Ex parte Mallard

6 Cow. 593

Opinion

Curia.

The bond was clearly defective. But, for the reason given in the last case, an alternative mandamus must go. The practice should be uniform in all these cases ; and the present case is a striking illustration .of the propriety of the rule just pronounced, aside from the quesi tion of jurisdiction. The appellee lay by a longtime,*be; ⅛⅜ for aught that appears, fully «ware of the objection which he finally took, to oust, the C. P. of jurisdiction. Great expense was incurred on both sides, in preparing the cause for trial, which he should have prevented by moving the court to dismiss the appeal the very first op* portunity. Independent of the question as to the right of the C. P. to award this large sum for the ordinary expenses of the suit; we are prepared to say that, in the exercise of a sound legal discretion, they should not have done so.

Rule for an alternative mandamus.