Delancey v. Brownell
New York Supreme Court
W. EVERTSON moved for a rule on the court of common pleas, of Dutchess county, to show cause why a mandamus. should not issue, commanding them to vacate a rule enter-e(j jn that court, setting aside a iudgment and execution in e \ ° jo this cause, which was an action on a bail-bond in that court, from the affidavits which were read, the following facts appeared.
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W. EVERTSON moved for a rule on the court of common pleas, of Dutchess county, to show cause why a mandamus. should not issue, commanding them to vacate a rule enter-e(j jn that court, setting aside a iudgment and execution in e \ ° jo this cause, which was an action on a bail-bond in that court, from the affidavits which were read, the following facts appeared. J. Brownell, having been arrested in the court below, gave bail to the sheriff, and special bail not having been put in, the plaintiff commenced the action on the bail-bond. The writ was returnable in March term, 1808, and the sheriff…
1Opinion of the Court
Kent, Ch. J.
delivered the opinion of the court. An application for a mandamus, is an application to the discretion of the court, who are bound to grant, or refuse it, according to the exigency and justice of the case.
The court below set aside upon terms, a regular judgment by default upon a bail-bond. It appears by the affidavits, upon which the rule of the court below setting aside the judgment was obtained, that the judgment was set aside on the ground of surprise ; and the affidavits conclusively establish that fact, as respects the bail. There are peculiar and strong circumstances,…
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- Jeude v. SimsSupreme Court of Missouri · 1914
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