Burkhartv. Jennings

2 W. Va. 242

• Court: West Virginia Supreme Court
• Decided: July 15, 1867
• Status: Published

Opinion

Brown, President.

The attorney for the plaintiffs in error, having in the argument of the case, expressly waived the consideration of all the other questions made, or that might arise on the record, except the four points stated in his printed brief, the first of which is, the alleged error of the court in overruling the demurrer to the first count of the declaration, I have not felt called on, therefore, to look further into the record than was necessary to understand and determine the errors complained of.

The first count was intended to present a case of malicious prosecution, and is liable to the objections taken to the declaration in the case of Spengler vs. Davis, 15 Grattan, 382. In that case, the declaration alleged that Spengler “wrongfully aud without, good cause,” sued out an attachment. The court said, “The declaration is irregular,, in that it charges that the attachment was sued out wrongfully and without good cause, instead of maliciously and without probable caused’ The court then reviewed the cases decided in Virginia. In the case of Ellis vs. Thilman, 3 Call, 3, (which was a case for malicious prosecution) the allegation was that the prosecution was malicious and without any just cause. In the case of Young vs. Gregorie, Id., 446, (case for the illegal suing out, &c., of an attachment,) it was alleged that the proceedings were had maliciously and without any legal or justifiable cause. And in Kirtley vs. Deck, 2 Munford, 10, (case for a conspiracy in preferring, &c., a malicious prosecution for a felony), the allegation was, that the defendants falsely and maliciously conspired, &c., to prefer a false and malicious prosecution, &c., but there was no averment that the prosecution was without probable cause. In each of these cases it was held that the words without any just cause, in the first case mentioned, and without any legcd or justifiable cause, in the second, could not be received as equivalents for the words which the law required.

These cases were decided in the absence of some of the provisions of our present statute of jeofails, which provides that, after verdict, no judgment shall be stayed for any defect whatsoever in the declaration or pleading, whether of form or of substance, which might have been taken advantage of by demurrer, and which shall not have been so taken advantage of; which was first enacted at the revisal of 1819, and was afterwards re-enacted in 1849, with slight modifications, not necessary to be noticed here. Code of 1849, p. 680.

This statute cures defects after verdict which might have been taken advantage of on demurrer, but which were not so taken advantage of; but leaves the question still to be ascertained whether the defect in the first count of the declaration, is such matter of substance as can be taken advantage of on demurrer.

the statute of jeofails, before the revisal of 1819, it was provided, that the court on demurrer, shall not regard any other defect or imperfection in the declaration, than what was specially alleged in the demurrer, unless something so essential to the action, as that judgment according to law and the very right of the cause could not be given. Dec. 4th, 1789, ch. 28, 13 Stat. at Large, 37; 1792, ch. 76, R. C.; 27 Eliz., ch. 5; 4 and 5 Ann, ch. 16.

It was under the influence of this statute the cases reversed were decided. Its effect was to cut off special demurrers, but not general. And it was held that ou a general demurrer every advantage might be taken, that could be done, on motion in arrest of judgment, and no other. Lyons, J., in Roe vs. Crutchfield, 1 Hen. and Munf., 367; Baird vs. Mattox, 1 Call, 264, and see Collins vs. Gibbs, 2 Barr, 899; Bodwell vs. Parsons, 10 East., 363-4; Kennaird vs. Jones, 9 Gratt., 189.

According, therefore, to these decisions, made in view of the statute of jeofails, above cited, in actions for malicious prosecution, it was matter of substance, and essential that the declaration should allege the acts to have been done maliciously and without probable cause: and it is equally clear that the words wrongfully and injuriously, without good cause, as used in the declaration at bar, are not equivalents for the words which .the law required. I also think the doctrine too long and well settled in Virginia, and this State, to be disturbed by the cases cited in the argument from Alabama and Louisiana, where they seem to have departed from the common law, under the provision of their statute. I think the first count, therefore, fatally defective.

If there had been only a general demurrer to the declaration, containing several counts, the demurrer should have been overruled and judgment entered on the good count, if any such in the declaration. Roe vs. Crutchfield, 1 Hen. and Munf., 364; 8 Leigh, 93. But where there are two or more counts, and there is a demurrer to each, each count must he regarded as a separate declaration, and must he disposed of accordingly; [same case]; Kennaird vs. Jones, 9 Grattan, 187. And in the case at har, there were several counts, and separate demurrers to each, and the first being defective, vdiatever may he thought of the rest, the demurrer to the defective count should have been sustained. 'For a legal definition of probable cause, and the policy of the' law in requiring it, see case of Manns vs. Dupont, 3 Wash., C. C. R., 31, and opinion of Daniel, J., in Spengler vs. Davis, 15 Gratt., 388. The latter says: “We may, I think, properly define justifiable probable cause in cases of the kind to be, a belief by the attaching creditor, in the existence of the facts essential to the prosecution of his attachment, founded upon such circumstances as supposing him to be a man of ordinary caution, prudence, and judgment, were sufficient to induce such belief.”

The second objection is to the admission of evidence to show that the defendants were instigated by malice in suing out the attachment complained of in the first count of the declaration.

