Whitney v. Warner

Where there is0no suit pending, but the affidavit is 'to be used as the foundation of a suit, it should not be entitled in any cause. This is the case of affidavits to ground a motion .for a mandamus, an information, or, (in England,) to hold the defendant to bail. But we see no objection to entitling the affidavit in the suit in the Court below. . The statute, (1 R. L. 396, s. 17,) requires the party applying for *501a certiorari to make affidavit satisfying the Judge or commissioner who allows it, that there is reasonable cause for granting it, for error in the judgment below, which shall be specilied in such affidavit. This is properly a proceeding in the Court below. If entitled in the Supreme Court, it would have been irregular, according to the case of Haight v. Turner, cited on the part of the defendant.

As to the second objection, it is enough that the statute expressly declares that the affidavit may be taken before any person authorized to take affidavits to be read in the Supreme Court.

Motion denied.