
    Charleston.
    Samuel P. Hawver et al. vs. Abraham Seibert and wife.
    January Term, 1871.
    1. In a declaration in a suit on a lost bond, it is alleged tliat the bond was given to one of the plaintiffs, who, by the affidavit filed of the loss of the bond, is alleged to be the wife of the other plaintiff and it is held that a sufficient interest appears in the female plaintiff, to justify the use of her name as a plaintiff, without further averment to disclose her interest.
    2. The inhabitants of Greenbrier county were not declared to be in a state of insurrection against the United States by the President’s proclamation of August 16th, 1861, but were specially excepted from the operation thereof, and consequently from the effect of the act of congress of July 13th, 1861. Therefore, commercial intercourse with them was not inhibited ir¡ September, 1862, when the bond in this case was executed. Nor was the contract in this case against the policy of the common law as to trading with rebels, because it was not a voluntary act upon the part of th* plaintiff.
    3. The case of Winternitz & Son v. Hyland and Hamer, 3 W. Va. Rep., 461, cited and approved.
    This was an action of debt brought in the circuit court of Nicholas county, to February rules, 1868, on a lost bond executed by the defendants to the female plaintiff, on the 29th day of September, 1862, the defendant Hawver'being principal in the bond, and the other defendants his surety. To the declaration there was a demurrer and three pleas ir¡ bar. The demurrer was overruled by the court. The first plea was payment, and to which the plaintiffs replied generally. The second and third pleas, which set up substantially the same defenses, alleged that the consideration of the bond sued on, was cattle sold during the late rebellion, by the plaintiffs, to the defendant Hawver, the latter being a rebel and adhering to the so-called confederate states, and the plaintiffs being loyal citizens residing within the military lines and under the protection of the government of the United States; that the sale and delivery of said cattle took place in the county of Nicholas, a county within the loyal territory of the United States, and that the plaintiffs knew at the time of the sale and delivery of said cattle, that the said defendant was a rebel, and was purchasing said cattle for the purpose of taking them within the lines of the so-called confederate states, for the aid, comfort, and subsistence of the insurgents and disloyal inhabitants, who wrnre then waging a war of rebellion against the government of the United States. To these pleas the plaintiffs also replied generally.
    In May, 1870, a trial was had and verdict and judgment for the plaintiffs. On the trial the plaintiffs offered an affidavit of the execution of the bond and its loss, and also further proved its execution about the last of September, 1862, to the female plaintiff, who was the wife of plaintiff Abraham Seibert.
    The defendants, to sustain the issue on their part, proved that about the last of September, 1862, and during the temporary occupation of the Kanawha valley by the so-called confederate forces, and three or four days before any of said forces came into the county of Nicholas, the defendants, Hawver and Odell, the latter acting as agent of the former, purchased of the plaintiff, Elizabeth Seibert, a certain number of cattle, (the plaintiff, A. Seibert, being absent), in consideration of which the said Hawver, as principal, and Odell, as his surety, executed the bond sued on; that at the time said purchase was made and said bond executed, the defendant, Hawver, resided in the county of Greenbrier, a county, which during the war, was under the civil and military control of the so-called confederate states, excepting occasional raids by the military forces of the United States, and was once held by General Crook’s command of the last named forces for some three or four weeks; that defendant, Hawver, was a rebel, holding allegiance to the so-called confederate states, and had been purchasing cattle for the support of the armies and inhabitants of the so-called confederate states; that the defendant Odell, and plaintiffs, were loyal citizens of the United States, and held allegiance thereto, and resided in the county of Nicholas, whose territory after the winter of 1861, with the exception of occasional raids by the military forces of the so-called confederate states, was under the civil and military control of the United States; that the purchase was made and bond executed at the residence of the plaintiffs, in Nicholas county, at a time when said county was not occupied by either army; that the plaintiff, Elizabeth Seibert, must have known that defendant Hawver was a rebel; was told at the time of the purchase that he was going to take the cattle to Greenbrier county; that said Elizabeth Seibert said she did not want to sell the cattle, but remarked that she preferred selling them for money, that would answer her husband’s purposes when the country was settled, to running the risk of them being taken from her for nothing by the rebels; that defendant Hawver drove the cattle to Green-brier county, and afterwards sold them to the. so-called confederate authorities.
    This being substantially all the evidence in the case, the jury rendered a verdict for the plaintiffs, and the defendants, by their counsel, moved the court to set aside the verdict and grant a new trial, because it was contrary to the law and evidence, which- motion the court overruled, and rendered judgment for the plaintiffs. They also moved the court to set aside the verdict of the jury, on the grounds that the same was contrary to the instructions of the court, which instructions were in these words :
    “ The court instructs the jury that, if they believe, from the evidence in this case, that at the time of the sale of the cattle by the plaintiff, Elizabeth. Seibert, to the defendant, S. P. Hawver, or bis agent, J. W. Odell, the said Elizabeth Seibert was a loyal person residing in the county of Nicholas, and that the said Elizabeth knew at the time.of said sale that the said Hawver was a rebel, and purchasing said cattle for the purpose of taking them to the county of G-reenbrier, and within the territory of the so-called confederate states, and were to be used in aid of the rebellion, that then, notwithstanding the county of Nicholas may have been temporarily under the military control of the rebel army, they must find for the defendants.”
    The defendants brought the case here for review.
    Hon. J. M. McWhorter, Judge of the circuit court of Nicholas county, presided on the trial of the case.
    
      Snyder for the plaintiffs in error.
    
      Price for the defendants in error.
   Moore, J.

It sufficiently appears from the writing obligatory, as set out in the declaration, that Elizabeth Seibert had such interest therein, as justified the use of her name as a plaintiff, and it was not necessary for other or further averment to disclose her interest.

The joinder of the husband, as co-plaintiff, was not error. 1 Chitty’s PL, side page 80. The court properly overruled the demurrer to the declaration.

The inhabitants of Greenbrier county were not declared to be in a state of insurrection against the United States, by the proclamation of President Lincoln, issued August 16th, 1861, but were specially excepted from the operation thereof, and consequently from the effect of the act of Congress of July 13th, 1861. Having, therefore, a loyal status, commercial intercourse with them was not inhibited at the date of the said writing obligatory, and therefore the said contract does not fall under the ban of the said act of Congress and proclamation; nor was it against the policy of the common law, because the evidence shows that the contract was not a voluntary transaction on her part, even if she knew she was trading with an enemy, nor do the facts show that she knew Iiawver was a rebel. The whole case indicates an unwillingness, on the part of Hawver, to meet an obligation which, in fact, in honor, and in law, he is bound to do, as appears from this record.

Upon these reasons, and upon the principles indicated in the cases of The Ouachita Cotton, 6 Wallace, 521, and Winternitz & Son v. Hyland & Ramer, 3 West Va., 461, I think there was no error in overruling the motion for a new trial; and the judgment of the court below should be affirmed, with costs and damages.

The other judges concurred.

Judgment aeeirmed.  