
    Jackson v. Webster.
    Decided, January 15th, 1820.
    1. Pleading and Practice — Plea of Non Est Factum. — A plea of non est factum ought in general to be received by the Court, notwithstanding the defendant has previously pleaded payment: especially, if it be offered under circumstances shewing it is not intended for the purpose of delay.
    
      2. Same — Same—Affidavit to. — The affidavit to the plea of non est factum, is not rendered defective by inserting the words, “to the best of the defendant’s knowledge and belief.”
    3. Oaths — Legallnferences.—No man can be required to swear positively, (if at all,) to legal inferences.
    In an action of Debt upon a single bill under seal, in the County Court of Harrison, the defendant Stephen Jackson, on the 21st day of June 1816, pleaded payment; whereupon the office judgment was set aside; the declaration having been filed in March preceding. On the 20th of November following, the cause being called for trial, a motion was made by his Counsel for leave to file the plea of non est factum, with an affidavit, thereto annexed, that the said plea was true “to the best of the defendant’s '"'knowledge and belief;” it appearing that the plaintiff’s Counsel had notice of this motion on the Saturday before the November term commenced; and it likewise appearing (being admitted by both parties,) that, at the August term, a motion was made for the admission of the same plea, but was refused by the Court, upon the ground that the plaintiff’s Attorney was then absent upon public business; the plaintiff being in Court, and making the objection in proper person:— to the admission of the said plea at the November Term the plaintiff objected; which objection the Court sustained, and rejected the plea; whereupon, the defendant filed a bill of exceptions, stating these facts, and setting forth the plea and affidavit in h;cc verba.
    A verdict, was found for the plaintiff upon the issue previously joined; and judgment was accordingly rendered; which being affirmed by the Superior Court, the defendant appealed to this Court.
    Heigh for the appellant.
    Wickham for the appellee.
    
      
       See principal case cited and its decision discussed in Quarrier v. Peabody Ins. Co., 10 W. Va. 520.
    
   The following was the Court’s Opinion, delivered by

JUDGE ROANE.

The plea of non est factum offered to the County Court, being one which goes to the merits, ought, in the opinion of this Court, to have been received. It ought to have been received for the farther reason, that it was not offered for the purpose of delay. It is not only verified by the oath of the appellant, but was offered at a time when a continuance was already certain, in consequence of the absence of the appellee’s Counsel. Nor is the objection to the affidavit, arising from the insertion of the words, “to the best of his knowledge and belief,” sufficient to exclude the plea. It is true the affidavit must be positive, as to the facts contained in the plea, or on which it is founded; but these words do not render it otherwise, when taken in relation to facts resting on the knowledge of the party. They may possibly have been inserted in this case, in reference to the conclusion of law involved in the averment that the bill in question “is not his *Deedand, if so, are not improperly inserted. No man can be required to swear positively, (if at all,) to legal inferences.

We are of opinion, that our Act requiring the oath in question, while it need not work a change in the forms of pleading, may be satisfied by an affidavit stating and verifying the facts only, which are relied on. We must make this construction in subordination to the principle aforesaid. But, in the case before us, utile per inutile non vitiatur. Tho’ the party may have gone farther than was necessary, in swearing to the conclusion of the law also, the facts are sufficiently verified. The same oath which applies to those conclusions, applies also to the facts on which they are predicated.

We are therefore of opinion that both judgments should be reversed, and the plea in question admitted.  