of trespass on the case may be maintained (by reason of the statute, Code 1860, ch. 148, § 7), in any case in which " trespass" will lie. But the converse of the proposition is not provided for by statute. " Trespass" therefore, remains as at the common law. Where a party is ejected forcibly from a car, and brings an action of " trespass," and in his declaration alleges secondary or consequential damages by reason of detention, etc., a demurrer is properly sustained, as the declaration shows a case in which " trespass" at the common law will not lie, that action being always for immediate and direct injury. Barnum v. B. & O. R. Co., 5 W.Va. 10.
But the case of N. Y., etc., R. Co. v. Kellam, 83 Va. 851, 3 S.E. 703, goes further still, holding that the statute abolishes distinction between these two actions. Here the writ was in " case," the declaration in " trespass," and the demurrer for variance was held properly overruled, and that the declaration should be treated as a declaration in " case." This case seems to differ from the West Virginia doctrine as laid down in Barnum v. B. & O. R. Co., 5 W.Va. 10.
Joinder of Counts in Trespass and Case.--Since the act, Code, ch. 148, § 7, p. 589 (Code of 1887, § 2901), counts in " trespass" may be joined to counts in " case," in an action on the case. Parsons v. Harper, 16 Gratt. 64; Ferrill v. Brewis', 25 Gratt. 765; Womack v. Circle, 29 Gratt. 192; Beckwith v. Mollohan, 2 W.Va. 477; Lively v. Ballard, 2 W.Va. 496; Hood v. Maxwell, 1 W.Va. 219. See Jones v. Murdaugh, 2 Leigh 447.
d. " Case" for Breach of Duty by Omission to Perform an Obligation--Concurrent with Assumpsit. --Where the law from a given statement of facts raises an obligation to do a particular act, and there is a breach of that obligation and a consequential damage, an action on the case founded on the tort is proper. Here the law raised an obligation on the defendant to do a particular act, to wit: to collect or return the notes, and he was guilty of a breach of that obligation. The plaintiff was at liberty to consider the breach of duty as his gravamen, and " case" was his appropriate remedy, though he might have sued in assumpsit. Ferrill v. Brewis', 25 Gratt. 765; So. Express Co. v. McVeigh, 20 Gratt. 264.
e. " Case" to Recover a Statutory Penalty. --The penalty prescribed by a statute, no form for the recovery thereof being prescribed, may be recovered by the person injured in an action of trespass on the case in the form set forth in the opinion. The action is to be adapted to the nature of the case, and modelled according to the distinctions of the common law. It may be an action of debt, assumpsit, " trespass," or " case," as the particular nature of the wrong or injury may require. Recovery is not limited to the penalty. Mapel v. John, 42 W.Va. 30, 24 S.E. 608.
Per Contra--" Case" Does Not Lie--Virginia Doctrine.--Actions to recover specific penalties imposed by statute do not sound in damages, and where a statute imposes a penalty, no part of which can accrue to the commonwealth, but provides no particular mode by which the person aggrieved may recover the penalty, the common-law action of debt is the proper action. An action on the case does not lie, that action sounding in damages. Russell v. L. & N. R. Co., 93 Va. 322, 25 S.E. 99.
f. " Case" for Injury to Town Lot by Change of Grade. --To recover damages for injury to a lot in a town by reason of a change of grade in front of it, trespass on the case is the proper and usual action. Ridgeley v. Town of West Fairmont, 46 W.Va. 445, 33 S.E. 235.
On subject of injunctions against trespass, see monographic note on " Injunctions" appended to Claytor v. Anthony, 15 Gratt. 518.
2. The Possession Necessary to Maintain Action for Trespass.
a. Of Lands.
(1) To Maintain Trespass Vi et Armis.
(a) The Virginia Rule.
Actual Possession Necessary to Maintain Trespass Q. C. F.--To maintain an action of trespass quare clausum fregit, there must have been actual possession in the plaintiff, when the trespass was committed. And therefore, such an action will not lie for any damages resulting from the ouster of the plaintiff, after the trespass was committed, unless the plaintiff has regained the possession. Cooke v. Thornton, 6 Rand. 8; Truss v. Old, 6 Rand. 556.
Until entry, the heir cannot maintain trespass against an intruder. Marsteller v. Coryell, 4 Leigh 325.
Actual Possession Necessary to Maintain Trespass Q. C. F. --Execution of Writ of Hab. Fa. Pos. Does Not Give Possession against Tenant.--W. recovered a judgment in a case of unlawful detainer against S. for a tract of land, and sued out a writ of hab. fa. pos., which was executed by the sheriff. At this time, K. occupied the land as tenant of S., but was not present. Afterwards W. requested K. to deliver the landlord's share of the crop to the agent of W. which K. promised to do; but S. having obtained a supersedeas to the judgment, K. delivered the crop to him. Since the execution of the writ, the land has been formed by the tenant of W. W. could not maintain trespass q. c. f. without a previous recovery in ejectment, or proof of his actual possession at the time of the alleged trespass, and the execution of the writ of hab. fa. pos. gave W. no possession against K. Kretzer v. Wysong, 5 Gratt. 9.
The nonperformance by K. of his promise to deliver the landlord's share of the crop to the agent of W., was no trespass. and if K. had been ousted, or delivered possession to the tenant of W., prior to the alleged trespass, the right of action for the trespass enured not to W., but to the tenant. Kretzer v. Wysong, 5 Gratt. 9.
Where There Is No Evidence of Possession Actual or Constructive, Plaintiff in Trespass Quare, etc., Must Fail.--In trespass quare clausum, where the boundary between plaintiff's and defendant's lands was in dispute, and the evidence failed to show that plaintiff ever had actual or constructive possession of the disputed strip, but tended to show possession thereof in defendant prior to, and at the time of, the trespass, judgment for defendant was proper. The court expressly refrained from any opinion as to whether, as was suggested, the rule as laid down in Cooke v. Thornton, 6 Rand. 8, that actual possession is necessary to maintain trespass q. c. f. is still the law or not, but said it had not been overruled as yet, or questioned, by any Virginia case. Blackford v. Rogers, 2 Va. Dec. 292.
