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People ex rel. Musgrove v. New-York Common Pleas

9 Wend. 429 Court N.Y. Sup. Ct. English

Delivered by Sutherland, J.

Contents

Majority

p. 429
The People, on the relation of J. Musgrove, vs. The New-York Common Pleas.

Headnote

To a return to a mandamus, a relator is not allowed to demur specially; if dissatisfied with the return, he may obtain a further or supplementary return.
Mandamus, The relator having obtained an alternative mandamus, commanding the judges of the common pleas of New-York to sign and seal a bill of exceptions which had been tendered to them, or to shew cause, the judges made return that they refused to seal the bill without the same should contain all the evidence relating to the matters of law therein excepted to, and which they alleged the bill did not contain. To this return the relator demurred specially, that In the return it is not alleged that the bill does not contain all the evidence material and necessary to present the question of law raised by the bill. A motion was now made on the behalf of the judges of the C. P. to set aside the demurrer, on the ground that no demurrer can be put in, in such cases.
D. Lord, jun. for the motion.
p. 430
ALBANY,
June, 1832.
A. S. Garr, contra, citing 8 Cowen, 123; 1 Wendell, 421; 5 id. 103.

By the Court,

The motion must be granted. This court will not permit subordinate tribunals to be harassed with special demurrers to returns made by them. If the relator is dissatisfied with a return made, conceiving it to be evasive, or the construction of any matters alleged in it to bo of doubtful character, upon suggestion of its insufficiency, a further or supplementary return will be ordered, and thus the rights of a party as effectually protected as if permitted to demur specially.