■ It would seem to follow as a necessary consequence, that if the first count was bad, for want of the averment of so important and essential a matter as malice and probable cause, in suing out the attachment, that it would not be admissible to prove such a state of facts, not alleged in the pleading, and thus recover for what was not charged. That would be to violate the principles of pleading, and work confusion in judicial proceedings.

The third objection raises the question of the validity of the Virginia act of February 28th, 1866, to give effect to the acts of persons acting as officers without authority of law in 1861. Ho act of the Virgiuia legislature passed after June 20th, 1863, — -the date of the formation of the State of 'West Virginia, — can have effect as law in the latter. Within the territory of West Virginia, her laws alone prevail in harmony with the laws of the Union.. Had the act in ques-

Vol. ii. 17 tion emanated from the legislature of West Virginia, it might have presented a very 'different question.

The fourth objection is to the refusal of the court to give the instruction asked by the defendants below touching the validity of the official acts of the defendents assuming to exercise the functions of officers under the authority of the rebel governments. The instruction is so involved and confused as to render it uncertain and difficult to determine what proposition of law it propounded, and was rather cal-culatee! to confuse and mislead the jury than enlighten them upon the law of the case. I think, therefore, for that reason, if there had been no other, that it was rightly refused. .It seems to involve a diversity, as well as a confusion of views; but if I am able to extract from it any distinct proposition which it is sought to propound as law, it is this:— That the ordinance of the convention of the loyal people of Virginia, of the 13th of June, 1861, was not competent, proprio vigore, to vacate the offices of the persons, respectively, who as justice, issued the attachment, as judge ordered the sale, and as sheriff executed the levy and order of sale. And the reason assigned is, that they were officers of a defacto government, then at war with the government of the United States and. the government of Virginia, and that the said de, fado government then held possession and control of the county of Berkeley, in which the said attachment issued and the proceedings under it were had.

It has long been a fundamental doctrine with the people of Virginia, that the powers of government spring from the people, and may he exercised only for their happiness and safety; that magistrates are the trustees and servants of the people, and at all times amenable to them. This was declared, in substance, by the Grand Assembly, as early as the time of the English commonwealth in 1652, in 1658, and in 1659-00, and again by the convention of June, 1776; was reaffirmed by the convention of 1830, by the convention of 1851, and again by the convention of June,'1861. 1 Hen. Htat. at Large, 372, 503, and 531; Virginia Bill of .Rights, Code 1860; Declaration of People of Virginia, (ordinance of convention, 1861); and also by the people of West Virginia in their constitution, in June, 1868.

The convention of 1861 put forth the ever memorable declaration, of the people of Virginia,,destined to be as enduring as the history of the momentous events which gave it birth. Fit compeer of the preamble to the constitution of June, 1776. It announced the solemn fact that the convention atBichmond had usurped and exercised the powers of government to the manifest injury of the people, and to the peril of their liberties; that it required them to wage war against the Union and sister States; to transfer their allegiance to an illegal confederacy of rebels and submit to its edicts, and in conjunction with the execution, had instituted a reign of terror, suppressed the free expression of popular will, and made elections a mockery and a fraud. It continues: “We, therefore, the delegates hero assembled in convention to devise such measures and take such action as the safety and welfare of the loyal citizens of Virginia may demand, having, maturely considered the premises, and viewing with great concern the deplorable condition to which this once happy commonwealth must be reduced unless some regular adequate remedy is speedily adopted, and appealing to the Supremo Eider of the Universe for the rectitude of our intentions, do hereby, in the name and on behalf of the good people of Virginia, solemnly declare that the preservation of their dearest rights and liberties, and their security in person and property, imperatively demand the reorganization of the government of the commonwealth, and that all acts of said convention and executive, tending to separate this commonwealth from the United States, or to levy and carry on war against them, are without authority and void; and that the offices of all who adhere to the said convention and executive, whether legislative, executive or judicial, are vacated.”

The convention then immediately proceeded, almost in the very language of the Grand Assembly of 1658, to “vindicate” and restore the constitutional and loyal government of the State, and thereupon appointed a governor, lieutfen-ant governor, attorney general, executive council and other officers, and provided for the assembling of the legislature, &c. The sovereign powers wielded by the government thus “vindicated and restored,” and its successors, have fully and finally triumphed, and the usurpations, as declared and denounced, under the names of the governments at Richmond, have disappeared in fact, and never had any existence in law.

