
    Wheeling.
    
       Absent, HaubísoN, J.
    William T. Higginbotham vs. D. S. Haselden & C. P. Rohrbough.
    July Term, 1868.
    1/ A motion by the defendant in error for a rule nisi, requiring the plaintiff in error to take the suitors’ test oath, is not unreasonably delayed when made at a term before the ease, according to the rules of the court, could be called for hearing.
    2. The act of February 28th, 1865, in relation to oaths by suitors, applies to writs of error and appeal as well as writs of supersedeas.
    3. Parties obtaining writs of error, supersedeas and appeal, to judgments and decrees obtained since April 1st, 1865, are not required to take the suitors’ . test oath. Act of March 1st, 1866.
    A judgment was rendered in the circuit court of IJpshur county, on the 18th day of November, 1863, in 'favor of David Haselden and C. P. Eohrbough, partners, against William T. Higginbotham, Isaac J. Post, John S. Huffman, John D. Imboden and William L. Jackson, for 8,000 dollars. The pai’ties had been proceeded against as non-residents under the act of the general assembly of the reorganized government of Virginia, declaring persons in sympathy with the late rebellion to be non-residents. The defendant Higginbotham gave notice to the plaintiffs, in March, 1866, that he would move the circuit court of Up-shur county to reverse the judgment of 18th of November, 1868, for certain errors in the mode of proceeding, and in the manner of obtaining the same. The court overruled the motion of Higginbotham to reverse the judgment, on the 24th day of November, 1866, and lie excepted and applied to this court for a writ of error.
    
      In this court tbe defendants in error filed an affidavit and moved tbe court for a rule nisi against tbe plaintiff in error, requiring him to take tbe oath known as tbe suitors’ test oath, provided in tbe act of February 28th, 1865, at a previous term of this court, and when tbe case could not have been called for bearing.
    
      G. II. Lee for plaintiff in error.
    
      J. S. Wheat for defendants in error.
    
      
       See page 1.
    
   Brown, President

delivered the opinion of tbe court.

Tbe defendant' in error filed his affidavit and moved tbe court for a rule or order nisi against tbe plaintiff in error, requiring him to take tbe oath commonly called tbe suitors’ oath,, as provided in tbe act of February 28th, 1865.-

The plaintiff in error, by bis counsel, contested tbe motion upon tbe grounds: 1st. That the motion was made too late. 2d. That the aet did not apply to a writ of error but only to a supersedeas. 3d. That the cause of action arose since April 1st, 1865. But tbe motion was made at a term preceding that at which tbe cause could, under tbe rules of tbe court, have been beard, and was therefore not unreasonably delayed. It differs in that from tbe case of Nadenbousch vs. Sharer, 2 W. Va., 285, where tbe motion was delayed till the term at which the cause might be beard on its merits and tbe trial insisted on.

Tbe case at bar is within the language of tbe act of February 28th, 1865, and is also within the spirit of it. And it is manifest from the whole act, that it was not tbe intention of tbe legislature to limit tbe operation of tbe first section by tbe fourth, in using only the word “supersedeas” in tbe latter, instead of adding tbe words “appeal or writ of error.” To give tbe act tbe narrow or technical construction contended for by the counsel for the plaintiff in error, viz: that the act only applies to writs of supersedeas and not to appeals and writs of error, would be to defeat tbe object of tbe law upon a technicality and disregard tbe reason of tbe act in two out of every three cases, all standing on the same ground in substance. Spaulding vs. Preston, 21 Vt., 12.

As to the third objection, viz : that the cause of action in this case arose since April 1st, 1865, the first inquiry is, what is the cause of action in this case? Is it the alleged error in the judgment of November 18th, 1868, or in the judgment of November 24th, 1866. The former was rendered by the circuit court of Upshur against absent defen-' dants on order of publication and attachment, and the latter wras a judgment by the same court overruling a motion'by the said absentees to reverse the first judgment under the provisions of the statute. Code, chap. 181, and act of February 11, 1865.

No appeal could be had from the said judgment of November 18th, 1863. Barbee vs. Pannill, 6 Grat., 442; Platt vs. Howland, 10 Leigh, 510. The judgment here appealed from and which is the subject of review in this court is that of November 24th, 1866. And the alleged error therein is the cause of action in this case. Nadenbousch vs. Sharer, 2 W. Va., 285. And that having arisen since April 1st, 1865, the plaintiff in error is relieved by the statute of March 1st, 1866, from taking the suitors’ test oath as to that cause of action.

The motion of the defendant in error for an order nisi dismissing this cause upon the failure of the plaintiff in error to take the suitors’ oath, as provided in the act of February 28th, 1865, must therefore be overruled at the costs of the party making it.

Motion overruled.  