Guery v. Kinsler

| S.C. | Aug 7, 1872

The opinion of the Court was delivered by

Moses, C. J.

The intention of the Legislature in the adoption of the 415th Section of the Code, (15 Stat., 516,) is apparent. It was to guard against a mischief which, but for its enactment, would have been the consequence of the Section which precedes it, providing “ that no person offered as a witness shall be excluded by reason of his interest in the event of the action.” While the living, of sane mind, were able to answer for themselves, there was no one to protect the estate of the dead, the insane or the lunatic, from the effect of testimony derived from their alleged declarations, without fear of direct contradiction. The mischief it was intended to prevent exists in all its force in the evidence sought to be offered in this ease, and if we could give further effect to the intention of the Legislature, by adding to the parties enumerated in the Section as those in whose favor it was to operate, without violating the rule which we feel bound to apply in the construction of Statutes, we would not hesitate to extend the provision to the relation in which this plaintiff stands to the bond in suit. In principle he is entitled to the protection which the Legislature has offered to those in terms included, and, if in its construction we could permit what is the apparent intention to supersede the other canons prescribed for the construction of Statutes, we would sustain the judgment of the Circuit Judge, and dismiss the motion.

The Section is in restriction of a general right, and we are not at liberty to extend it beyond its clearly expressed design. If there is doubt arising from any ambiguity of expression, it would be proper, if possible, to reconcile it with the intention of the Legislature, if that could be ascertained by the means through which Courts are permitted to reach it. Where, however, an exception is made by words of description, including only persons referred to as occupying particular relations, it would be transcending our authority, and usurping the functions of another department, to include others who, though they may be within the mischief, have not been so recognized, and protected by the enactment.

In Dunn vs. Reid, 10 Pet., 526" court="SCOTUS" date_filed="1836-02-18" href="https://app.midpage.ai/document/new-orleans-v-united-states-86005?utm_source=webapp" opinion_id="86005">10 Pet., 526, McLean, J., delivering the opinion of the Court, says: “ But where the language of the Act is explicit, there is great danger in departing from the words used, to give an effect to the law, which may be supposed to have been designed by the Legislature. Where the language of the Act is not clear, and is of doubtful construction, a Court may well look at every part of the Statute; at its title, and the mischief intended to be remedied in carrying it into effect. But it is not for the Court to say, where the language of the Statute is clear, that it shall be so construed as to embrace cases, because no good reason can be assigned why they were excluded from its provisions.” The whole law of construction in regard to the Section which it is contended must be enlarged to exclude the evidence sought to be introduced, is contained in the language above quoted, and it is useless to multiply authorities to the same end.

The party against whom the testimony is prohibited, in the language of the clause, must be “ prosecuting or defending the action as executor, administrator, heir-at-law, next-of-kin, assignee, legatee, devisee, or survivor of such deceased person, or as assignee or committee of such insane person or lunatic.” The plaintiff here sues in the character of a trustee, succeeding, by appointment, the original trustee, Pearson, now dead, and does not answer the description employed in the Act. He is in no way the representative of Pearson. It is claimed, in the argument for the appellee, that Guery, the plaintiff, is “ by operation of law within the word assigneebut it is not perceived how he can be so comprehended. He does not claim by, under, or through him. He could not rnainain an action on the bond by virtue of the Act of 1798, 5 Stat., 330, for that’ requires the plaintiff “to style himself, in the writ to be issued, the assignee of the obligee in said bond,” and on the trial he would be obliged to shew and prove his assignment. Guery, by his appointment, stood in the place of Pearson, holding the bond, not by reason of any transfer from him or his representatives, but as trustee under the will of Mrs. Brown, with all the rights which attached to the trust at its original creation.—See Davant vs. Guerard, 1 Speers, 242.

The New York Code contains a provision of the same character, though less extensive in the relations to which it applies. It has been held by the Courts of that State that its operation must be restricted to the parties named in it, and cannot be extended to embrace those who, though within its spirit, are not within its letter.—Hight vs. Sacket, 34 N. Y., 7 Tiff., 447; Wildey vs. Whitney, 25 How., 75; Buckingham vs. Andrews, 34 Barb., 434" court="N.Y. Sup. Ct." date_filed="1861-05-06" href="https://app.midpage.ai/document/buckingham-v-andrews-5460116?utm_source=webapp" opinion_id="5460116">34 Barb., 434; McCray vs. McCray, 12 Abb., 1.

The motion is granted, and a new trial ordered.

Willard, A. J., and Wright, A. J., concurred.