It would he marvelous indeed for a court whose powers were derived from the same source and exercised under the same authority with the declaration in question, to be found, without the weightiest reasons, questioning the validity and competency of that sovereign power. In other words, to decide itself a court and no court in the same breath. If that ordinance could not vacate the offices in question, then no law emanating from any human power on earth could; for the power that made the declai'ation was supreme in that particular. It had the highest motives and the most solemn duty to wield it to that end, and it has expressed it in the clearest and most positive terms, nor left the result contingent upon any event that might by chance fail. There cannot in the eye of the constitution and law, he two governments in a State, as supposed in the instruction, and both he lawful, though in conflict. If the one he lawful, the other must be unlawful; the one sustained by the ¡oatriotic allegiance of the people, the other, in war propped for a time by the treason of its adherents. Such was the case in Rhode Island, Luther vs. Borden, 7 How., 1. Such the case in Virginia, Hood et al. vs. Maxwell, 1 West Va. Rep., 219. Such the case in Kentucky, when the legislature passed an act establishing a new court of appeals, to be in lieu of the old court under the constitution. They elected the judges, amongst the ablest men in the State, who organized the court with its clerk and other officers, and took jurisdiction of appeals from the circuit courts and solemnly heard and determined the causes and certified its judgments and mandates to the courts below, which recognized the action and obeyed the order,by entering the same as the judgment in- the case on its records, and proceeded to carry it into execution. But the old superseded constitutional court of appeals, af-terwards took the jurisdiction of the same case, reheard it, and declared the usurped action a nullity and the pretended court and judges to he neither court nor officers in the eye of the law, but simply individuals attempting- what they had no lawful right or authority to do, — in other words, a usurpation. 1 J. J. Marshall, 206.

These pretended officers in Berkeley are alleged in the instruction to have acted in the premises as officers under the authority of the government of Virginia, and the Confederate States, so-called. By those terms the parties intend to refer, not to the true government of Virginia, but the usurped government at Richmond and its confederate, so-called.

blow, it will scarcely be pretended that that usurpation possessed, or could confer on its subaltern officers, powers more legitimate and effectual in the eye of the law administered by the courts of the established and lawful government, than the lawful legislature of Kentucky conferred on its new court of appeals, so-called. The same doctrine has been held in Arkansas where an execution issued since the war on a judgment rendered during the war, in a rebel State court, when there were no loyal courts or loyal State government existing in the State. The execution was quashed as issuing from a void authority. Filkins vs. Hawkins. Am. L. R. 1866.

Krom the foregoing I conclude that the declaration and ordinance propio vigore vacated the offices in question, and all other offices in Virginia whose incumbents adhered to the rebellion. A great mistake has been made in supposing that the parties embarked in the rebellion retained their offices till disfranchised by some judicial proceeding, or office found, executive proclamation or other like mode according to the course of the common law, and upon notice, to ascertain their criminality and eject the incumbents, as is ordinarily the case in times of peace.

But it has been wholly forgotten, though urged in the argument in defence of a rebel trespass, by the same learned counsel in another cause, how Lord Hale said there was a difference to be observed, in the view to be taken of things in time of war or public insurrection or rebellion, and in times of peace. What would be thought of the wisdom of a convention assembled under the circumstances and surrounded with the portents and perils of that of June, 1861, that should leave its offices in the hands of its foes to be lawfully wielded against it and its friends, till it should judicially investigate and determine,by its tribunals, ih every particular case, on notice the thousands of officials who were guilty and were in fact the rebellion par excellence f In that case rebel officers would have to be tried and disfranchised by rebel officers, by virtue of an ordinance and authority which both repudiated and were warring to subvert, and that too, while two-thirds of them could not have been reached nor restrained by any judicial tribunal, on account of the rebellion which their course aided. Thus by increasing the necessity for their removal they would permanently secure the lawful' exercise of their official powers, while they wielded them with effect against the government and courts charged with their removal, with the consoling assurance in the meanwhile that if they succeeded in their treasonable enterprise they were safe, and if they failed, their official acts would be upheld and sustained by the courts they failed to destroy. Such a construction reminds one of the language of the frogs to the hoys in the fable:— “ It may bo sport to yon, but it is death to us.” Hut were it possible to entertain a serious doubt of the validity and effect of the ordinance aforesaid in vacating the offices iu question, it is incontrovertible that the parties by embark ing in the rebellion and adhering to the rebel government and holding their offices and wielding their powers under the authority and in the interest of the rebel government, thereby ceased to be officers of the loyal governments just as effectually as they ceased to acknowledge its authority and wield its powers; in other words they not only forfeited their offices but abdicated and abandoned them.

The question in another form has also been determined-in another case at the present term, viz: Hawver vs. Seldenridge, et. al.

In any and every view of the case, therefore, in which it has been presented, it is clear that the pretended officers were, in point of law, not officers either de jure or de facto, nor can they be known or recognized as such by the courts, until the political departments of the government shall acknowledge the validity of the so-called government of which they profess to be and were a component part.

Nor is the result at all changed by the averment that the rebel government under which the defendants assumed to act, held forcible possession at the time of the county of Berkeley when the occurrence happened. For unlawful offices and unlawful officers, doing unlawful acts under an unlawful government in an unlawful insurrection and civil war could not be legitimate by such unlawful force. Hood et al. vs. Maxwell, 1 W. Va., 219; Hedges vs. Michael; Williams vs. Freeland; Nadenboush vs. Sharer; and Hawver vs. Seldenridge, (decided at this term).

I think, therefore, the judgment of the court below should be reversed with costs, the verdict set aside and the cause remanded to the circuit court, to be there proceeded with in conformity to the principles above indicated. And that the defendant in error have leave,-if he desire it, to amend his declaration in the court below upon payment of the costs thereof, and the plaintiffs in error like leave, to plead de novo.

Judge Maxwell concurred.

Judgment Reversed.