(b) The West Virginia Rule.
Actual Possession Not Necessary to Maintain " Trespass" --Title and Right of Possession Enough.--However it may have been formerly doubted, it has been long and well established that trespass to real estate may be maintained upon constructive as well as actual possession, and that a party having the title and right of possession, in the absence of any adverse possession, by legal intendment has such constructive possession in law, and may maintain trespass for an injury done to such real estate. Snyder v. Myers, 3 W.Va. 195; Storrs v. Feick, 24 W.Va. 606 (the action was trespass q. c. f. ); Wilson v. Phoenix, etc., Co., 40 W.Va. 413, 21 S.E. 1035.
But the adverse possession that will prevent such action by the owner, must be such as entirely takes away the constructive possession from the owner and not the intrusion of a mere wrongdoer. It must be such a possession as will constitute a disseizin of the owner, and must be an actual, exclusive, and continuous possession under a bona fide claim of title. Storrs v. Feick, 24 W.Va. 606; Snyder v. Myers, 3 W.Va. 195.
And it is certainly true that a person who enters upon land without any color of title, will be held to be in possession of no more than he actually occupies. Storrs v. Feick, 24 W.Va. 606, citing Kincheloe v. Tracewells, 11 Gratt. 587.
And even in such case, in order to protect himself in the action of trespass, he must show that he had a prior possession of the exact places in which the alleged trespass was committed. The act constituting the trespass cannot also be the act which disseizes the rightful possessor. Storrs v. Feick, 24 W.Va. 606. See generally, monographic note on " Adversary Possession" appended to Nowlin v. Reynolds, 25 Gratt. 137.
Against Wrongdoer.--Possession alone is sufficient, to maintain trespass against a wrongdoer. Clay v. City of St. Albans, 43 W.Va. 539, 27 S.E. 368.
Ordinarily possession alone is sufficient to entitle plaintiff to recover in trespass. McKenzie v. R. Co., 27 W.Va. 306, and ca. ci.
(c) Possession of Guardian.
Possession Is in Guardians, Not in Wards.--Possession being indispensably necessary to support trespass quare clausum fregit, guardians in socage, and testamentary guardians, although they have no beneficial interest, yet have a legal interest, and the possession of the ward's land during the guardianship. If, therefore, a person trespass on the lands of an infant, and cut and carry away his trees, without the license of the guardian, the ward cannot maintain trespass, but the guardian may, and must account to the ward for the damages recovered. If the trees are cut and carried away by permission of the guardian, no trespass is committed, and the infant, even after the guardianship has ceased, cannot maintain trespass for the act. The wrong must be compensated to the ward by the guardian. Truss v. Old, 6 Rand. 556.
But He Must Be a Regularly Qualified Guardian.--Not a guardian by nature, but only a guardian appointed, who has given bond as and when required by law, is entitled to the possession, care, and management of his ward's estate.
An infant who has no such guardian who has given bond may, for damage done to his real estate, sue by next friend. McDodrill v. Pardee, etc., Lumber Co., 40 W.Va. 564, 21 S.E. 878.
(d) When Presumed.--On the trial of an action of trespass quare clausum fregit, brought by the heirs of R. A., the defendant demurring to the plaintiffs' evidence, by the evidence stated in the demurrer it appears that R. A. died seized. There is no positive proof that the plaintiffs, his heirs, ever entered after his death, but there is proof that the defendant's possession did not commence till a year after R. A.'s death. On this evidence, in a demurrer to evidence, it may fairly be inferred, that R. A.'s heirs entered into possession immediately upon their ancestor's death, and that therefore they are entitled to recover. Marsteller v. Coryell, 4 Leigh 325.
If an administrator declare (in trespass) that the defendant with force and arms, entered his (the plaintiff's) close, and took therefrom certain slaves belonging to the estate of his intestate, it will be intended, after verdict, that the trespass was committed on the plantation of his intestate, and that the plaintiff was in possession thereof, for the purpose of finishing the crop, by virtue of the act of assembly. Moore v. Dawney, 3 Hen. & M. 127.
(2) To Maintain Trespass on the Case.--Actual possession, being one, and the first element of title, is prima facie evidence of full legal title in him who has it and is sufficient to maintain trespass on the case. Wilson v. Phoenix, etc., Co., 40 W.Va. 413, 21 S.E. 1035; High v. Pancake, 42 W.Va. 602, 26 S.E. 536; Clay v. City of St. Albans, 43 W.Va. 539, 27 S.E. 368.
b. Of Personalty, to Maintain Trespass Vi et Armis.
Injury to Slaves--Right of Trustees under Ineffectual Deed, Out of Possession, to Maintain Trespass, Denied.--A deed, signed and sealed by A. and wife only, and ineffectual to create or pass an estate, releasing to E. their claim to certain slaves, with a reservation that they should be held by B. and J. W. as trustees for specified uses, is not sufficient evidence of property, or possession, in the persons named as trustees, to enable them to maintain an action of trespass for an injury done to such slaves. Kennedy v. Waller, 2 Hen. & M. 415.
Bare Possession Sufficient for Maintenance of Action against a Wrongdoer.--In an action of trespass vi et armis for taking and carrying away goods and chattels of plaintiff, possession under a deed of bargain and sale having been shown, the gist of the action is the wrong done to the plaintiff's possession, according to the established doctrine, and mere possession is sufficient to maintain trespass against a wrongdoer, without showing any special title. Wustland v. Potterfield, 9 W.Va. 438; Clay v. City of St. Albans, 43 W.Va. 539, 27 S.E. 368; McKenzie v. R. Co., 27 W.Va. 306, and ca. ci. ; Snyder v. Myers, 3 W.Va. 195.
