4 W. Va. 496 | W. Va. | 1871
A. G-. Pendleton, who sued for the use of John Ballard, brought an action of debt against James Barton and Willis Barton, in the circuit court of Monroe
On the 2d day of October, 1868, the cause was dismissed, because A. 0. Pendleton failed to take and file in the papers of the case, the test oath required of him.
The case is brought here on supersedeas, and the first question for consideration is as to the sufficiency of the affidavit filed by the defendant Willis Barton.
A defendant who seeks to avoid the payment of a just debt, by requiring a plaintiff to take what is commonly called the suitors’ test oath, must himself strictly comply with every requirement of the statute.
The acts of March 1st, 1866, [Acts 1866, p. 130j, requires’ all defendants who require plaintiffs to take the oaths prescribed by the act of 1865, themselves to first take the same oaths which they require plaintiffs to take. The act of February 28th, 1865, p. 66 acts of 1865, and the act of February 11th of the same year, p. 21 of same acts, require any plaintiff, who claims to be a citizen of the State, to make an affidavit that he will support the constitution of the United States and the constitution of West Virginia, and
The-affidavit filed by the defendant Willis Barton, contains no oath of this sort, and is therefore, for this reason, if not objectionable in an||flUfer particular, insufficient to require the plaintiff to take^Hs oath. Nathaniel Harrison, adm’r, v. Smith, Rhodes & Co., infra; Same v. Leach, infra.
There are other defects in the affidavit, but it is unnecessary to refer to them, as the acts under which the proceeding was had are not now in force, and when the case is remanded no proceedings can be had under them.
It is claimed here that the court below erred in setting aside the order submitting the case to arbitration. It appears from the face of the order complained of, that the parties were all in court when it was made, and while it does not appear that it was made by consent, it does not appear that any objection was made to it at that time, so that this court must presume it was properly made.
The order dismissing the case will have to be reversed, with costs to the plaintiff in error, the case reinstated upon the docket, and remanded for further proceedings to be had therein.
Order reversed.