Bloss v. Plymale.

• Decision Date: 31 January 1869
• Citation: 3 W.Va. 393
• Court: West Virginia Supreme Court
• Parties: Hiram Bloss v. John Plymale et al.

3 W.Va. 393

Hiram Bloss

v.John Plymale et al.

Supreme Court of Appeals of West Virginia.

January Term, 1869.

1. A party injured by co-trespassers may sue either oneof 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 non-joinder of debtors, the privilege is not extended to tort feasors, 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.

2. 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 beegiven one only, must be a technical release, under seal, expressly statin the cause of action to be discharged without conditions or exceptions and no release will be allowed by implication.

3. A release, not under seal, of one joint trespasser, or a satisfaction and dr charge of the liability against him, which shows on its face that it wa 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.

4. A plaintiff in an action of trespass may sue all, or any, or either of the

alleged trespassers, and he is entitled to full satisfaction, but to only one satisfaction; and if the damages have been in part satisfied by payment or compromise with some of the defendants, the plaintiff may still proceed against those who remain on the record. Therefore, it is not error for a receipt to one of the defendants from the plaintiff) for a sum already received on account of the alleged trespass, to be given in evidence to the jury, that such sum may be deducted in the finding.

5. B. brought an action of trespass against P. and others. Before pleas filed, B. executed a receipt for a sum of money to J., one of the defendants, in satisfaction of "all debts, dues and demands" to date. B. also dismissed the action as to three other defendants before trial. Defendants pleaded not guilty and accord and satisfaction to J., who was alleged in the plea to be a joint trespasser. On the trial the defendant read the summons and declaration in evidence. Held:

1. That it was not error to permit the summons to be read in evidence, for it was proper evidence to show the existence and date of the suit and who were original parties thereto.

2. That it was not error to permit the declaration and orders of dismissal to go in evidence for they were parts of the record. But the allegations of the declaration being put in issue by the plea of not guilty, which threw the burden of proof on the plaintiff, it could not be used by the defendants to prove or sustain the plea of accord and satisfaction. The onus probandi to sustain the plea of accord and satisfaction being on the defendants they could not use the allegations of the declaration after having denied the same by the plea of not guilty.

3. The allegations in the plea of accord, that J. was a joint trespasser, which was denied by the general replication, could not be proved by the allegations in the declaration that he was such joint trespasser with them, but which was denied by the plea of not guilty, and the court should so have instructed the jury, if required; but as the plaintiff asked no such instructions, but chose to rely upon his general objection to the evidence, there was no error in permitting the declaration to be given in evidence.

4. But inasmuch as there was no other evidence in the cause showing J. to have been a joint trespasser with the other defendants/which was indispensable to sustain the plea of accord alleged to have been made with him as one of the joint trespassers, the verdict for the defendants on that point was without evidence to warrant it, while the evidence on the general issue showed the defendants guilty, and should have been set aside.

"6. No material fact can be supposed to have been omitted from a bill of exceptions where it is certified that, "the foregoing is all the evidence mate-. rial in the cause," and such certificate is sufficient.

Hiram Bloss brought an action of trespass on the case in the circuit court of Wayne county to September rules, 1865, against John Plymale, Jesse Spurlock, Hurston Spurlock, William P. Shurlock, Hugh Bowen, M. J. Ferguson, James Ferguson, Achilles M. C. Davis, Edmund Osborn, Samuel Wellman and John Jarrell, Jr. The cause came on the docket and was continued at the December term, 1865. At June term, 1866, an order of dismissal was entered as to John Jarrell, Jr., by the plaintiff; and subsequently, before trial, the cause was discontinued as to Samuel Wellman, Hugh Bowen and Samuel Osborn. At the June term, 1866, the defendants pleaded not guilty, on which issue was joined. They also pleaded accord and satisfaction, on which issue was joined. This latter plea alleged that the plaintiff executed the following paper:

"Received of John Jarrell, Jr., seventy-five dollars, it being in full of all dues, debts and demands up to this date. March 22d, 1866. (Signed) Hiram Bloss."

