The Arkansas advocate., 1835-03-06
.pKANsAs SUPERIOR COURT:
 July Term, 1884. MAss4cK II. LANES, Appellant
.an RltzzARp. AppeIIee.

I4coB BUzzARD, aPPeiiee.
 .4ppcat from Lqtayettesefre'i't Court.
 roe,Ntos DELIVERED BY JOHNSON, J.
 This is motion to dismiss the appeal in .,;s case. (which is an action on assumpsit) made r by the appellee--ihe plaintiff in the eonrt below--on the ground that the appel laot inc defendant in fle court below, fail adbv himself or agent, to make the af1ida- '.;t reouired by law, at the tlme of taking ,be % aopea. The 54th section of ihe stat nte ,a under the title of ' Judicial Proceed ;ars.r in Geyer's Digest, provides that if any 9 person shall feel himself aggrieved by inc final decree or judgment, given in any of inc circuit courts, iii any cause wherein inc matter in dispute exceeds, exclusive ot coqts, the sum or value of one hundred dol lars. it shall and may be lawful for such per son. at the term in which judgment Is gisen, to enter his or her appeal to.the Superior Court; Pi.opided, That no appeal shall be gTanted to defendants in actions of debt, or in actions upon the case, for note, bill, hook account, or assunlpsit, unless the de- fendant, or his agent, shall make affidavit or affirmation, stating that he does not appeal for the purpose of delay or yexation, but that he believes himself aggrieved by the iudgmento of the inferior courts
 If the pfoviso just recited, be in force, the motion to dismiss this appeal must pre- vail, as the appellant made no affidavit or affirmation in the circuit court, at the time he prayed the appeal. But il is contended that the proriso requiring the affidavit, is re- pealed by subsequent legislation. MT. Geyer, the compiler of the Digest, has marked 1t as repealed by the 55th section of the same tile, and in this he was, no doubt, correct. But the 55th section has been subsequently repealed, by the 9th sec- ton of an act supplementary to the seYe- ral acts establishing courts of justice, and regulating judicial proceedings, passed De- eember 23d ISIS. - Pamph. GctS, 36.
 By the repeal of the 55th section, all the 54th section was thereby revived. By the repeal of the repeating statute, the original statute is revived. This principle of the common law is to be found in its earliest records, and is an undisputed doctrine. The Bishop's case, 12 Co. Rep. 7--l Blaekstone'S Com. 90.
 The organic laws of Missouri and this Territory, have been referred to for the pur- pose of showing that an appeal is given by these laws, and that II is not competent to the local legislature te restrict the rights of appeal. Ne think t IS within the power of ihe legislature of the Territory to prescribe the conditions upon which an appeal may be taken, provided they are not manitestly un- reasonable. The condition required ID the pronso of the 54th section, IS far from be- ing unreasonable or improper, but on the contrary, IS consistent with the soundest policy.
 II is further contended by the counsel for the appellant, that an appeal without afida- yit is given by the second section of all act !" in addition to an act entitled an act to amend an act, regulating the mode of judl- eial proceedings in certain cases," and ex- tending certain powers to the General Court, passed 2lst Dec. ISIS. We are clearly of opinion, after attentive consider- alton of this act, that 1t is applicable to Chancery suits alone, and not 10 actions Or suits at law.
 It IS the opinion of the Court, that this appeal must be dismissed on the grounds of failure of the appellant, the defendant Tn the Court below 10 make by himself or his agent, the affidavit required by law, at the lime of praying the appeal.
 Il IS therefore considered by the Court, that the appeal in this case be dismissed, and that the appellee have, and recover, against the appellant, the costs in this Court about ihis appealexpended, and have execution thereof.
 True copy from tie record.