Anonymous — 5 Cow. 1

Majority

p. 1

Anonymous.

Headnote

Papers upon 'vhich a ™°" tion is made or opposed should attorney.^IUs his duty to file them of course, without any m0tl0n for thaj purpose; and the court will d^thP'i^on sugestión, i;0 with the paV w¿° made an aindavit to support or oppose a motion, to objoct that it is fikUwith 'a view to prose-cut.6 him for penury.

This cause had been submitted to referees (under the statute) who reported for the plaintiff: whereupon the í r defendant’s attorney moved to set the report aside, upon several affidavits made by the defendant before commissioners in the city of Albany; and the motion was heard upon . _ - - -. .. — - - the calendar, and granted several terms ago ; hut the defendant’s attorney omitted to file the affidavits upon which J r the motion was founded. The plaintiff wishing to prosecute the defendant for perjury in his affidavits, applied for and obtained an order of Savage, Ch. J. directing the defendant’s attorney to file them with the Clerk at Albany; hut he, under the defendant’s direction, refused to do this.

E. Livingston(Dist. Attorney of Albany,)

now, upon an . . n , , , , — — affidavit of this, and that the order had been served, moved to make it a rule of this Court.

J. Lansincontra, g, y

objected that no notice of the motion u had been given by the plaintiff’s attorney ; and though he admitted that, in the case of a non-enumerated motion, it is the duty of the attorney to file the affidavits; yet he said the practice among the bar had been different in relation to enu

p. 14

merated motions. Beside, the defendant ought not to ho compelled in this manner to criminate himself. This wat not only so at common law ; but under the express prov: sions of the constitution, (art. 6, sec. 7.)

A formal notice of motion is not necessary. We would order you to file the affidavits, upon an informal suggestion, that you had omitted to file them. All motions stand upon the same footing in this respect, whether enumerated or non-enumerated. It is the duty of the attorney to file the original papers with the Clerk at the time of making, or opposing the motion. Though copies are furnished, it is upon the originals that the judgment or decision is founded. It does not lie with the defendant, in answer to this application, to say that filing the affidavits will criminate him. The question is between the Court and the attorney. The motion must be granted.

Motion granted.^[1]

(a) (a) Mr. Livingston informed mo that he relied for his practice on what Yates, J. said in Rex v. Wilkes, (4 Burr. 2571.)