People v. Onondaga General Sessions

2 Wend. 631

Opinion

By the Court, Marcy, J.

The appropriate remedy in this case is by writ of error, and not by mandamus. In civil cases, where a judgment is arrested, and the party wishes to review the decision, the practice is for him to move the court to give judgment against him, and if his opponent neglects to make up the record, to obtain leave to do it himself, and then bring error. If the court below should refuse to give such judgment, a mandamus will issue compelling them. (2 Johns. C. 215. 19 Johns. R. 247.) So in this case, the district attorney may move the court to give judgment for the defendant, and then, on making up a record of acquittal, the judgment of the court below can be reviewed on writ of error. The peremptory mandamus is denied.