Bare Possession Sufficient for Maintenance of Action against a Wrongdoer. --Defendants, Wrongdoers, Cannot Attack Plaintiff's Title and Put Him on Proof Thereof.--In an action of trespass vi et armis for taking and carrying away goods and chattels of plaintiff, possession of plaintiff under a deed of bargain and sale having been shown, the defendants, standing neither on any former possession of their own, nor deriving title under any possession of any other person, and without giving any answer to the fact of plaintiff's prior possession, but resting merely on the objection that the plaintiff's title was fraudulent, and being themselves wrongdoers, have no right to put the plaintiff on proof of title. Wustland v. Potterfield, 9 W.Va. 438.
C. PLEADING AND PRACTICE.
1. The Declaration.
a. Sufficiency of Description of Premises.
Must Be Reasonably Definite.--In an action of trespass to realty, or an action on the case in lieu thereof under the statute, the place where the acts complained of were done is material and traversable, and the allegations there of must in some way, either by the name of the land or close, by some of all of its abuttals, by naming a particular locality, or in some other way, designate or describe such locus in quo with a reasonable degree of definiteness; otherwise the declaration will be bad on demurrer. McDodrill v. Pardee, etc., Lumber Co., 40 W.Va. 564, 21 S.E. 878.
In an action of trespass to real estate, unless the object of the suit is to try the title to the land, it is not necessary to describe it with accuracy and particularity, but only to designate it by possession name, or by some of its abuttals or monuments, sufficiently to give the defendant notice of its locality, so that he may properly plead to the action. Glen Jean, etc., R. Co. v. Kanawha, etc., R. Co., 47 W.Va. 725, 35 S.E. 978, citing McDodrill v. Pardee, etc., Lumber Co., 40 W.Va. 564, 21 S.E. 878.
b. Laying the Trespass with a Continuando. --The trespass cannot be laid with a continuando, unless the plaintiff has remained in possession, or regained it. Cooke v. Thornton, 6 Rand. 8.
Where, in trespass quare clausum fregit, the declaration charges that the defendant, on a certain day, with force and arms, broke and entered the plaintiff's close, situate, etc., and then and there ejected, etc., the plaintiff from the possession of said close, and kept and continued him so ejected, etc., for a long space of time, viz.: from thence hitherto; whereby the plaintiff, for and during all that time, lost and was deprived of the use and benefit of said close, to wit; at the county aforesaid. On demurrer, the count is good. The trespass is not laid with a continuando, and the allegation that the plaintiff was kept out of possession " from thence hitherto," is intended to show the character of the ouster as constituting a complete disseisin. Bailey v. Butcher, 6 Gratt. 144.
c. Pleading by Way of Recital (Quod Cum). --The gist of the action must, in all cases, be directly and positively averred, in the declaration; therefore, if, in trespass the plaintiff declare " for that whereas," etc., and do not make a positive averment, it is error, and will not be cured by verdict. Moore v. Dawney, 3 Hen. & M. 127; Hord v. Dishman, 2 Hen. & M. 595; Battrell v. Ohio River R. Co., 34 W.Va. 232, 12 S.E. 699; Lomax v. Hord, 3 Hen. & M. 271; Ballard v. Leavell, 5 Call 531; Donaghe v. Rankin, 4 Munf. 261; Spiker v. Bohrer, 37 W.Va. 258, 261, 16 S.E. 575. See monographic note on " Amendments" appended to Snead v. Coleman, 7 Gratt. 300.
But in Parker v. Elliott, 6 Munf. 587, an action on the case by a father for the seduction of his daughter, the declaration was held good on demurrer, though the objection was made and not denied, but justified, that it was laid in the quod cum.
The other Virginia, and West Virginia. cases seem thoroughly in accord, that such a mode of statement is fatal on demurrer in actions of trespass or trespass on the case for torts.
Participial Statement Not within the Rule.--While it is a general rule of pleading that whatever facts are necessary to constitute the cause of action must be directly and distinctly stated, and not by way of recital, yet, when the participial form of verbs is used in stating such facts, instead of tenses conveying the sense of more positive statement, while such form of statement is not to be commended, still, if it is plain that the facts are intended to be positively stated and alleged, and other clauses of the declaration, by direct averment, state all the facts essential to give a cause of action, taken in conjunction with a legal presumption, such mode of allegation would not render the pleading bad on demurrer. Battrell v. Ohio River R. Co., 34 W.Va. 232, 12 S.E. 699.
d. Necessary Averments as to Possession, Negligence, Consideration, Title, etc.
Pleadings Must Show Title.--This rule is met, in declarations in trespass or case for injury to property, real or personal, by alleging possession--as here that the plaintiff was seized * * * and possessed--without stating the plaintiff's estate. Clay v. City of St. Albans, 43 W.Va. 539, 27 S.E. 368.
To maintain an action of trespass for an injury to real estate, it is necessary to allege and prove possession, either actual or constructive, in the plaintiff at the time the injury was done. The same rule applies to an action on the case brought to recover damages for injury done to real estate. Gillison v. City of Charleston, 16 W.Va. 282.
Against Railroad for Damage to Realty from Construction and Operation Thereof.--A declaration in case for damages to plaintiff's realty, of a permanent character, caused by the construction and operation of a railroad, which merely alleges possession, while sufficient on demurrer, nevertheless, should have alleged both title and possession and a permanent injury to the property, for otherwise defendant might have successfully objected to the introduction of evidence of a future and permanent injury. Then the declaration must have been amended, as a second action could not be brought for such future and permanent injury. McKenzie v. Ohio River R. Co., 27 W.Va. 306, citing Smith v. Point Pleasant, etc., R. Co., 23 W.Va. 451.
Sufficient to Allege Property in Goods and Chattels.--In trespass for taking and carrying away goods and chattels, it is sufficient to charge in the declaration that the goods were the property of the plaintiff, without also charging that they were taken out of his possession. Donaghe v. Roudeboush, 4 Munf. 251.
