Majority
p. 631The People vs. Onondaga General Sessions.
Headnote
where a judg^by^a^coort edy is by writ not by mandamus"Motion for a peremptory mandamus. An alternative mandamus was ordered by this court (1 Wendell, 296,) to the general sessions of Onondaga, directing them to vacate a rule arresting the judgment on a conviction of one William Huntlev for perjury, or to shew cause. Cause was now shewn, and a peremptory mandamus refused.
V. Birdseye, (district attorney,) for the motion.
J. Jl. Spencer, contra.
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.