Harrison v. Leach , 4 W. Va. 383 ( 1870 )

Brown, President.

This was an action of debt on a promissory note for money, brought by the plaintiff Leach, for the use of William Dickinson, executor of ¥m. Dickinson, deceased, against the defendant Harrison, administrator of William Erskine, deceased. The defendant Harrison tendered an affidavit under the act of February 28th, 1865, and asked that it be filed in the cause. The affidavit stated affiant’s loyalty, and the disloyalty of Leach, as prescribed in the statute. The defendant then asked the court to require the counsel of the plaintiff to disclose for whose use the suit was prosecuted, and that the said party should then be required to take the oath of expurgation as prescribed, on pain of having his suit dismissed. The court refused to let the affidavit be filed, or to make the orders requiring the disclosure, or expurgation, or dismiss the cause. And to this refusal of the court the defendant, Harrison, excepted, and alleges the same here for error.

As to the construction of the act, it is to be observed that it is an act in derogation of the common law, and in its nature an act of confiscation, which, though belonging to the extreme rights of war, is defensible in principle only when the reasons or necessity for its enactment exist. It should not therefore be enlarged in its operation by construction beyond its express terms. 1 Rob. Prac., (old,) and cases there cited. The record states that the plaintiff Leach sues for the use and benefit of the executor of Wm. Dickinson, deceased, and the affidavit also states the. same thing; but also in a subsequent part, states affiant’s belief that the suit is prosecuted for the use gv benefit of the plaintiff Leach; and then states that affiant believes that the person for whose use or benefit the above action is prosecuted, has heretofore aided and abetted the so-called confederate states, &c. It is difficult, if not impossible, to say with certainty who was the party who so aided and abetted. Was it Leach, or Dickinson’s executor? If the latter, the act did not apply. It was the person for whose use and benefit the above action is prosecuted, and it is stated to be for the use and benefit of Dickinson’s executor, and also for the use and benefit of Leach. It is probable the latter was intended, but in a case of ambiguity, when it may be either of the two, it would seem that the party setting up the de^ fense, to’defeat a just debt, ought to be held to state a case with the utmost precision and certainty, such as is required in pleas in abatement, not- certainty to a common intent, nor certainty to a certain intent in general, but certainty to a certain intent in every particular. I think, therefore, that the affidavit was materially defective, and properly excluded.

The judgment should be affirmed with damages and costs to the defendant in error.

The other judges concurred.

Judgment affirmed.