Description of Personal Property.--In declaring for the taking away of a quantity of poultry consisting of turkeys, geese, ducks and hens, it is not necessary to state how many there were of each description, the collective value of the whole being stated. Donaghe v. Roudeboush, 4 Munf. 251.
Necessary Averments as to Negligence.--A declaration in case against a railroad, for negligently and wrongfully killing the plaintiff's cattle on its track, need not specify the acts of omission or commission which constituted the negligence and wrong. Hawker v. B. & O. R. Co., 15 W.Va. 628; Berns v. Gaston, etc., Coal Co., 27 W.Va. 285; Snyder v. Wheeling, etc., Co., 43 W.Va. 661, 28 S.E. 733, where it is said: " But it must specify with reasonable certainty the main or primary act of omission or commission doing the damage."
" Case" for Breach of Duty in Bailment--Averment of Consideration.--It is not necessary that a declaration, in an action on the case for tortious neglect, shall contain an express averment of a consideration. The breach of a trust undertaken voluntarily is actionable, the pure trusting the party with the goods being a sufficient consideration. Ferrill v. Brewis', 25 Gratt. 765.
Trespass for Ejectment from Train--Necessary Averment of Right to Be There.--In an action for being ejected from a railroad car, it is not sufficient to aver generally that the party was wrongfully ejected, but it must be sufficiently set forth that his expulsion was improper and wrongful; i. e., that being rightfully in the car he was illegally expelled. Barnum v. B. & O. R. Co., 5 W.Va. 10.
e. Treated as Partaking of the Nature of the Action if Possible.
Count Is in Case, Though Setting Forth a Contract.--In an action by the owner against the hirer of a slave, for injury received by him in a dangerous employment in violation of the contract of hiring, the stating of the contract in a count, and the injury as done in violation of the contract, does not prevent the count being in tort, for the gist of the complaint is the doing of the wrongful and injurious act by the hirer. Harvey v. Skipwith, 16 Gratt. 393.
The court will treat a count in a declaration as partaking of the nature of the action; so that if the action is ex delicto, the count will be intended as ex delicto also, unless there be something in its form and structure which plainly forbids such intendment. Ferrill v. Brewis', 25 Gratt. 765.
f. Forms Whose Sufficiency Has Been Passed upon.
Declaration in Trespass--Sufficiency.--A count in a declaration for trespass on real estate that alleges that " the defendants cut and removed all the timber from the land, including oak, pine, walnut, etc., of the value of $ 3,000," without specifying the number and value of each kind of tree, is sufficient. Newlon v. Reitz, 31 W.Va. 483, 7 S.E. 411.
Declaration in Case for Obstruction of Way.--A declaration in case in the form given by Chitty, alleging generally the plaintiff's possession of a messuage and incident right to a way over another close, and the obstruction by the defendant of the latter right is good.
But a declaration purporting to set forth facts that constitute such a right, and so indicating that no others material exist, if it does not show facts sufficient, though it superadds, a general statement that otherwise might be adequate, is nevertheless bad. Standiford v. Goudy, 6 W.Va. 364. See Rogers v. Coal River, etc., Co., 41 W.Va. 593, 23 S.E. 919.
Count in Trespass by Purchaser of Land for Timber Cut before and after His Purchase.--Where a count in a declaration for a trespass on land alleges that before a judicial sale and before its confirmation a party cut and destroyed timber on the land purchased, the purchaser so alleging such matter shows no right of action. But where the declaration also alleges a cutting after the sale, it is sufficient on general demurrer to the whole count. Newlon v. Reitz, 31 W.Va. 483, 7 S.E. 411.
Form of Declaration in Trespass against Administrator for Goods Taken by His Intestate, under Sec. 2655 of the Code. --See Vaughan v. Winckler, 4 Munf. 136, for form of declaration in trespass, by an executor against an administrator for goods taken by the intestate of the latter from the former's testator, which was held to be good though it concluded like a declaration in debt, stating a demand and refusal
Quoere, whether vindictive damages could be recovered in such action. Vaughan v. Winckler, 4 Munf. 136.
As to when right to bring trespass and case survives against personal representative of decedent, see monographic note on " Debts of Decedents" appended to Shores v. Wares, 1 Rob. 1.
2. Plea and Replication.
Insufficient Plea--No Issue Joined--Repleader.--In trespass, if the defendant pleads the word " justification," only, this does not set out the gist of the defense, and when the plaintiff replies generally, no issue is joined in the cause; and therefore, after verdict for the defendant, a repleader will be awarded. Kerr v. Dixon, 2 Call 379.
But a verdict for the plaintiff in such case ought not to be set aside, it being a rule that, " a repleader is not grantable in favor of the person who made the first fault in pleading." Kirtley v. Deck, 3 Hen. & M. 388, and cases cited in foot-note.
Special Pleas--Facts Therein Admitted Not Evidence to Sustain Plaintiff's Case.--A defendant can plead as many matters of law and fact as to him may seem necessary to his defense, and the facts stated in one or more of them cannot be used as evidence or admission to disprove anything contained in the others, nor to sustain the plaintiff's declaration. And if the plaintiff fails to prove the allegations of the declaration by other evidence independent of the defendant's special pleas, the plaintiff cannot recover. Nadenbousch v. Sharer, 2 W.Va. 285.
Special Plea as Well as General Issue--Must Be a Replication Thereto.--In trespass, quare clausum fregit, the declaration charging the trespass, generally, in a parish and county, if the defendant plead not guilty, and a justification " that the land in question was his freehold," the plaintiff must reply to the justification, as well as join issue upon the plea of not guilty. Mangum v. Flowers, 2 Munf. 205.
