Harrison v. Leach

• Decision Date: 31 January 1870
• Court: West Virginia Supreme Court
• Parties: Nathaniel Harrison, adm'r, v. William Leach, use, kc. February 28th, 1866,

4 W.Va. 383

Nathaniel Harrison, adm'r,

v.William Leach, use, kc.

February 28th, 1866,

Supreme Court of Appeals of West Virginia.

January Term, 1870.

1. The act of February 28th, 1866, in relation to oaths by suitors, being in

derogation of the common law, should not be enlarged in its operation by construction beyond its express terms. And a party who seeks to avail himself of the provisions of the act, ought to be held to state a case with the ut0most precision; such as is required in a plea of abatement, i. e., certainty to a certain intent in every particular.

2. A case in which the affidavit under the act was held to be insufficient.

This was an action of debt brought in the circuit court of Kanawha county, to March rules, 1867, in the name of "William Leach, who sues for the use and benefit of William Dickinson, executor of William Dickinson, deceased," against Nathaniel Harrison, administrator with the will annexed of William Erskine. At the April term, 1867, the defendant tendered the following affidavit: "State of West Virginia, Monroe County, to wit:

"I, Nathaniel Harrison, administrator with the will annexed of Wm. Erskine, dec'd, the defendant in the above named suit, do solemnly swear, that I have good cause to believe, and do believe, that the person for whose use or benefit the above suit is prosecuted, has heretofore aided and abetted the so-called confederate states of America and the rebel State government at Richmond, in hostile action against the United States and this State; that I never voluntarily gave aid or comfort to persons engaged in armed hostility against the United States, the reorganized government of Virginia or the State of West Virginia, by coun- tenaneing, counseling or encouraging them therein; that I never sought, accepted nor attempted to exercise any office or appointment whatever, civil or military, under any authority or pretended authority hostile or inimical to the United States, the reorganized government of Virginia, or the State of West Virginia; that I never yielded any voluntary support to any government or pretended government, power or constitution within the United States, hostile or inimical thereto, or hostile or inimical to the reorganized government of Virginia, or the State of West Virginia, and that the cause of action in this case arose prior to the 1st of April, 1865, and that the real beneficiary in this suit is the said Wm. Leach, and that the transfer to Wm. Dickinson, executor, &c., as I verily believe, was made subsequent to the acts of February 11th, 1865, and 28th February, 1866, and were intended as an evasion of the same. Witness my hand and seal, this 23d day of March, 1867.

N. Harrison, "adm'r with will annexed of Wm. Erskine, dec'd.

" Subscribed and sworn to before me, this 23rd day of March, 1867. Cyrus Newlon,

"Notary public, Monroe county, W. Va."

And asked that the same should be filed, and that the plaintiffs should be required to take certain oaths, in the above mentioned acts described. To the filing of which affidavit, and the requiring of the affidavits on the part of the plaintiff, the plaintiff objected, and the objection being referred to the court was not allowed to be filed, and judgment was rendered for the amount of the note sued on.

The defendant excepted to the refusal of the court, and brought the case here...