Stuart v. County of Greenbrier

GREEN, President, delivered the opinion of the Court: There is in this case no necessity to consider or decide the several preliminary questions, which have been raised by the appellant’s counsel. If they be all waived and the case be decided on its merits, the judgment of the circuit court must be affirmed; and it is therefore better to dispose of this case on its merits, and end finally the controversy between the parties. To the plaintiffs’ action two defenses are interposed by the defendant. One of them is a denial that the defendant is indebted to the plaintiffs; the other, that the plaintiffs’ action is barred by the statute of limitations. The plaintiffs’ right to recover is distinctly established by the evidence, if a contract made in 1862 by a county eourt within the Confederate lines and under the control' of the government of Virginia at Richmond is valid and binding on such county as at present organized, where the contract was made under the Virginia statute of May 9, 1862, authorizing counties to purchase salt to be disposed of to the people, and the salt was actually delivered. The Court of Appeals of Virginia has, after a most careful examination of this question reached the conclusion, that such contract is valid and binding on the county as now organized. See Dinwiddie County v. Stuart, Buchanan & Co., 28 Grat. 526. It is true that this decision was made by a «divided court. Judges Christian, Staples and Burke were of the opinion that such contract was binding; and Judges Anderson and Moncure were of the contrary opinion. Judge Christian delivered the opinion of the majority of the court, and Judge Anderson that of the minority. These opinions are both able and lengthy. They entirely exhaust the — 101 — subject; and there is no need to repeat what has been so well said. I have carefully examined these opinions, and I have reached the conclusion, that the views of the majority .of the court in that ease are sound, and that the county court of Greenbrier as now organized is bound by the contract made by the county of Greenbrier in 1862, and which it is now sued on, unless the right of the plaintiff to recover on this contract is barred by the statute of limitations. The contract sued on not being-under seal is barred in five years after the cause of action arose, unless the replications filed by the plaintiff remove the bar of the statute. These replications are in substance, first, that the plaintiffs were obstructed by war, insurrection and rebellion, from July 1, 1861, to July 1, 1865. This is not proven by the evidence; but if proven, could not have availed the plaintiffs, as more than ten years elapsed after July 1, 1865, before the institution of this suit; and as this appeared on the face of the plea, it might have been properly rejected by the court. The other replication is, that the plaintiffs, nor either of them, could make truly the affidavit prescribed by section 27 of ch. 106 of the Code of West Virginia. In cases where this replication is a valid reply to .the statute of limitations, it should conclude with a verification, for the reasons assigned in Huffman v. Alderson’s adm’r, 9 W. Va., 622. When this replication can be relied upon by a plaintiff, the defendant may confess and avoid it by rejoining, that he the defendant too could not make truly this affidavit; for unless he could truly make it, he could not, under the 10th section of ch. 136 of the Code of West Virginia, have ever had the plaintiff’s suit dismissed. But there is a much more fatal objection to this replication than this formal defect. Tor if it had properly concluded, it would have still been in this case no sufficient reply to the statute of limitations. It is based on ch. 28 of Acts of 1872-3. It was, decided in Huffman v. Alderson’s adm’r, 9 W. Va. 622, “That the purpose of this act was only to extend the time, — 102 — w^en the plaintiff was obstructed by the provisions of section 1 ch. 136 of the Code of W. Va. But when the gn^ ag this case, is brought against a corporation, the plaintiff, though he could not truthfully take the test-oath prescribed by section 27 of ch. 106 of Code of West Virginia, p. 562, could not have been obstructed. A careful consideration of this section and of section 10 of ch. 136 of Code of West Virginia, p. 645, leads me to the conclusion, that these provisions of the Code could not operate to prevent a corporation, though it had aided the Confederate government voluntarily, from obtaining a judgment against a party who could take the prescribed test-oath. Nor could they operate to prevent a party, who could not take this test-oath, from obtaining a judgment against a corporation, though it had never rendered any aid to the Confederate government. The last cited act expressly provides, “if the action or suit be prosecuted for the use or benefit of a corporation, no order dismissing the same shall be made.” And this