Shepherd v. McQuilkin

Maxwell J. It is assigned as a cause of error, that the court below refused to give the instructions as asked by the defendant, Hmry Shepherd, and gave the instructions in a modified form, and that the court erred in giving the instructions given at the instance of the plaintiff below. The second and third instructions asked by the defendant [100] Henry Shepherd, and the instructions given in lieu thereof, mentioned in the defendant’s second and fourth bills of exceptions in the order they appear in the printed record, can not be revised by the court, as it does not appear from the bills of exceptions whether they were relevant or irrelevant to the cause before the jury, and until the contrary appears, it must bo presumed that the action of the court below was correct. Fitzhugh’s Fx’r. va. G. F. Fitzhugh, 11 Gratt., 308; 1 Crunch, 319; 2 H. & M., 363; 4 H. & M., 82; 3 Munford, 191; 4 Rand., 609; 5 Rand., 31. The first instruction asked by the defendant, Henry Shepherd, was given as asked, with the addition ot the following words by the court: “unless for other reasons and upon principles enunciated in other instructions given in this cause, they find him liable.” It is claimed that the addition of these words was calculated to mislead the jury, and that the instructions should have been given without it. I cannot see how it could mislead the jury. It seems to me that the only effect that the addition could have, was to prevent the jury from being misled, and that, therefore, it was properly made by the court. It is claimed that the court erred in giving the instructions asked by the plaintiff below, contained in the defendant’s third bill of exceptions. This instruction, in substance, told the jury that if the defendants, Henry Shepherd and John Shepherd, or either of them were present at the time the plaintiff’s goods were taken, participating, aiding and assisting in the taking, or countenancing and encouraging those who took them, or taking and receiving the goods, the one so present was liable to the plaintiff for the value of all the plaintiff’s goods then taken, with interest on such value from the time they were taken. I can see no error in this instruction. If a party would not be liable for a trespass under such circumstances, I can scarcely imagine a case in which he would be liable. It is expressly provided in the Code of Virginia, 1860, p* 782, sec. 14, that the jury may allow interest on the sum [101] found by the verdict, and fix the period at. which the said interest shall commence, and it cannot be an error therefore, that the jury were told that the defendants, if liable at all, were liable for the value of the property taken, with interest on such value from the time it was taken. The President concurred. Judgment aeeirmed.