1. Not when another adequate, specific, legal remedy.
II. To Inferior Courts, where it lies.
III. To Corporations.
1. General principles on which granted.
1. Not where another adequate, specific, legal remedy.
1. Plaintiff, administrator, recovered in the common pleas of Ulster, a verdict
under $25, and that court refused to give judgment in his favor for the
Motion for a mandamus denied; a writ of error is the proper rem-
edy. Jansen v. Davison, 480. See vol. 2, p. 72.
2. Motion for a mandamus to a county court which had granted a new trial,
refused, because the party had acquiesced in the decision.
Weavel v. Lasher, 464. See vol. 1, p. 241.
II. To Inferior Courts, where it lies.
3. If an inferior court refuse without cause to seal a bill of exceptions, the
court will award compulsory process. In this case it was shown by affi-
davit, that the facts in the bill were untrue, therefore motion for a manda-
mus was denied. People, ex rel. Allaire v. Judges of Westchester, 474.
See vol. 2, p. 118.
4. An arrest of judgment is an interlocutory order, not a final judgment.
The court must give final judgment, if required by either party. Rule to
show cause why a mandamus should not issue to the common pleas of
Rensselaer, granted for that purpose. Fish v. Weatherwax, 487.
See vol. 2, p. 215.
5. Where a person is already in office by color of right, the court will not
grant a mandamus to admit another person, who claims to have been duly
elected. The proper remedy is by an information, in the nature of a quo
warranto. The People v. The Mayor, &c. of New York, 79.
Cases and authorities, 80, n. (b.)
6. An application to restore an attorney to his office in the common pleas of
Delaware, denied on the ground that the cause of his removal was not
stated nor shown to be improper. Ex parte Gephard, 434.
7. On an application for a mandamus to a county court, the practice is first
to grant a rule to show cause.
The People v. The Judges of Cayuga, 483. See vol. 2, p. 68.
See vol. 2, p. 217, 217-90, for cases upon the law of Mandamus.
See CONSIGNOR AND CONSIGNEE.
12 Modern R. per Buller, J., is not a book of authority. Dougl. 82.
The People v. Garnsey, 563.
Pounds, &c., instead of dollars, alleged in the narr. no error, and not within
the act on this subject. The judgment must be dollars and pounds, are
not an unknown money of account like foreign money, and the court will
ex officio take notice of the value in rendering the judgment.
Johnson v. Hadden, 501. See vol. 2, p. 274.
I. Who are the proper Parties to a bill to redeem.
II. Who are the proper Parties to a bill for the Sale of
Mortgaged Premises.
I. Who are the proper Parties to a bill to redeem.
1. A. being indebted to B. on the 23d March, 1787, assigned to him, as se-
curity for the payment of the debt, certain lands and a lease in fee, for the
same. B. executed a bond to A., conditioned, that in case the debt and in.
terest were paid on or before the first of June, 1788, he would reassign the
lease and premises to A. and give him a receipt for the debt. The debt not
being paid at the time, B. took possession of the premises under the assign-
ment, in July, 1792, and assigned his interest in the lease and premises to
C. and D., who took possession thereof. A. afterwards brought a bill to
redeem the premises, on the ground that the transaction between him and
VOL. III.
99
B. amounted to a mortgage, and on appeal from the decree of the court of
chancery, it was held, that C. and D. ought to have been made parties to
the suit, and that the decree of the court below, for that reason, was re-
versed, with liberty to the respondent to have his bill dismissed in the court
below, or to amend it, by adding all proper parties; and in that case, the
evidence taken to stand, as between the present parties, saving all just ex-
ceptions, and that each party, in this court, pay his own costs.
Hickock v. Scribner, 311, 610.
II. Who are proper parties to a bill for the Sale of Mort-
gaged Premises.
