Majority
p. 392Ex parte Bacon and Lyon. ALBANY, Oct. 1826.
Headnote
SettiD" aside defouft^in^ court of com-mou pleas, is Blatter of discretion with that court.The common pleas of St. Lawrence county had set aside a regular judgment by default against the defendant, in a cause wherein the relators were plaintiffs, and one
And this court will not interfere on such a subject by mar.diunus.
p. 393
Taylor defendant, on the ground of merits, on payment of costs.
And this court were now moved that a mandamus issue, commanding the C. P. to vacate that rule.
B. S. Doty, for the relators.
The motion w7as not opposed ; but
The common pleas must be their own judges, upon the circumstances before them, whether they will set aside a default upon the merits. This is so much a matter of discretion, that we w ill not interfere by mandamus. The granting or refusal of such an application, is governed by no fixed principles. No positive rule of law has been violated by the court below; nor can we fix bounds to their discretion upon this subject.
Besides; upon the circumstances disclosed here, we rather think we should have set aside the default, in question on our own rules of practice. But upon this we give no opinion.
Motion denied.