Fox v. Johnson

3 Cow. 20

• Court: New York Supreme Court
• Decided: August 15, 1824
• Status: Published

Opinion

Woodworth, J.

He should have employed some one other than the attorney for the plaintiff. The practice of resorting to the attorney for the plaintiff in error is a dangerous one. It is liable to great abuse, being in the hands of one who is interested to reverse the judgment. The rights of the defendant in error are concluded by the return, who must submit, or be put to the expense and delay of an action, if the return be false.

Sutherland, J-

It is our duty to reject this return, on the same principle that we refuse to hear an affidavit, taken before the attorney in the cause. It might be different, if the attorney simply wrote what the Justice dictated, acting the part of a mere amanuensis.

Foot. The present case is little, if any thing, beyond that.

If the Justice dictated the return, it was very easy to say so in the affidavits.

Foot. The rale which the Court appear inclined to establish, would hardly allow the attorney to correct a clerical or grammatical inaccuracy, or to make a copy of the return.

Savage, Ch. J.

That would, perhaps, be a different case, hut the attorney here draws the whole return, upon the general request of the Justice. We are all clearly in favour of the motion.

Motion granted.