Majority
p. 159*In the Matter of P. Gephard.
Headnote
A rule to show cause why a mandamus should not" issue to a court of common pleas, to restore an attorney, was refused, because the affidavit did not state, that the court had improperly removed him.Hopkins moved, on an affidavit, stating that Gephard had been removed by the court of common pleas of the county of Delaware, from the office of an attorney of that court, for a rule, that the judges of that court show cause by the first day
p. 160
of the next term, why a mandamus should not issue commanding them to restore him to his office.
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.[1]
The motion must be denied.
N. B. The affidavit was afterwards amended, on which the court granted the rule.
(a) (a) 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.