What Is No Departure in Pleading.--The declaration charges a trespass in entering the plaintiff's close and pulling down his house. The plea says the house was in imminent danger of taking fire, and of communicating the fire to other houses. The replication to the plea avers that by a diligent use of the means in the power of the defendants, the house might have been prevented taking fire. This is no departure in pleading and it is not necessary to state in the replication the means by which the house might have been prevented taking fire. Beach v. Trudgain, 2 Gratt. 219.
3. Proof.
a. In General.
Defendant in Trespass on the Case Is Conducting a Public Nuisance--Unnecessary to Prove Negligence.--A mill, manufacturing powder and other explosives, and storing the same on the premises, situate on the bank of the Ohio river and near two railroads and a public road, is a public nuisance, and any one injured in property by explosion of powder stored there may recover damages without proof of negligence in its operation. Wilson v. Phoenix Powder Manuf'g Co., 40 W.Va. 413, 21 S.E. 1035.
Evidence of Pulling Down House Competent under General Issue in an Action of Trespass Quare, etc.--Where the averment in a declaration was that the defendant broke and entered the close of the plaintiffs, situated in the town of R., in the country of H., to which the plea of not guilty was entered, it is proper to admit testimony to show the breaking and entering of any close in that place, and as tending to show the manner of the breaking and entry upon the close, and the injury sustained thereby, the evidence of the pulling down of the house on the close was admissible. Snyder v. Myers, 3 W.Va. 195.
b. What May Be Proved under Allegation of Alia Enormia. --In trespass, when the act complained of is accompanied by circumstances of aggravation, they may be proved under the general allegation of alia enormia, without further specification, when they do not afford a substantial ground of action. They give character and quality to the act complained of, and show the degree of the injury, and could not be redressed at all if not allowed to be proved as incidents of the trespass complained of. Peshine v. Shepperson, 17 Gratt. 472; Faulkner v. Alderson, Gilm. 221; Fishburne v. Engledove, 91 Va. 548, 22 S.E. 354.
And where there is no such allegation they cannot be shown, and when a trespass is committed without fraud, malice, oppression, or other special aggravation (and this alleged trespass must be so treated under the pleadings in the cause), the object of the law is to give compensation for the injury suffered and damages are restricted to that object. Fishburne v. Engledove, 91 Va. 548, 22 S.E. 354; Peshine v. Shepperson, 17 Gratt. 472.
c. Variance.
Action of Tort on Contract--Variance from Contract.--When an action of tort is founded on a contract, a variance from the contract alleged will be as fatal as in an action on the contract itself. In " case" for a wrongful distress, if the plaintiff allege that he held under a lease for five months, for twenty dollars payable in repairs and labor, and at the trial it appear that the lease was for twelve months, for a money rent of sixty-five dollars, the variance will be fatal. Olinger v. M'Chesney, 7 Leigh 660.
4. Verdict and Recovery,
Separate Pleas of Not Guilty--General Verdict of Guilty Good.--In an action for tort against several defendants for an alleged joint trespass, although they severally pleaded not guilty, there is but one issue submitted to the jury, and a general finding in favor of the plaintiff, without naming the defendants, is a finding against all the defendants. Fishburne v. Engledove, 91 Va. 548, 22 S.E. 354.
Verdict--Form--Effect of Issuable Plea on Rule for Inquiry of Damages.--A verdict in an action of trespass on the case reading, " We the jury, find for the defendants" (the plea being not guilty), is good. Though in an action sounding in damages, there is an order at rules for an entry of damages, yet a plea of the general issue, or other issuable plea, filed in term, annuls that order, and the jury is properly sworn to try the issue, and not to inquire of damages. Peters v. Johnson, 50 W.Va. 644, 41 S.E. 190.
In trespass against an administrator for goods taken away by the intestate, judgment ought not to be reversed, for concluding, " and the defendant may be taken, etc.," instead of " and the defendant in mercy, etc." Vaughan v. Winckler, 4 Munf. 136.
Recovery in Trespass--Interest.--The jury may allow interest on the sum found by the verdict in an action of trespass, and fix the period at which it shall commence; therefore it is not error for a circuit court to instruct the jury that the defendant is liable, if at all, for the value of the property taken, with interest on that value from the time it was taken. Shepherd v. McQuilkin, 2 W.Va. 90.
Tenant and Reversioner May Sue and Recover Seperately for Injury to Their Interests in Realty.--Where a tort upon realty affects both the estate of a tenant and that of a reversioner or remainderman, each may sue separately; and, as the damages are apportionable, each recovers damages to cover the injury done to his estate. Neither can recover damages covering the entire injury to both estates. Jordan v. City of Benwood, 42 W.Va. 312, 26 S.E. 266.
5. Merger and Waiver.
Felony--Merger of Civil Action.--Though an act amount to a felony, that fact does not constitute a bar to, or a suspension of, a civil remedy for the same act. Allison v. Bank, 6 Rand. 204. See quoere to same effect in Cook v. Darby, 4 Munf. 444.
Waiver of Trespass by Bringing Trover or Detinue.--If a plaintiff bring trover or detinue, to recover a horse, and trespass, for taking the same horse, a judgment for the defendant in action of trover or detinue is a good bar to the action of trespass; for, by bringing trover or detinue, he waives the trespass. Hite v. Long, 6 Rand. 457.
In trespass, he might have recovered damages, not only for the force and violence, but for the value of the horse; but having elected to sue for the horse only, or its value, he is bound by his election. Hite v. Long, 6 Rand. 457.
Waiver of Tort.--In certain cases of trespass to personal property, the owner may waive the tort, or trespass, and sue in assumpsit or trespass for the value of the property. McDonald v. Peacemaker, 5 W.Va. 439.
D. DEFENSES.
1. Under General Issue of Not Guilty.
a. In Justification.
