General

Vary against Godfrey

6 Cow. 587·New York Supreme Court·1827·NY

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Opinion

Vary against Godfrey. ALBANY, Feb. 1827. On certiorari to a justice’s court. The affidavit on which the writ was allowed, was taken before the attorney for the plaintiff in error. On this ground, (and another,) it was now moved to set it aside as irregular. For the mo-lion was cited, Taylor v. Hatch, (12 John. 340,) and Munro v. Baker, (6 Cowen, 396;) and against it, 5 Cow-en, 38; 1 Dunl. Pr. 220; 1 R. L. 140, 396; 2 Caines' Rep. 182 ; Laws N. JT. sess. 47, p. 297, s. 43; 6 John. Rep. 334; 3 Cowen, 345; 2 John. 371; 2 Cowen, 500 ; 1 TiddPs Practice, 451; Barnes' Notes, 60. The affidavit allowance of a before th® attorney es the suit. J. Crocker, for the motion. H. Putnam, contra. [MAJORITY — Curia.] Curia. This affidavit does not come within the rule laid down in Taylor v. Hatch, (12 John. Rep. 340.) That applies only to affidavits made before an attorney in a suit pending; not to those preparatory to the commencement of one. The affidavit is not entitled; and the attorney may or may not be retained at the time when the affidavit is made. The rule is thus qualified by the English cases. (Haward v. Nalder, Barnes, 60.) The motion must be denied. Motion denied.