The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1867-07-30

Brown, on Saturday last, Judge Max
well concurring:
NADENBoUscH IL RIDDLE,
SHARER & MARTIN.
Sbarer & Martin the defendants in
error, obtained a rule or order Ttst, In
this cause, at a former term, in pursu-
anCe of the acts to prevent the prosecu-
tion of suits and suing out of process
by persons engaged in rebelliou-dis-
missing the case unless the plaintiffs in
error should take the oaths prescribed
and file them in the papers OF the
cause-or show cause against the same.
This rule or order niSi was based upon
the affidavit of only one of the defend
ants in error, filed at the time the order
was made.
And at the present term the plaintiffs
in error showed cause, and by their
counsel moved to discharge the rule
upon the following grounds, viz:
1st. That by the act In relation to
oaths OF suitors, passed March l,
1866, it was necessary to sustain
the rule, that the atfidavits of both the
defendants In error should have been
filed in support of the rule, and since
that was not done, when the rule was
allowed, 1t could not be aided by filing
the affidavit of the other defendant In
error, at the present term, and after the
objection had been taken to the suth-
cheney of the former to sustain theFule.
End. That the judgment complained
of as erroneous was rendered subse-
uuent TO ths 6rst day of April, 1866, and
that by the provisions of the said act
of March lst, 1866, the act OF February
2Sth, 1865, did not apply to them; for
the reason that the cause of action was
the error in the judgment, which error
was committed after the 1st day OF
April, 1865, and therefore the cause oi
action arose after that day.
In reference to the first ground, II
may be remarked that the acts mem
toned are In PdTi mdteyiG, and should
be considered together In giving CON
struction to each of them. By the
second section of the former, suit
would not be dismissed II only one oi
several plaintiffs took and filed the oath
required. .-
And by the act of February IL, 1865,
section q, upon q kindred subject, 1t is
provided that a judgment or decree
against several defendants may be
opened and rehearing had upon an
affidavit of any one OF the defendants,
as required by that act. -
And by the first section of the act of
February %, 1855, a suit would be dis
missed upon the preliminary oath OF
one of several defendants, unless the
plaintiffs, or one of them, should take
the OAths required
The first act on the subject requiring
suitors to take the oath OF loyalty, was
the act of May 18th, 1882, by which It
was provided that before any person
or persons should be entitled TO sue out
any civil process In any court OF record, ,
or before justice of the peace such
person or persons should first take and
subscribe the oath OF allegiance pre-
scribed by the act.
This act was passed early in the war,
and was intended to debar those the
use of the courts, who were dIsloyal
and seeking their overthrow. But In
practice IL was soon found that its re-
quirements were SO much neglected, q,
till the neglect was taken advantage of
by the defendants, that 1t became trap
to the unwary, and the loyal were often
turned out of court on the motion of
the dislOyal.
The next act on the subject was the
act of February 2Sth 1855. With that
act there were two grounds of dtssatis-
faction, which soon resulted in Its modi-
fication by the Legislature. They were
mainly these: LIST. That like the pre-
ceding act, If 1t did not operate to dis
miss the suits of loyal men, at the in
stance of the disloyal, it enabled rebels
to dismiss the suits of rebels after hos
tilities had ceased. I'd. That it de-
barred rebels from suing in the courts
on future as we'll as past transactions.
From this review of these acts 1t
would seem to have been the In
tention of the Legislature that no
trial should be defeated in the
one case. where one OF the plaintiffs was
loyal and took the oaths required. And
that in the other case rehearing should
not be defeated where one of the de-
PENDANTS was loyal and took the oath
required. But that the suit should be
dismissed where the defendants or any
one OF them, took and filed the prelimi-
nary oaths OF loyalty, unless the plain
tifs, or some one of them, should take
and file the oath of loyalty required OF
them. r- .-rr...
This view of the case seems to be
most oonsonant with the language OF
the act of March l, 1868, as well as with
the intent of the legislature. That act
says: "Nor shall any plaintiff be re-
quired to take any of the oaths pre-
scribed by said act until the defendant
or defendants shall take and file with
the papers of the cause, in addition TO
the oath required by said act for de.
PENDANTS, the same oath which plain
tiffs may be required to take under said
act.p .anf
The last named act does not repeal
the former laws farther than 1t oper.
ateS a modification thereof Its object
was mainly 10 remove the grounds oi
| dts ats faction to the former laws, and
actions arising after the 1st day oi
April, 1855, and their improper use by
those who had been engaged in rebel
lion TO defeat the claims of those In like
condition.
conclude, therefore, that the inten-
! ton of The legislature and the language
| of the acts concur in the construction
that requires the preliminary affidavit
OF the Defendants, or any one of the
+ Defendants, to warrant dismissal ofthe
suit upon the failure of the Plaintiff
or some one of them to take and hle the
oaths required of them. a..
The first objection therefore taken by
the plaintiffs in error to the rule cannot
be sustained.
Upon the second ground OF objection,
1t may be remarked, that while a su.
persedeAs may we'll be, In one sense, a
/ Continuation of the original suit, as
explained by the Court In the case OF
: COhens Us. Virginia; yet, in another
I sense, and in the sense of the acts un-
\ der review, 1t is manifest that it is to be
regarded as new suiti and the error
\ in the Judgment complained of Is Il
I cause OF action within the meaning oi
the statute. And since that arose after
the first day of April, 1865, the act oi
February 2sth, 1855, does not apply tO
| this case. --G
The rule therefore should be dis.
\ charged, and the order mist set aside al
the costs of the defendants in error.
|
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