Majority
p. 273*Samuel T. Atwater and Emanuel Ruden agt. Ezra Williams imp’d with Amos S. Hutchinson and Avery M. Campbell. September Term, 1846.
Headnote
Where moving papers were alleged to have been wrongly entitled, and the opposing papers, which showed the defect in the entitling, were entitled in the same way; held, that the opposing papers could not be used to found such an objection upon.Motion by defendant, Williams, that plaintiffs file security for costs.
Defendant, Williams, had obtained and served ah order, that plaintiffs file security for costs, or show cause, &c.; ana moved upon the papers upon which the alternative order was
p. 274
obtained, entitled as above. Plaintiffs’ affidavit to oppose the motion was entitled in the same way.
D. Wright, defendants' counsel.
J. B. Lathrop, defendants' attorney.
N. Hill, Jr., plaintiffs' counsel.,
W. H. Green, plaintiffs' attorney.
Plaintiffs’ counsel insisted .that the affidavit, on which the order to file security or show cause, &c., was. granted, was wrongly entitled, and could not be read; for the reason that the plaintiffs’ affidavits showed that Campbell, one of the persons named as impleaded, was dead, and therefore his name should not appear in the title of the cause.
Defendants’ counsel insisted, first, that the objection was not well taken. Second, that plaintiffs’ affidavits could not be used to prove the death of Campbell, as they were entitled in the same way.
Held, that plaintiffs’ affidavit, thus entitled, could not be used to found such an objection upon. Motion granted.