In re Gephard

1 Johns. Cas. 134

• Court: New York Supreme Court
• Decided: July 15, 1799
• Status: Published

Opinion

Per Curiam.

The affidavit is insufficient. It is not shown that the court below acted improperly, or that the fact charged against Gephard, on which hé was removed, was founded in error or mistake.

(a)

The motion must be denied.

N. B. The affidavit was afterwards amended, on which the court granted the rule.

The affidavit should contain a precise substance of facts, and it will be insufficient if the allegations be not so positive, that an indictment for perjury could be maintained upon them if false. Rex v. Sargent, 5 T. R. 466 It must also appear that the applicant is entitled to the relief he prays. Rex v. Bishop of Oxford, 7 East, 345.