Distinction between " Case" and " Trespass," as to What May Be Proved under General Issue.--In " case" to recover damages for injury to a lot in a town by reason of a change of grade in front of it, the defendant may give in evidence, under the general issue, a release, or accord and satisfaction, or whatever would, in equity and good conscience, according to the existing circumstances, preclude the plaintiff from recovering, as any matters which operate a discharge of the cause of action, or any justification or excuse, which cannot be done under the general issue in trespass. By this plea, all the material averments of the declaration are put in issue. Ridgeley v. Town of West Fairmont, 46 W.Va. 445, 33 S.E. 235.
Actions of trespass are stricti juris, and accordingly a former recovery, release, or satisfaction, must be specially pleaded. Ridgeley v. Town of West Fairmont, 46 W.Va. 445, 33 S.E. 235.
Defenses Provable under General Issue in Trespass--Possession under Fraudulent Deed--Evidence Thereof.--Under a plea of not guilty to an action of trespass for the taking under an attachment as the property of their debtor of personal property claimed by the plaintiff, the defense set up was that the plaintiff's title thereto was derived under a fraudulent and void sale from their debtor. This is a good defense if true, and in support thereof the defendants have the right to prove the acts and declarations of Shaw occurring and made a few days before the alleged sale, tending to show a fraudulent purpose of putting his property in the hands of his father out of the reach of his creditors, though the plaintiff was not present, when such acts were done or declarations made, and had no knowledge thereof. Bishoff v. Hartley, 9 W.Va. 100.
What Must Be Proved to Establish Such Defense.--But before the defendants can succeed in having the sale regarded as a nullity, they must satisfy the jury, by the evidence offered by the plaintiff, or by their own evidence, that the grantor was actuated by a fraudulent purpose, in making the sale to the plaintiff, and that the plaintiff participated in this fraudulent purpose, or had knowledge thereof, when he purchased said property. Bishoff v. Hartley, 9 W.Va. 100.
Justification under a Statute Should Be Specially Pleaded.--Where the declaration in case charges that the defendant, contrary to his official duty, refused to furnish copies of certain surveys, when demanded by the plaintiff, if the defendant be excused by any provision in the land law from furnishing the copies so demanded, he ought to plead it specially. Preston v. Bowen, 6 Munf. 271.
Unsworn Declaration of Stranger That He Committed the Trespass, Incompetent.--A declaration, not upon oath, by a person not a party to the cause, that he committed the trespass for which the suit is brought, cannot be given in evidence to exculpate the defendant. Penner v. Cooper, 4 Munf. 458.
No Defense That Defendant Was Engaged in Lawful Pursuit and Intended No Harm.--It is no ground of defense to this action that the defendant was engaged in a lawful pursuit and intended no harm, and that his act would have been harmless but for his carelessness or negligence. He was not the less a trespasser; and in truth his only ground of defense in this or any proper form of action would have been, that he was in no wise careless or negligent, but had proceeded with due caution and circumspection, and that the injury done by his act was occasioned by unavoidable accident. Jordan v. Wyatt, 4 Gratt. 151.
b. In Mitigation of Damages.
Set-Off.--One trespass cannot be set off in bar of another; but when the damages alleged by the plaintiff are caused in part by the wrongful act of the plaintiff, the defendant may by way of defense, under the plea of not guilty, prove such wrongful act of the plaintiff in mitigation of the damages claimed. Knight v. Brown, 25 W.Va. 808; Hargreaves v. Kimberly, 26 W.Va. 787.
General Issue--Evidence of Ownership of Slave Competent in Mitigation of Damages for Taking Her.--Where court below refused to receive evidence on the part of the defendant to prove that the title to the slave was in himself, because the plea was not guilty, the judgment was reversed, a new trial awarded, and the evidence directed to be received in mitigation of damages only. Ballard v. Leavell, 5 Call 531.
Mitigation of Damages--Incompetent Evidence.--On a joint plea of " not guilty," in trespass vi et armis against two defendants, for breaking the plaintiff's close and beating his slaves, the defendants ought not to be permitted to give in evidence, by way of mitigation of damages, a license from the plaintiff to one of them, to visit his negro quarters, and chastise any of his slaves who might be found acting improperly, the battery being committed by the other defendant, and no proof appearing that the slaves who were beaten had acted improperly. Brown v. May, 1 Munf. 288.
Illegal Warrant Admissible in Mitigation of Damages.--A warrant to arrest a person of whom security for the peace is demanded, being executed neither by a sworn officer, nor the person to whom it was directed by the magistrate, but by an individual selected by the prosecutor, who erased the name of the person appointed by the magistrate, and substituted that of the person selected by himself, is thereby rendered altogether illegal and void as a justification, but may be given in evidence in mitigation of damages. Wells v. Jackson, 3 Munf. 458.
2. Pleas.
a. Accord and Satisfaction with One Joint Trespasser.
Must Prove Trespass Was Joint by Evidence.--In an action of trespass on the case against several as joint trespassers, which was afterwards dismissed as to several of the defendants, among them one to whom a receipt was given showing a settlement of all claims against him, there was no error in permitting the declaration to go in evidence with the orders of dismission, for they were parts of the record of the case. But as the plea of not guilty put in issue the allegations of the declaration, and thus threw on the plaintiff the burthen of proving them, they cannot be used by the defendants as evidence to sustain their plea of accord and satisfaction. As to that plea, to which there was a general replication, and all facts necessary to sustain it, the onus probandi was upon them. And as there was no other evidence in the cause showing the defendant with whom the accord was alleged as made, to have been a joint trespasser (apart from the allegation of the declaration to that effect), the plea must have been insufficient in any event. Bloss v. Plymale, 3 W.Va. 393.
b. Belligerent Rights as a Plea to Trespass. --Belligerent rights having been conceded by the national government to the confederates, in the late civil war, it is the duty of the judiciary of this state to recognize the same principle, as now embodied in the constitution and acts of the legislature, in actions against belligerents for acts done in conformity with the military authority and under a military order. In such actions the plea of belligerent rights is admissible. Carskadon v. Williams, 7 W.Va. 1.
