In this case, Carskadon brought an action of trespass in the Circuit Court of the county of Preston against Peerce and Williams, and sued out an attachment therein against the property of the Defendants. Judgment was taken against the Defendants on publication. After-wards, and within five years from the date of the judgment, Peerce and Williams appeared in the Court, and offered to file their petition for a re-hearing of the cause, which the Court refused, on the ground that the petitioners had failed to take and file with their petition the oath prescribed in such case, known as “the suitors test oath;” and the petition was not received. From this proceeding of the Circuit Court, an appeal was taken by Peerce and Williams; and the Supreme Court of Appeals of this State, at the January Term 1870 thereof, affirmed the judgment of the Circuit Court, and rendered judgment against Peerce and Williams for costs &c. The right of Peerce and Williams to file said petition for a re-hearing involved directly the question, whether so much of the act of the Legislature of this State, of the 11th of March 1865, prescribing and requiring the oath known and called “the suitors test oath” to be taken by the petitioners in such case, was contrary to the Constitution of the United States, and therefore void. The decision of the Supreme Court of Appeals of this State, was duly taken to the Supreme Court of the United States for review, by writ of error; and the Supreme Court of the United States upon due consideration reversed the judgment of the Supreme Court of Appeals of this State, because, in the language of Judge Field who delivered the opinion of the Court, “This case is covered in every particular by the decision of this Court in Cummins vs. the State of Missouri, and Ex parte Garland, reported in 4 Wallace.” We understand from this, *386fbat ^he Supreme Court of the United States reversed the judgment because so much of the act of 11th of March 1865, as prescribes -what is called and known as “the suitors test oath” is contrary to, and against the provisions of the Constitution of the United States, and is void, and-that by reason thereof, it was error in the Supreme Court of Appeals of this State to confirm the judgment of the Circuit Court of Preston county, by its judgment rendered on the 3rd day of March 1870. The mandate of the Supreme Court of the United States is now before us, and we are asked by Peerce and Williams, by their counsel, to comply with said mandate. We concur entirely in the correctness of the determination and decision of the Supreme Court of the United States aforesaid. The mandate of the Supreme Court of the United States must therefore be entered of record in this Court, and the judgment of the Supreme Court of Appeals of this State, of the 3rd day of March 1870, affirming the judgment of the said Circuit Court, must be reversed, and Peerce and Williams recover here against Carskadon their costs incurred in the prosecution of their writ of error in the Supreme Court of the United States, amounting to $80,-38, as appears to us by said mandate, (said costs to be collected but once from Carskadon.) The judgment of the Circuit Court of Preston county rendered in the cause must also be reversed, and Peerce and Williams recover judgment against Carskadon for their costs expended in this Court. And this Court proceeding to render such judgment as the Court below ought to have given, the cause must be remanded to the Circuit Court of Preston county with directions to receive the said petition of Peerce and Williams, for a re-hearing of the case, without the said test oath, and to grant the re-hearing prayed for without such affidavit, unless legal and sufficient reason other than the want of such oath or affidavit be shown why the prayer of the petition should not be granted; *387and further to proceed in the same as justice requires, .and the law directs.
HoffMAN, Paull and Moore, Judges, concur in the foregoing opinion.