Norton v. Barnum

20 Johns. 337

• Court: New York Supreme Court
• Decided: January 15, 1823
• Status: Published

Opinion

Per Curiam.

The cases of Clason v. Gould, (2 Caines’ Rep. 47.) and Van Vechten v. Hopkins, (2 Johns. Rep. 293.) fully decide, that the affidavit on which the Judge granted the order to hold to bail, is entirely defective. It follows, that the defendant has been improperly held to baib The affidavit now offered by the plaintiff cannot be received. According to the practice of the Court of K. B., in England, a supplemental affidavit, for the purpose of curing a defect in the original affidavit, is not admissible. (Molling v. Buckholtz, 2 Maule & Selwyn, 563.) If a default has been entered on an imperfect affidavit, it will be set aside, notwithstanding the facts might warrant the entry of a default. Besides, an affidavit made now, cannot retrospect, so as to authorize holding the defendant to bail, upon a defective affidavit. The motion must be granted.

Motion granted.