Haight v. Turner

¶1It is a settled rule of practice m the Jbn~ glish courts, that on a motion for an information, or in air affidavit to hold to bail, the affidavit must' not be entitled* and if it be entitled, it cannot be read. The reason assigned is, that there is, at’ the limeno cause pending' in "the court, and' an indictment for perjury in malting such an affidavit, must fail, as it could not be shown that such' a cause existed in the court in which the affidavit was^ made.* The present case comes within, the reason of the _ , r _ 7 English rule. The cases' of Brooke v. Ewer, and Bayley v. Broome, cited from Strange, prove nothing on this point, as the reporter might have taken tfie title of the cause elsewhere. The affidavits, therefore, cannot be received. But on the merits, the court would have sustained the motion. The alleged ground of ^regularity was a mere pretext, and if it were allowed to prevail, the courts of common pleas might grant new trials in every case, and the provisions of the statute be thereby defeated. The verdict below was set aside as being against evidence. The °f mandamus is the proper remedy in this cáse.* But as affidavits.ought not to have been entitled, they cannot be received, and the motion must, therefore, be denied.

¶2Rule refused.(a.)