Pleas of belligerent rights must allege, specifically, all matters necessary to show that the defendant acted in conformity with military authority and under a military order. This case expressly overrules the numerous previous decisions of the court to the contrary effect, such as Hedges v. Price, 2 W.Va. 192; Echols v. Staunton, 3 W.Va. 574; Lively v. Ballard, 2 W.Va. 496. Carskadon v. Williams, 7 W.Va. 1.
See the West Virginia Constitution of 1872, § 20, art. 8, and ch. 36, § 5 et seq. of the Code of 1899, and the cases of Peerce v. Kitzmiller, 19 W.Va. 564; White v. Crump, 19 W.Va. 583; Williams v. Freeland, 19 W.Va. 599; Griffee v. Halstead, 19 W.Va. 602; Peerce v. Adamson, 20 W.Va. 57, and Harness v. Babb, 22 W.Va. 315, affirming the constitutionality thereof, except that in so far as the legislative acts attempted to authorize the setting aside of final judgments, on petition supported by affidavits, they were unconstitutional as not providing for due process of law. But a bill in equity to enjoin the former judgment on the grounds provided by the constitution and statutes was not open to this objection.
The case of Kyger v. Roberts, 27 W.Va. 418, decided that the cause of action to recover back money paid on a war trespass judgment, arose on the adoption of the constitution of 1872, the section of which bearing on the subject operated ex proprio vigore, without the aid of any legislation.
c. Duress.
As Justification for Trespass.--It is a good defense to an action of trespass, for seizing and carrying away the property of another, that the defendant acted under duress; and that he did the act complained of involuntarily, and under reasonable apprehensions of serious bodily harm and injury if he declined to comply with the demands of the force compelling him to commit it; which demands he could not reasonably avoid. Cunningham v. Pitzer, 2 W.Va. 264.
But if the plaintiff offers evidence tending to show that the defendant might have avoided the committing of the trespass by any reasonable means, such as escape or concealment, it will then become incumbent on the defendant in order to escape from liability, to show that he had no reasonable means of escaping from the force or fear after they were applied to them, and before the committing of the trespass. Cunningham v. Pitzer, 2 W.Va. 264.
d. Justification by Officers under Lawful Orders.
Officer Acting under Order of Court Having Jurisdiction May Plead Same to Action of Trespass.--In trespass for breaking and entering plaintiff's close, a plea that the county court made an order requiring defendant, as surveyor of a highway, to open that part of the road from the mouth of a certain lane to J. T.'s, to intersect the road where it formerly did, and that in the execution of that order, he committed the supposed trespass in the declaration mentioned, as he lawfully might, plaintiff replying, that the land whereon defendant committed the trespasses was not, at the time when, etc., a public road or highway, either by an order of the county court, or long usage; on general demurrer to the replication, is good, and the replication naught. Yeager v. Carpenter, 8 Leigh 454; Price v. Holland, 1 Patton & H. 289, 299. See monographic note on " Sheriffs and Constables" appended to Goode v. Galt, Gilm. 152.
Lands in Possession of Commonwealth--Claimant Enters and Is Ousted by Officers--Officers May Justify.--If the commonwealth is in actual possession of land, an individual claiming the same, cannot enter upon that possession, but must resort to his petition of right, and, if he enters, and is ousted by actual force, by the officers or agents of the commonwealth, having lawful orders from the execution to do the act, he cannot maintain trespass against them. Young v. Gooch, 2 Leigh 596.
" It is certainly well-settled law, that a party having title to the possession may enter upon it, and defend that entry in an action of trespass against him; and if so, where he uses no force, he may also justify his entry in an action of trespass, though he may have used force, for which he may be prosecuted criminally." Young v. Gooch, 2 Leigh 596.
e. Abatement of Nuisance.
Trespass for Destroying Mill Dam.--A partial obstruction of a public highway is an abateable nuisance, and trespass does not lie for destroying a mill dam, not erected in the position authorized by the inquisition under which it was established, which partially obstructed the public highway. An issue joined upon the question of whether the obstruction was partial or entire is immaterial, and ought to be set aside and a repleader directed. Dimmett v. Eskridge, 6 Munf. 308.
f. Public Necessity. --It is a good defense to an action for pulling down a house in a town, that it was done to arrest the spread of a fire, where it was inevitable that the house would take fire and be consumed, if it was permitted to stand; and that it was inevitable that if it took fire and was consumed, it would spread the fire to other houses; but not if it might have been prevented taking fire by the use of the means within the power of the parties pulling it down; or if the use of those means would have prevented its communicating fire to other houses. Beach v. Trudgain, 2 Gratt. 219.
Trespass for Destroying Mill Dam. --When Liability for Trespass Attaches.--Parties pulling down a house in a town to arrest the spread of fire, are responsible for the damages thereby sustained by the owner, if the house might have been prevented taking fire by the use of the means within the power of the parties pulling it down. Beach v. Trudgain, 2 Gratt. 219; Amick v. Tharp. 13 Gratt. 564, 570.
g. Recaption of Property. --If a declaration in trespass charges the defendant with taking a horse from the plaintiff's possession, but not his property, and with stopping his wagon and team, the residue of the horses being the plaintiff's property, a plea which avers that this horse was geared with the others, that the plaintiff's wagoner (the plaintiff not being present) endeavored to carry off the defendant's said horse, by driving his team violently, and that the defendant stopped the team to retake his horse, using no more force than was necessary for that purpose, is a good plea, the defendant being justified in this stopping the team for that purpose. Hite v. Long, 6 Rand. 457.
III. TRESPASS IN ITS CRIMINAL ASPECT.
A. STATUTE OF CRIMINAL TRESPASS. --Va. Code, § 3729 (1887) originally Supp. Rev. Code, ch. 226, § 1, p. 280; Code of W.Va. (1899), ch. 145, § 27, (giving a form of indictment).
