People ex rel. Beach v. Seneca Common Pleas

Headnote

Amanda-beUS 'granted where parties cecPa ayeaa-Tn the proceed-be set aside,

Motion for a mandamus. The relator recovered a juclgmen* before a justice against a constable and his sureties, the former having made himself liable in relation to an execution issued on a judgment in favor of the relator against J. Knox, g_ gCutt and J. Stark. The defendants appealed. On the trial of the cause in the common pleas, in February, 1828, it was discovered that the justice, in stating the demand of the plaintiff, had stated that the action before him was brought on a judgment against J. Knox and S. Scutt, omitting the name of J. Stark. The common pleas permitted the plaintiff to withdraw a juror, and the plaintiff on the next day applied for a rule that the justice amend his return, which the court refused, and directed the defendant’s attorney to em~ pannel a jury, on the ground that they had erred in allowing

the plaintiff to withdraw a juror without the consent of the defendants. A jury was empanelled, who, under the directions of the court, found a verdict for the defendants. The plaintiff excepted to the opinions of the court, and brought a writ of error ; but being now advised that a mandamus and not a writ of error is the proper remedy, he accordingly applies for a mandamus, directing the common pleas to set aside the verdict and judgment rendered thereon, and to grant the rule for an amendment of the return of the justice.