People ex rel. Knapp v. Judges of the Court of Common Pleas

4 Cow. 73 | N.Y. Sup. Ct. | 1825

Curia.

It is objected that a motion to quash the writ .rill not lie till it is returned. Such is the general rule; but * case is cited, (The People v. The Judges and Supervisors of Ulster, 1 John. Rep. 64,) hy which it appears that the service of an alternative mandamus maybe by delivering a .copy, at the same time showing the original. rp^ party thus having a right to retain the writ, the Judges must make a return without it. The writ itself cannot be returned by them; and we think the case an exception to the rule. The motion is, for that reason, in time. We think, however, it was not necessary to recite the bill of exceptions in the writ; the motion to quash or supersede it is, therefore, denied; but as the defendants may not have had time to prepare a return, we give them to the next term for this purpose, when, if the retumbe not made, a peremptory mandamus must go.

Rule accordingly.