Campbell v. State

delivered the opinion of the court.

This case involves the construction of the act of November 13th, 1863, entitled, “An act for the forfeiture of prop*174erty in this State, belonging to the enemies thereof.” This act was passed in the midst of a war which involved in its issues the existence of the State, and the lives, property and liberty of its people. It bears on its face the evidence of the fact that it is a war measure; and since its provisions are new and extraordinary it should not be loosely interpreted nor improvidently executed.

The title states the object of the act. It is to provide for the forfeiture of property in the State, belonging to the enemies thereof. The third section makes it the duty of the circuit court, upon a proper case made, to appoint a commissioner to take possession 'of, collect and administer the estate of such enemy pursuant to the act. The court is of opinion, that on a motion to appoint such commissioner, based upon any proper evidence, such as the affidavit of a witness, the suggestion of the attorney for the State, the presentment of a grand jury, or the proclamation of the Governor, the court should award a rule or summons against the person alleged to be an enemy of the State, and whose estate is sought to be committed for that cause to a commissioner, requiring such person within a reasonable time to appear and show cause, if any he can, against the motion: stating in such rule or summons, with reasonable certainty, the facts alleged to constitute such person an enemy of the State within the meaning of said act; which rule or summons should be executed as required by chapter 170 of the Code of Virginia of 1860.

In default of such service, an order of publication should be awarded, as therein provided. And it would seem most proper that the questions of fact alleged in the rule or summons, should be tried by a jury.

And it appearing from the record that no day in court was given to the plaintiff in error, to make his defense on said motion; nor do the facts appear from the record, which the statute requires to constitute him an enemy of the State within the meaning of said act; and because it is not sufficient that the record states generally the conclusion from such facts, that the, party was an enemy of the State, the *175said judgment of tlie circuit court of Brooke county is erroneous and should be reversed, and the cause remanded to that court for further proceedings to be had therein in conformity with the principles indicated in the foregoing opinion.

Judgment Reversed.