4 W. Va. 126 | W. Va. | 1870
All the questions raised in this case, except one, have been determined adversely to the defendants, in the case of Caperton vs. Martin, infra.
The point in this case not so determined, is raised on the defendant’s third bill of exceptions. The plaintiff had introduced a witness, Meadows, who stated that, on the — day of August, 1862, he went to the house of the plaintiff with the, defendant Taylor, under the direction of Hawkins Steele, a member of the provo'st guard for Monroe county, but that Taylor belonged to the military company of Captain Thurman; that said Taylor took from the house of said plaintiff a portion of the goods found therein, and converted them to his own use.
The defendants, after introducing evidence tending to show that the said Steele had no authority to give such directions, introduced one - Skaggs as a witness, by whom they proposed to prove that on the day on which the
On the motion of the plaintiff’s counsel, the court excluded the witness Skaggs, and the defendants excepted.
And this exclusion is assigned here as error, upon the ground that the evidence offered was part of the res gestæ. Allen v. Duncan, 11 Pick., 310; Law v. Cross, 1 Black., 539; and Beaver v. Taylor, 1 Wall., 642, are cited as authorities.
In Pool v. Bridges, 4 Pick., 378, it was said that, it is difficult to lay down any precise general rule as to the cases in which declarations are admissible as part of the res gestee, and when they must be rejected as the mere assertions of the party. The same is repeated with approval in the case of Allen v. Duncan, 11 Pick., 310; and in Beaver v. Taylor, 1 Wall., 642, it is said that, it is perhaps not possible to lay down any general rule as to what is part of the res gestee which will be decisive of the question in every case, in which it may be presented by the ever varying phases of human affairs.
It had been stated that the defendant Taylor took the goods from the plaintiff’s house, and converted them to his own use. It was a material fact whether they were taken by him on his own account and converted to his own use, and wholly unconnected with the other defendants, or whether it was done by him under the authority and direction of Hawkins Steele, another defendant, acting as a member of the provost guard, under the orders of defendant Caperton, who was provost marshal under the so-called confederate government.
The going, taking, and converting, were the principal facts. The other facts were the character in which he acted,
I think, therefore, that the judgment should be reversed, with costs to the plaintiffs in error, and the cause remanded to the court below for further proceedings in conformity with the views above indicated.
Judgment reversed.