Davis v. Dyer , 37 Tenn. 679 ( 1858 )

McKinney, J.,

delivered the opinion of the Oourt.

This cause purports to have been brought up to this Court by an appeal in error, prosecuted in forma pau-peris; and a motion has been entered by the defendant’s counsel, to dismiss the appeal. The ground of the motion is, that the affidavit of the, plaintiff, upon ■which the appeal was allowed by the Court, was sworn to before a justice of the peace. The record shows, that the granting of the appeal, upon this affidavit, was opposed by the defendant; but upon its being made appear to the Court, that the plaintiff was confined to her bed, and unable to appear in Court, the objection was overruled, and the appeal granted.

In this the Court erred. We have repeatedly held, that' the oath must be taken in Court. The affidavit made before a justice, is a mere nullity. The justice had no authority to administer the oath; and the case is in no better condition than if no such paper were contained in the record. The oath of the party’s inability to bear the expenses of the appeal, is the substitute for the bond required by the general provision of the act of 1811. And as the- taking of such bond is a judicial act of the Court, so is the taking of the oath also. It follows, that the appeal which the Court had no power to grant without either a bond or the oath taken in due form, as prescribed by the act of 1821, must be dismissed. See 7 Verger’s Rep., 277.