which was executed after the suit was brought and before the day of pleading, and that the trespass having been jointly committed by the defendants and Jarrell, Jr., the acceptance of the 75 dollars above mentioned, was in full satisfaction and discharge of the supposed trespasses and all damages and costs. They' offered a further plea of being in the service of the so-called Confederate Government at the time of arresting and imprisoning the plaintiff, which plea was demurred to and the demurrer was sustained. *

On the trial, which was had at the June term, 1866, the defendants read in evidence the receipt of the plaintiff to Jarrell. He, also, to maintain the issues upon his part, introduced various witnesses, who proved that in the year 1861, at the time the rebellion was being organized against the United States in the county of Wayne, a call was made upon the militia of said county, to assemble at Wayne court-house, by the defendant, Hurston Surlock; that in pursuance of such call a large number of people assembled at said court-house, and among them the defendants, John Plymale, Jesse Spurlock, William P. Spurlock and James Ferguson; and the defendant, John Plymale, then and there made a speech to the people, and advised them to arm themselves, and move down toward the Ohio river for the purpose of driving the 5th Virginia regiment (which was a Federal regiment) across the Ohio river; that he said to one of witnesses he wanted some money to buy powder for the boys, and that he used these words to those assembled: ' Boys, ride their fat horses, and eat their fat cattle and hogs;' that he also, in the same year, administered to several persons the oath to support the Southern Confederacy, and said to one of the witnesses that unless he took said oath, his property would be confiscated; and to another, whose son went in the rebel army, that it was right for his Bon to be there; that ho left his home in said county, in 18G1, and did not return until 1865, after the surrender of General Lee; that the defendants, Jesse Spurlock and William P. Spurlock were at said meeting with guns, and actively participated therein; that in the year 1861, at various times they were seen with their guns, and started with a party of armed rebels to attack the Federal troops at Guyandotte; that the said Jesse declared his purpose to fight said troops as long as he had a drop of blood in his body'; that iu the fall of 1861, the said Jesse and William P. Spurlock were arrested and taken to Wheeling, where they were kept for some six or eight weeks, when they returned home; that from that time until the end of the war, neither of.them were ever seen in arms; that parties of rebel soldiers were several times at the house of said Jesse after that period; that iu 1862 one of the witnesses, who was a prisoner in the hands of the rebels, was taken to his house, and when they got there they found a dinner prepared, and the whole party ate their dinners; that the said Jesse was at home at the time, and the provisions prepared were much more than were necessary for his family, it being a small one; that in April, 1863, after the arrest of the plaintiff, by the defendant Hurston Spurlock, and the party under his command, he was taken in their custody to the house of the said Jesse, who was at home at the time; and that all the party ate supper there, and remained some three or four hours, when they left; that in April, 1863, the plaintiff was arrested by the defendant Hurston Spurlock, and a party of rebel soldiers under his command, at his own house, in the night time; that he was taken thence to the house of the defendant Jesse Spurlock as aforesaid; and thence to the house of the defendant Achilles M. C. Davis, where the party was joined by the defendant Milton J. Ferguson, who was a colonel in the rebel army and in command of the whole party there assembled; that after remaining a few hours, the whole party left on their way to Richmond. While at Davis' the rebel troops were gathering in there, and that frequently during the war such troops were at his house, and sometimes ate there; that said Davis, with s others, in 1861, was arrested by one of the witnesses, when they appeared to be hiding from him, and that the witness administered to them all the oath of loyalty to the United States and the reorganized government of Virginia; tha' the defendant James Ferguson was also at the gathering a Wayne court-house, in 1861, with a gun; that in 1862, he took a lot of cattle in the direction of Tazwell county, Virginia, and that he told one of the witnesses that he intended to pasture part of the cattle and kill the balance for the soldiers; and while the plaintiff was on his way to Richmond, in custody as aforesaid, they saw James Ferguson at Jeffersonville, in the said county of Tazwell, where he shook...