
    James Everitt, Surrogate of Orange County, ads. The People of the State of New York, ex relat. Charles Beach.
    Peremptory mandamus set aside on motion, if unfairly issued.
    A rule was obtained in July term, 1802, that the defendant show cause, by October term, why a mandamus should not issue, compelling him to proceed in a'cause then depending before him, concerning the will of Thomas Beach.
    A return was made to this rule, which, from the defendant’s counsel being unavoidably detained on his way to Albany, was not filed until the third day of October term.
    On the first day of October term, the relator attended, and obtained a rule for the mandamus: and on the third day, on filing the return, that rule was vacated.
    Notice of the vacatur was given to the person who had acted in his behalf, and had obtained the first rule; but the relator had previously left Albany, and the mandamus issued.
    At the last term counsel was employed to move to set this mandumus aside; on his way to Albany, he met the attorney for Beach, when it was agreed that all further proceedings should be stayed until the present term. No further attention was paid to the cause.
    The relator attended at Albany the close of the term, employed other counsel, and obtained a rule for a peremptory mandamus, which was issued.
    
      Hoffman,
    
    
      on the above facts, moved to enter a vacatur on the rule for the pei’emptory mandamus, and to set aside the mandamus itself, which was
   Ordered accordingly.  