Construction of Statute--Willful Trespass.--This has been uniformly construed to be a statute against willful trespass. State v. Porter, 25 W.Va. 685; Campbell v. Com., 2 Rob. 791; Dye v. Com., 7 Gratt. 662.
An indictment, under this statute, must allege that the property taken away by the defendant, belonged to another person; and that the taking was " knowingly and willfully without lawful authority," in the terms of the statute. Com. v. Israel, 4 Leigh 675. See monographic note on " Indictments, Informations and Presentments" appended to Boyle v. Com., 14 Gratt. 674; monographic note on " Amendments" appended to Snead v. Coleman, 7 Gratt. 300.
The present form of the statute provides, " If any person unlawfully but not feloniously," commit the trespass, etc. Va. Code 1887, § 3759; Code of West Va. (1899), ch. 145, § 27.
Only a general or special property need be alleged by § 3996 of the Code of Va., 1887; Code of W.Va. (1899), ch. 158, § 7.
Construction of Statute--Killing of Dog.--The statute of 1822-3, ch. 34, § 1, does not authorize criminal prosecution for killing dogs belonging to another, nor is it an offence at common law. Com. v. Maclin, 3 Leigh 809; Davis v. Com., 17 Gratt. 617.
Construction of Statute--Ejusdem Generis.--The provisions of the statute of 1822-3, ch. 34, § 1, are not confined to property ejusdem generis with that specially there enumerated; and the circumstances of the property destroyed being at the time on the defendant's own land, does not take the case out of the statute. Percavil's Case, 4 Leigh 686, resolving a doubt expressed on the first point in Israel's Case, 4 Leigh 675.
Construction of Statute--Beating Another's Slave.--Indictment lies upon this statute (1822-3, ch. 34) against a free person for willfully and without authority injuring, by assaulting and beating, the slave of another. Howard's Case, 11 Leigh 631.
B. DOGS AS SUBJECTS OF TRESPASS BY STATUTE. --All dogs in certain counties and cities, and " all dogs listed for taxation in any county or city of the state shall be deemed personal property and may be the subject of petit larceny and malicious or unlawful trespass." Va. Code, § 3711, as amended by Acts of 1899-00, p. 1082.
The Code of W.Va. (1899), ch. 62, § 9a, VIII, provides that all dogs on which taxes are paid are hereby deemed property in the meaning of the criminal law. See this section, generally.
C. DESTRUCTION OF TOLL GATES. --One who was authorized by the county court to erect a toll gate on a county road, on condition of keeping road in order, refused to open gate on the demand of two persons, without their first paying usual toll. They broke down and destroyed the gate and passed without paying toll. Whether the court had authority to make the order or not, they were guilty of a misdemeanor under the statute (Code of 1873, ch. 188, § 28), and if the toll gate was such an obstruction on the highway as could be regarded as a nuisance, they could only be justified in removing it peaceably, and not in destroying it. Smart v. Com., 27 Gratt. 950.
D. INDICTABLE TRESPASS AT COMMON LAW.
Trespass Quare Clausum Fregit.--Though the mere breaking and entering the close of another, is not a misdemeanor, yet if that entry is attended by circumstances constituting a breach of the peace, it will become a misdemeanor for which an indictment will lie. The going upon the porch of another man's house armed, and from thence shooting and killing a dog of the owner of the house, lying in the yard, in the absence of the male members of the family, and to the terror and alarm of females in the house, is a misdemeanor, for which an indictment will lie. Henderson v. Com., 8 Gratt. 708.
For Taking of Horse--Must Amount to Breach of the Peace.--An indictment at common law, for taking a horse " unlawfully and injuriously," the usual form with force and arms being also used, does not describe the act as one that constitutes such a breach of the peace as to be indictable. Israel's Case, 4 Leigh 675.
E. ACT DONE UNDER BONA FIDE CLAIM OF RIGHT. --A defendant cannot be convicted of a trespass where the act complained of was done under a bona fide claim of right, and evidence of a verbal contract to convey to the defendant the land on which the alleged trespass was committed, though not admissible to show title, is admissible to show the bona fides of defendant's claim. Wise v. Com., 98 Va. 837, 36 S.E. 479; Campbell v. Com., 2 Rob. 791; Dye v. Com., 7 Gratt. 662; Ratcliffe's Case, 5 Gratt. 658.
F. OUTLAWRY. --A person indicted for a trespass with force and arms, may be prosecuted to outlawry. Com. v. Hale, 2 Va. Cas. 241.
Return on Capias.--The regular return to a capias alias or pluries, in an outlawry proceeding, is " not found." " No inhabitant" is incorrect. Com. v. Hale, 2 Va. Cas. 241.
Return of Sheriff to Exigent--Name of Coroner.--After the defendant has been exacted the fifth time the coroner should pronounce the judgment of outlawry, and the sheriff in his return to the exigent ought to state the name of the coroner by whom the outlawry was pronounced. Com. v. Hale, 2 Va. Cas. 241.
Return of Sheriff to Exigent--Capias Utlagatum--Errors in Record--How Taken Advantage of.--If the return to the exigent shows that judgment of outlawry for a trespass has been pronounced by a coroner by name, the court will, on motion, award the writ of capias utlagatum without looking back to the record to see whether there are not errors in the preceding process. Of those errors, if there be any, the defendant may avail himself, on his appearing by virtue of the capias utlagatum or otherwise. Commonwealth v. Hale, 2 Va. Cas. 241.
Exigent--Return--Failure to Show Judgment Pronounced.--If the return to the exigent does not show that judgment of outlawry has been pronounced by the proper coroner, a certiorari may be awarded by the court, directed to the sheriff and coroner, requiring him to certify the judgment of outlawry more fully. Commonwealth v. Hale, 2 Va. Cas. 241.
Code of 1887 (Va.) abolished the proceeding of outlawry. But it still exists in West Virginia. See Code (1899), pp. 1000, 1007.