Court held in The Bank of Virginia for the use of Isaacs, Taylor and Williams v. Handley et al., 14 W. Va. 832, that a replication to the plea of the statute of limitations, that the plaintiffs could not truly make the affidavit prescribed by section 27 of ch. 106 of Code of W. Va., could not avail the plaintiffs, though the suit was brought for the benefit of individuals, the corporation being the nominal plaintiff on the record. If a corporation be the plaintiff in a suit, by the express words of the statute above cited requiring that the plaintiff should take this oath, its suit was non-liable to be dismissed by the defendant, though he could take the test-oath. And even if this express provision had not been made, that a suit brought by a corporation should never be liable to be dismissed under this law, still we must have reached this conclusion ; for the act, section 10 of ch. 136 of the Code of W. Va., p. 645, provides that the defendant may require the plaintiff (not any agent of the plaintiff) to take this test-oath on pain of having his suit dismissed. — 103 — The words of the statute are : the suit shall be dismissed, “unless the person, for whose use or benefit the same is prosecuted, make this affidavit.” By the “person for whose use or benefit the suit is prosecuted” must be meant the individual person who is the substantial plaintiff. It could not mean a corporation, when it was the substantial plaintiff; fora corporation could not possibly take this or any other oath. This act in terms requires this oath to be taken by the substantial plaintiff personally ; and we have only to consider the character of the oath to see that the statute meant, what it said, that this oath must be taken by the plaintiff in person, and that it was not intended, that it might be taken by an agent of the plaintiff or any other person for him. This oath is set forth in section 27 of ch. 106 of Code of West Virginia, p. 562, and is very searching in its character. The form of the oath shows clearly, that the framers of it supposed that there would be a strong disposition on the part of those, who were required to take this oath, to prevaricate and evade its true meaning, if possible, and hence it is made very detailed and specific, to avoid such evasion. It is obvious, that if an agent or third party was permitted to take this oath according to his knowledge and belief, the searching character of the oath would be of very little avail to avoid evasion. How difficult, for example, would it be to convict any third person of perjury, if he swore that “the plaintiff never voluntarily gave aid or comfort to persons engaged in hostility against the United States.” It is true that the 10th section of ch. 136 -of the Code ot West Virginia p. 645, does not in express terms provide that a suit shall not by means of it be ever dismissed, when brought against a corporation as it does provide, when the suit is brought by a corporation. But it seems to me obvious, that this section was not intended in any manner to affect any suit brought against a corporation, though brought by a party who could not take the test-oath. This is not only indicated by the language used — 104 — in this section, but the same reasons which induced the Legislature to except from the operation of this law cases in which a corporation was plaintiff, must also operate to exempt from its operation cases in which a corporation is defendant. By this section, before a suit could be dismissed, not only the plaintiff (not his agent) but also the defendant (not his agent) was required to take this test-oath. The language of the statute is : “But such order of dismissal shall not be made until after the defendant or defendants shall have made and filed the same affidavit as those required of the plaintiffs.” This affidavit was designed to be made by the defendant personally. The reasons for requiring this affidavit to be made by the plaintiff’ are precisely the same as those which required the defendant to take it personally; and I can not doubt, that this law intended to require him to take this test-oath joersonally, before the suit should be dismissed. Where the law intended that the defendant might take an oath, or that his agent might take it for him, it was careful to say so in express terms. Thus when the defendant wished to require the plaintiff to take this test-oath, the statute in the beginning of this section provides that “the defendant, or one of the defendants, his agent or attorney, may make oath that he has good cause to believe, and does believe, that the person, for whose use the suit is brought,has aided or abetted the so called Confederate States,” &c. But when the defendant, before the suit is dismissed, is called on to take this test-oath, the language used is entirely different, and the statute says this test-oath must be made by the defendant (not by. his agent or attorney). This, it seems to me* shows clearly