Everitt v. People ex. rel. Beach

1 Cai. Cas. 8, 1 Cole. & Cai. Cas. 149

• Court: New York Supreme Court
• Decided: May 15, 1803
• Status: Published

Opinion

HOFFMAN moved to enter a vacatur on a rule for a peremptory mandamus, and fet afide the mandamus which had been ifiued on the following fails i

A rule was obtained in July term 1802, that defendant íhew caufe, by Oitober term, why a mandamus ihould not iffue, compelling him to proceed in a caufe then depending before him, concerning the will of Thomas Beach.

A return was made to this rule, which, from the defendant’s counfel being unavoidably detained on his way to Albany, was not filed until the third day of the Oitober term.

On the firft day of Oitober term, Charles Beach attended, and obtained a rule for the mandamus : and on the third day, on filing the return, that rule was vacated.

Notice of the vacatur was given to the perfon who had ailed in behalf of Beach, and obtained the firft rule; but Beach had previoufly left Albany,.and the mandamus ifiued.

At the laft term Mr. Golden was charged with the bufineis, to make the proper application to the court, and to oppofe a peremptory mandamus. On Mr. Golden’s way to Albany, he met Mr. Morton, the attorney for Beach, when it was agreed, that all further proceedings fhould be flayed until the prefent term. Mr. Golden therefore did not further attend to the caufe.

The relator Beach attended at Albany the clofe of the term, employed other counfel, and obtained a rule for a peremptory mandamus, which has been ifiued.

Motion granted.