Caperton v. Ballard

• Decision Date: 31 January 1870
• Citation: 4 W.Va. 420
• Court: West Virginia Supreme Court
• Parties: Allen T. Caperton v. William A. Ballard, Adm'r

4 W.Va. 420

Allen T. Caperton

v.William A. Ballard, Adm'r

Supreme Court of Appeals of West Virginia.

January Term, 1870.

1. The question of "belligerent rights" and pardon by the President of the United States, determined as in the case of Caperton vs. Martin, infra.

2. When a plea, replication, or subsequent pleading concludes to the country the adding of the similiter being all that is necessary to complete the issue, the omission to do so is not error after verdict which will avail in the appellate court. But it is otherwise when the plea, replication, &c, con eludes with a verification, and without anything more, a trial is had and a verdict or judgment rendered without any issue on such plea or replication.

3. G., as provost marshal of the confederate authorities, for Monroe county, ordered a confiscation and sale of the property of B. Prior to the sale, on the application of one of the sons of B., (the latter having abandoned his home and gone into the federal military lines), C. promised to postpone the sale, but did not do so, and subsequently told the son that he had met L. an assistant provost-marshal for the county, who told him, C, that he, L, was going to leave the county, and could not conduct the sale if it were postponed, whereupon C. had directed him to proceed with it. On the trial of an action for the illegal seizure and sale of the property, after the foregoing had been proved, C offered to prove the contents of a letter to L. directing him to postpone the sale, and also proof that the letter was mislaid or lost. Held:

That the evidence was properly excluded by the Court below.

4. The judge of the circuit court stated during the trial, on a motion to offer certain testimony which was objected to, certain facts as being within his own knowledge, and upon objection that such statements were made in the presence of the jury, he instructed the jury that the statements he made on the motion were not to have any effect on them as to any questions of fact in the case; and were instructed to disregard them. He also told counsel that he made the statements simply to further explain his ruling on the motion to exclude the evidence. Held:

That the statements thus made were not sufficient ground for reversing the judgment

5. The granting of letters of administration by the county court of Monroe county, in 1863, was an act of a tribunal in rebellion against the United States, and hence illegal and void, and it was not necessary to set aside such letters of administration by a competent court in order to give effect to an administration granted by a competent tribunal.

6. An executor de son tort is bound by, and will be held responsible for, his acts; and those knowing his true character may likewise be bound by their dealings with him. But such acts cannot bind the rightful executor, and others interested, except in so far as his acts are proper and legal, unless they have assented to, or acquiesced in, his illegal acts.

7. At the sale in this case, J. A.B., one of the distributees of B., the decedent, purchased a portion of the property, and subsequently, in 1863, the net proceeds of the sale was paid him as administrator appointed by the county court of Monroe county, in 1863, by order of the confederate authorities. And it is held that, in legal contemplation, the purchase of J. A. B. must be regarded, in the absence of evidence, as a purchase for the father, he being alive at the period of the sale, or that the property was in fact returned to or came into his possession, as a sale to any other person, and consequently, it was a legal conversion of the property by the defendant to his owa use.

This was an action of trespass on the case for illegal seizure and sale of the property of the plaintiff's intestate, William Ballard, deceased, by the defendant, Allen T. Caperton, brought in Monroe county. The summons was returnable to June rules, 1866. The declaration alleged that the defendant, on the 20th day of December, 1862, unlawfully seized the cattle, horses, agricultural implements, grain, &c, of the plaintiff's decedent, and converted the same to his own use, and caused, ordered and procured others to dispose of the same to their own use, &c.

The defendant filed six special pleas. The first plea alleged that the plaintiff was not the administrator of the decedent. The second plea, after craving oyer, alleged that administration had been granted to one John C. Ballard, by the county court of Monroe county, in February, 1868. The third plea was the general issue. The fourth plea was substantially the plea of "belligerent rights," and alleged that the defendant was acting as provost-marshal for the confederate authorities, in Monroe county, and that the property was confiscated in accordance with the laws and practices of such authorities. The fifth plea was a pardon for all offenses committed by the defendant during the rebellion, granted by the President of the United States, The sixth plea purported to be accord and satisfaction, and alleged that the net proceeds of the sale of the property had been paid to the administrator of the decedent, on the 20th day of July, 1863, and had by him been accepted in full satisfaction of the grievances, &c.

The plaintiff replied to the first plea, that he was the lawful administrator of the decedent; to the second, that the letters of administration to John C. Ballard were granted by a court in rebellion against the United States, and were null and void; to the third, generally. He demurred to the fourth and fifth pleas. He replied specially to the sixth plea that, at the time of the payment, July 20th, 1863, the same was not made to the lawful administrator of the decedent, nor to any one else having authority to receive the same, and concluded to the country, but no similiter appears to have been added. The circuit court sustained the demurrer to the fourth and fifth pleas. A trial was had in July, 1867, and a verdict rendered for the plaintiff for 1, 258 dollars.

The plaintiff, William A. Ballard, obtained letters of administration on the estate of the decedent, in the circuit court of Monroe county, in April, 1866, as appeared from the evidence.

The first bill of exceptions taken by the defendant during the trial, disclosed that, after the plaintiff had introduced testimony tending to show the seizure and sale of the property, by one Wilson Lively, assistant provost-marshal for the county of Monroe, and that the goods were so seized and sold by the order of the defendant, then provost-mar- shal for Monroe county, and also tending to show that John C. Ballard, a son of the plaintiff's intestate, had applied, prior to the sale, to the defendant, to postpone the sale, and he had promised to do so, but had not done so, and that after the sale he had met the defendant who admitted that he had promised to postpone the sale, but afterwards meeting with Lively the latter had informed him that he was about to leave the county and could not conduct the sale if it was postponed, and he had then directed him to proceed with the sale. Whereupon the defendant, for the purpose of showing that he had directed a postponement of the sale, offered to prove the contents of a letter addressed to Lively in his lifetime, by the defendant, in his character of provostmarshal, in which he claims to be able to show that he had directed a postponement of the sale, together with proof of the loss of the letter. The court refused the permission to prove the contents of this letter, and the defendant excepted. The second bill of exceptions was taken to a statement made by the Judge presiding when the case was tried, in his remarks on overruling the motion of the defendant to prove the contents of the letter mentioned in the first bill of exceptions. The Judge stated that, in 1862 and 1863, he resided only three miles from the provost-marshal's office of Monroe county, and to some extent was both historically and practically familiar with the duties and proceedings of that office, and that in deciding the application under consideration, the court could not close its eyes to what it thus knew; that the office was well organized and conducted with strictest...