that before any suit could be dismissed under the provisions of this law, this test-oath must have been taken by the defendant personally; and as no corporation cau take an oath personally, no suit brought against a corporation could have been dismissed under this law, even if the plaintiff could not take this test-oath. This conclusion is strengthened, by the provisions of — 105 — ch. 106 of Code of W. Va., p. 561. Section 26 of this chapter provides, that a defendant, against whom on publication a judgment has been rendered in an attachment suit, may petition to have this judgment set aside and the case re-heard in a certain time; and section 27 provides, that when this petition is filed by a'n individual, it must be accompanied by this test-oath, but when filed by a corporation, it need not be accompanied by such test-oath. So, it would seem,, that these laws were not intended to be applicable to any case, in which a corporation was a party either as plaintiff or defendant. This was probably induced in part by the character of the test-oath itself, there being in it statements, which it would be strange to require a corporation to make, such for instance as that it “never sought, accepted or attempted to exercise the functions of any office or appointment whatever, civil or military, under any authority or pretended authority, hostile to the United States;” in part by the apparent necessity of requiring both the plaintiff and defendant personally to take this test-oath, where the law' was to be applied; and partly because ■ throughout this law the parties intended to be affected by this test-oath law are the substantial parties in interest in the controversy, and not the nominal-plaintiff or defendant; and in a suit by or against a corporation the substantia] parties in interest in the controversy are the stockholders and not the directors, or if a municipal corporation be the party, then the inhabitants of the municipality, and not the officials; and these real parties in interest, the stockholders or inhabitants, as the case may be, might some or even a majority of them differ from the directors or officials in their sympathies and conduct to the United States government, and then to apply these test-oath laws to a corporation plaintiff might operate to punish really stockholders or inhabitants, who had ever been true and lawful subjects of the State of West Virginia ; and to apply these laws to the case, where a corporation was defendant, might operate to protect from — 106 — some suits tbe representatives of so-called rebel stockholders or so-called rebel inhabitants. A large majority of tlie people of Greenbrier county may have aided, as doubtless many of them did, the Confederate States, and if these provisions in the Code could be applied to a corporation, such as the county court of Greenbrier, the effect would be to protect from this suit these so-called rebel inhabitants of Greenbrier, which certainly was not the purpose of these laws. My conclusion therefore is, that these test-oath laws in the Code of West Virginia have no application, when the plaintiff or defendant is a corporation ; and that these laws never threw any impediment in the way of the pros-cution of a suit, in which a corporation was either the plaintiff or defendant; and therefore in a suit against a corporation a replication to the plea of the statute of limitations, that the plaintiff could not take the test oath prescribed by the Code, is not a good replication under chapter 28 of the Acts of 1872-3, according to the principles laid down in Huffman v. Alderson’s adm’r 9 W. Va. 622, and in Ihe Bank of Virginia for use, &c. v. Handley, 14 W. Va. 831. In this latter case the same replications to the plea of the statute of limitations, that are filed in this case, were offered to be filed, and this court decided that they were properly rejected. The reasons assigned in that case for the rejection of two of them are equally applicable to this case; and the other replication, that the plaintiff could not truthfully take the test-oath, should have been rejected for the reasons above given. The failure of the court however to reject them, was an error not prejudicial to the appellant, and. of course furnishes no reason for reversing the court below. The evidence clearly established that the cause of action in this case had been long barred when this suit was instituted, and as no replications were filed which could remove this bar of the statute of limitations, the court properly rendered a judgment for the defendant. The judgment of the circuit court of June 13, 1876, — 107 — must therefore be affirmed; and the defendant in error must recover of the plaintiffs in error its costs about this suit in thisCourt expended, and thirty dollar damages. Judges Johnson and Moore concurred. Haymond, Judge, dissented from so much of the opinion and syllabus as holds that the contract was valid. Judgment affirmed.