Blakesmore & Lawes v. Allen ( 1860 )

Baldwin, J.

The court below in refusing to sustain complainants’ motion, virtually held that the defendants had a right to answer under oath, notwithstanding the waiver, and that the provisions of the rule, as above referred to, were inoperative, and that the District Court had no power to establish such a rule. A majority of this court, as it is at this time constituted, have held that sections 1744-45-46-47 of the Code apply to chancery as -well as to civil proceedings. See Shepard v. Ford ante. Under this ruling, we think the rule of the District Court did not contravene any provisions of law, and was in force and operative when the motion ivas made.

We do not deem it necessary to refer to the able arguments of counsel, for and against the power of the court to establish such a rule in the absence of any statutory enactment upon the subject, as at this time our whole system of pleading and practice has undergone a material change. The motion should have been sustained.

Judgment reversed.