12 Johns. 460 | N.Y. Sup. Ct. | 1815
The1’ affidavits .are Wrongly entitled.. Until an attachment issues, the affidavits must fee entitled ih the Civil suit. There is-'no such suit pending here as that menti'oned in- the title -. of these affidavits^ ■- .. - ,'vv/:-
I-do ®ér.thipife '--fila*, pn. -an ’apptitjatión of this kind, the affidavits ought to fee entitled at all; but here they" áre entitled, and erroneously, and'eanhot be read. • >
I -do not consider i| necessary that the affida* vits shoti-id fee entitled at all, and the present title may fee rejeeted as surplusage.M-t is merely to inform the court, that Bronson is the relator in a'matter in which Mitchill is concerned. ;
I agree with the chief justice, that the affidavits are not properly entitled,- and cannot be read. .
This is like an application for an information, and no title to the affidavits was necessary; but I concur with my brother Van Ness, in the opinion, that the title given in the affidavits ought to be rejected as mere surplusage.
In Haight v. Turner, (2 Johns. Rep. 371.,) the court said, that an affidavit, on which to ground a motion for a mandamus to a court of C. P., must not be entitled, for the same reason, that, according to the practice in the English courts, affidavits on a motion for an information, or to hold to bail, must not be entitled, namely, because there is, at the time the affidavit is made, no cause pending in the court. As to entitling affidavits, the English cases appear to have been fluctuating any contradictory, it being a matter of form, and not much regarded. But the court of K. B. 37 Geo III. Trim, settled the practice as to affidavits to hold to bail, by a general rule, declaring that they should not be entitled, in any- cause. '(King v. Cole, 6 Term Rep. 640. Hollis v. Brandon, 1 B. & P. 36. Green v. Redshaw, id. 227. Clarke v. Cawthorne, 7 Term Rep. 321. Id. R. G. 454.) In Rex v Lawrence, (Sayer, 218.,) it was decided, that on a motion for a rule to short1 cause why an information for a misdemeanor should not be filed, the affidavits ought not to be entitled, because, until the rule was granted, there was no cause depending'in court. " The same point was ruled in Rex v. Jones, and Rex v. Robinson, (Str. 704, and note in 3d ed. by Nolan;) but the affidavits produced by the defendant on showing cause, may be entitled, King v. Pierson, (And. 313.,) but in Rex v. Harrison, (6 Term Rep. 60.) it was held that the latter need not be entitled, though, after the rule is made absolute, the proceedings must be entitled. (6 Term Rep. 641.) So in Bevan v. Bevan, (3 Term Rep. 601.) it was decided, that affidavits, on which a motion was made for an attachment, for not obeying an award, the submission to which had been made a rule of court, need not be entitled; though the affidavits b> the defendant, on showing cause, must be entitled. Affidavits to set aside an attachment granted, but not, in fact, Issued, must be entitled in the name of the king. (7 Term Rep. 438, 529.) And it seems that an affidavit showing cause, is not properly entitled, unless dt contains tiie-chtistian names, as well as the surnames of the parties, Fores v. Dieman, (7 Term Rep. 661.) Affidavits on a motion to stay proceedings in a bail bond suit, must be entitled in that suit. (Pell v. Jadwin, 3 Johns. Rep. 448. 5 Johns. Rep. 367. 1 Bos. & Pull. 337.)