2. A. being indebted to B. by a promissory note, in the sum of $1,491, as
collateral security, for the payment, endorsed to B. another note made by
C. to A. or order, for $1,551, and at the same time delivered to B. a mort-
gage executed by C. to A., to secure the payment of the note so endorsed;
but made no assignment of the mortgage in writing. B. filed a bill against
C. for the sale of the mortgaged premises, to pay his note. It was held,
that by the endorsement of the note, and delivery of the mortgage, B. had
an equitable (if not legal) interest in the mortgage; but that A. if he had
not the legal estate, was interested in the subject, and ought to have been
made a party, as he was entitled to recover back the mortgage on payment
of the $1,491. And the decree of the court of chancery ordering a sale,
&c., was reversed, with liberty to B., to have his bill dismissed, or to add
proper parties, on payment of the costs in the court below.
Johnson v. Hart, 322, 608.
See PARTIES TO SUITS IN EQUITY.
1. A naturalization retrospects and confirms a former title.
Jackson, ex dem. Culverhouse v. Beach, 467. See vol. 1, p. 309.
2. On warranty of American property, held not to be verified by the char-
acter of the plaintiff (the owner,) who was a Frenchman, and had emi-
grated flagrante bello, it being condemned in the admiralty abroad for that
cause. The plaintiff is however entitled to a return of premium.
Duguet v. Rhinelanders, 458. See vol. 2, p. 476.
1. On newly discovered Evidence.
2. Verdict against law.
3. Surprise.
II. When refused.
1. When Plaintiff could only recover Nominal Damages.
2. For want of Evidence, which it is manifest could be supplied
at the second trial.
3. When the act of the Court upon which the motion is founded,
is Discretionary.
III. Practice on.
IV. Costs on.
I. When granted.
1. Of newly discovered Evidence.
1. New trial granted on the ground of the discovery of new evidence. A
paper before offered as a record considered as no evidence, and a nullity.
Doe v. Roe, 467. See vol. 1, p. 402.
2. New trial awarded the second time, on the ground that the jury must have
intended to overrule the court on the question of law previously settled, aud
as a verdict against law, the costs are to abide the event of the suit.
Silva v. Low, 459. See vol. 1, p. 336.
3. Surprise.
3. When the court in their judgment rely upon a fact which does not exist,
and which can be shown to be otherwise, they will grant a new trial upon
affidavits to that effect, that the party has been surprised, and payment of
costs. Duff v. Lawrence & Van Zandt, 162. See 547, 598.
1. When Plaintiff could only recover Nominal Damages.
4. Although the plaintiff be strictly entitled to a verdict, the court will not
award a new trial nor set aside a nonsuit ordered by the judge, at the trial,
for the sake of nominul damages only. Brantingham v. Fay, 450.
See vol. 1, p. 255.
2. For want of Evidence, which it is manifest could be supplied at the sec-
ond trial.
5. A new trial will not be granted on the mere technical objection, as to the
admission of a printed statute book in evidence, when it appears that the
printed statute was correct, and an exemplification of it, on a new trial,
would be the same evidence. Duncan v. Duboys, 125. See 468, 532.
3. When the act of the Court upon which the motion is founded, is Discre-
6. After the proofs were closed on both sides at the trial, and the witnesses
had departed, a new witness just appeared who had not before attended on
the part of the defendant, but he was refused to be examined, and the re-
fusal held to be proper, and to rest in the discretion of the court.
Alexander v. Byron, 515. See vol. 1, p. 348.
7. A motion for a new trial because the judge refused a witness at the trial,
and every matter objected to on the trial must come up by way of case.
Alexander v. Byron, 494.
8. On making a case on which to found a motion for a new trial, a certificate
to stay proceedings is necessary, or the opposite party may proceed.
Van Rensselaer v. Dole, 447.
The verdict being found against the charge of the court on this point, was
considered as a verdict against law, and the costs therefore to abide the
event of the suit. Dole v. Rensselaer, 458. See vol. 1, p. 2.9.
A mere servant or bailiff in the possession of lands is not entitled to a notice
to quit. Jackson, ex dem. Fitzroy v. Sample, 449. See vol. 1, p. 231.
See EJECTMENT. LANDLORD AND TENANT.
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