People v. Tioga Common Pleas , 1 Wend. 291 ( 1828 )

By the Court,

Savage, Ch. J.

The common pleas erred, and an alternative mandamus would have been granted, had the affidavit not been entitled. It is the settled practice of this court, that on a motion for a mandamus, the affidavit must not be entitled. The reason is, that at the lime of the making of the affidavit, there is no cause pending in this court; and an indictment for perjury in making such an affidavit must fail, as it could not be shown that such a cause existed in the court in which the affidavit was made. (2 Johns. R. 373.)

Motion denied.